text:
    In the Matter of the Claim of Daniel Himbele et al., Appellants, v State of New York, Respondent.
    (Claim No. 60295.)
    Submitted February 8, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      William J. Corcoran for appellants.

      Bernard F. Carlin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

On the date of the accident, claimant, a surveyor employed by a subcontractor, was checking grades on the Brooklyn-Queens Expressway pursuant to a safety improvement contract entered into between the State and Lizza Industries, Inc. The general contract required Lizza Industries to close the extreme right-hand lane in the area immediately adjacent to where claimant was working. Because of the failure of the general contractor to close this lane, claimant was struck by a traffic cone propelled by a passing truck. This negligence claim is premised on the State’s failure to enforce the terms of the general contract calling for the closure of the adjacent lane by the general contractor.

Although the instant claim is not predicated on sections 102 and 139 of the Highway Law, there is nothing in the record to support the contention that the contractual obligation of the State here exceeded that of the County of Nassau in Lopes v Rostad (45 NY2d 617). The duty to erect safety barriers and place warning devices around the work site was, by contract, vested exclusively in the general contractor. That the State supervised and inspected the work as it progressed, imposed no affirmative duty upon it running to claimant to assure that safety barriers were properly placed (see Ramos v State of New York, 34 AD2d 1056, mot for lv to app den 28 NY2d 487).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Cablevision Systems Development Company, Appellant, v Board of Assessors of the County of Nassau, Respondent.
    Argued February 7, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      Stephen J. Fallis and Horace Z. Kramer for appellant.

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondent.

      Robert L. Beebe and Richard J. Sinnott for State Board of Equalization and Assessment, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Inasmuch as plaintiff in this case conceded that the property sought to be taxed was properly taxable and did not allege that the tax assessors lacked jurisdiction over the property but, rather, sought only a partial exemption, we agree with the Appellate Division that a declaratory judgment action could not properly be brought upon the facts alleged. (See Sikora Realty Corp. v City of New York, 262 NY 312, 317-318; Young Women’s Christian Assn. v City of New York, 217 App Div 406, 410, affd 245 NY 562.) This is so even though, as our decision in Matter of Manhattan Cable TV Servs., Div. of Sterling Information Servs. v Freyberg (49 NY2d 868 [decided herewith]) demonstrates, the property was, in fact, not subject to taxation. We would note, however, that plaintiff has also commenced a separate tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law, and will, in light of our decision in Manhattan Cable TV (supra), receive relief from taxation in that proceeding.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    In the Matter of Manhattan Cable TV Services, Division of Sterling Information Services, Inc., Appellant, v Michael Freyberg et al., Constituting the Tax Commission of the City of New York, Respondent.
    Argued February 7, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      Stuart Robinowitz, Robert S. Smith and Ronald W. Meister for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and Morris Einhorn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division' should be reversed, with costs, and the matter remitted to Special Term for further proceedings on the petitions. The question certified is answered in the negative.

Section 102 (subd 12, par [d]) of the Real Property Tax Law includes in the definition of real property subject to taxation "[telephone and telegraph lines, wires, poles and appurtenances; supports and inclosures for electrical conductors and other appurtenances, upon, above and underground”. Respondent contends that petitioner’s cable television equipment is "functionally analogous” to telephone and telegraph equipment and that it should be taxed pursuant to section 102 (subd 12, par [d]) of the Real Property Tax Law. However, inasmuch as the statute itself fails to define the terms "telephone or telegraph”, those words may be given their ordinary meaning (see Quotron Systems v Gallman, 39 NY2d 428, 431; see, also, McKinney’s Cons Laws of NY, Book 1, Statutes, § 234), with any ambiguity in the statute to be construed most strongly in favor of the taxpayer and against the government (American Locker Co. v City of New York, 308 NY 264, 269; McKinney’s Cons Laws of NY, Book 1, Statutes, § 313, subd c). When so construed, we do not believe section 102 (subd 12, par [d]) of the Real Property Tax Law authorizes taxation of petitioner’s equipment as real property. We are satisfied from the record before us that there are significant differences, in both structure and function, between cable television equipment and telephone and telegraph equipment — the former, for example, allowing only one-way communication. These differences, as a matter of law, preclude taxation of petitioner’s equipment upon the theory that it is "telephone or telegraph” equipment within the meaning of the statute. (Cf. New York State Cable Tel. Assn. v State Tax Comm., 59 AD2d 81, 83.)

Nor do we believe that petitioner’s equipment may be taxed as an appurtenance to telephone lines. We would note that the transmission lines through which petitioner transmits its signal are taxed pursuant to a different statutory authority (Real Property Tax Law, § 102, subd 17) and are not the subject of this proceeding. However, even if we were to assume, as the trial court apparently did, that these lines were so similar to telephone lines that they could be considered such for tax purposes, the movable equipment in petitioner’s facilities and in the homes of subscribers to petitioner’s cable television service would still not be taxable. As we have only recently stated, "section 102 (subd 12, par [d]) of the Real Property Tax Law is 'aimed principally at expanding the definition of real property with respect to utility companies’ ”. (Matter of Quotron Systems v Irizarry, 48 NY2d 795, 797, quoting Matter of Crossman Cadillac v Board of Assessors of County of Nassau, 44 NY2d 963, 964.) Inasmuch as petitioner is not a utility (cf. Matter of Ceracche Tel. Corp. v Public Serv. Comm., 49 Misc 2d 554), its movable equipment is not subject to taxation as an appurtenance to telephone lines pursuant to this section.

Chief Judge Cooke and Judges' Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Raymond B. Kerr, Respondent, v Harvey Weisenberg, as President of the City Council of the City of Long Beach, et al., Respondents.
    Submitted February 11,1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      David N. Hilgendorff, Corporation Counsel (Paula E. Kennedy of counsel), for appellants.

      Bernard Freemont for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for our review should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (65 AD2d 815), to which we add only that relinquishment of rights conferred by section 81 of the Civil Service Law may result, on a sufficient demonstration, from an abandonment without the necessity of a written resignation. On this record, however, we agree with the court below that petitioner did not abandon his statutory rights.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Paul V. Ansbro, Respondent, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Appellants.
    Argued February 15, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Peter Lavigne, Carolyn E. Demarest and L. Kevin Sheridan of counsel), for appellants.

      Nicholas T. Montalto for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the determination of respondent police commissioner should be reinstated. In light of the determination made by the commissioner, which we find to be supported by substantial evidence, that petitioner did on many occasions knowingly apply for and obtain overtime payments to which he was not entitled, the Appellate Division erred in disturbing the sanction of dismissal imposed by the commissioner. It is well settled that an administrative sanction is not to be set aside as excessive unless it is so "clearly disproportionate to the offense and completely inequitable in light of the surrounding circumstances” (Kostika v Cuomo, 41 NY2d 673, 676) as to be " 'shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233; accord Schaubman v Blum, 49 NY2d 375). In view of the extent and nature of petitioner’s purposive and knowing misconduct, it cannot be said that the sanction imposed by the commissioner was excessive under this standard.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


author:
      Per Curiam.
     Chief Judge Cooke

text:
    Rob Tess Restaurant Corp., Respondent, v New York State Liquor Authority, Appellant.
    Argued February 8, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      Martin P. Mehler and Warren B. Pesetsky for appellant.

      William P. Maloney and Joseph E. Porcelli for respondent.
   OPINION OF THE COURT

Per Curiam.

The judgment of April 17, 1979 of the Appellate Division should be modified by striking therefrom everything after the word "cancellation” and remitting the matter to the Appellate Division with directions to remand it to the authority for the imposition of an appropriate penalty other than cancellation.

We agree with the Appellate Division that in view of the 37-year unblemished record of the licensed premises and the owner’s immediate intervention in the short altercation the penalty of cancellation is "so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct” (Matter of Pell v Board of Educ., 34 NY2d 222, 234). However, under CPLR 7803 (subd 3) the establishment of an appropriate penalty other than cancellation should be left to the authority (Matter of Ahsaf v Nyquist, 37 NY2d 182, 186; cf. Matter of Shore Haven Lounge v New York State Liq. Auth., 37 NY2d 187, 191; Matter of Pell v Board of Educ., supra, at p 234). A reviewing court is free to state the maximum penalty the record will sustain, but should leave the exact nature of the penalty to be imposed to the discretion of the agency. If cancellation is precluded as excessive, it may well be that the State Liquor Authority would deem it appropriate and preferable to fashion some penalty different from that which the Appellate Division would impose. In any event, responsibility for fixing the penalty is vested in the administrative agency. The possibility of "circular proceedings” suggested by the dissent is, therefore, more apparent than real.

Chief Judge Cooke

(dissenting). I agree that the penalty must be set aside as "shocking to one’s sense of fairness”. But I cannot endorse the practice of automatically remitting such a case to an administrative agency for it to assess yet another penalty which will be subject to yet another round of judicial review.

The rule governing reassessment of administrative penalties was established in Matter of Pell v Board of Educ. (34 NY2d 222, 234): "When an administrative abuse of discretion is determined to have occurred, it may be appropriate more often to remand the matter for the fixing of the sanction by the agency initially exercising the power unless in the circumstances peculiar to a particular case we deem the record sufficient to permit the reviewing court to assess the permissible measure of punishment warranted.” Yet, in those few instances since Pell where this court has annulled a penalty, no uniform procedure has been followed. In some cases the court, with only a few conclusory comments, has approved judicial assessment of the appropriate sanction (see Matter of Shore Haven Lounge v New York State Liq. Auth., 37 NY2d 187, 191). Other matters have been remitted to the appropriate agency for the fixing of a new penalty, again accompanied by little in the way of explanation (see Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285). Indeed, on at least one occasion, the question of who should set the new sanction provoked sharp disagreement, and a partial dissent, in this court (Matter of Ahsaf v Nyquist, 37 NY2d 182, 186-187). It is now obviously time for this court to adopt and adhere to a general principle capable of reasoned application in these cases.

There are said to be two conflicting considerations at work when a court annuls a penalty: on the one hand, if the court were to review the record and assess a sanction, the court would allegedly be encroaching upon the domain of the administrative agency, and exceeding the judicial function (see Matter of Ahsaf v Nyquist, supra, at p 184). At the other extreme, remission to the agency may be viewed as a "needless delay” (see Matter of Shore Haven Lounge v New York State Liq. Auth., supra, at p 191), a waste of administrative and judicial resources. However, closer analysis indicates that when a court sets aside the penalty imposed by the administrative agency and itself fixes a penalty, there is no theoretical or actual interference with the exercise of administrative discretion.

Except in those rare cases when an administrative agency might attempt to impose a penalty which is not authorized in any instance whatever, when a reviewing court upsets an administrative sanction, it does so on the ground that the penalty is an abuse of discretion (Matter of Pell v Board of Educ., 34 NY2d, supra, at pp 233-235). Implicit in such a finding is the notion that there is a range of permissible discretion, and a maximum penalty within that range which, if imposed by the agency, would be sustained on review. That being so, and given that the agency already exacted a measure of discipline beyond the permissible range, whatever that range might be under the circumstances in a particular case, it would be appropriate for the court to impose the maximum allowable penalty in those matters where the record is adequate for review. No encroachment upon administrative prerogatives would be involved, as the agency has determined in the particular circumstances that a penalty should be imposed and has made it clear that a severe penalty is in order but in fixing it has fashioned one in excess of the maximum. On this view,-a remission to the agency would serve no purpose.

At the same time, if the court establishes the sanction, delay and unnecessary expenditure of vital resources can be avoided. For instance, when the matter is remitted to the administrative body, there is no reason to suppose that there has been any change in its desire to prescribe a severe penalty, and the agency therefore might well fix the next less stringent penalty than the one annulled. Upon review, a court may again annul the penalty, and again remit to the administrative tribunal. This circular process would continue until the agency finally assesses the penalty which the court finds to be the maximum acceptable. The simple and sensible solution, in such instance and where the record is sufficient, is for the court to establish a proper penalty on the first round of review.

As a general practice, then, when an excessive penalty has been imposed — a penalty which constitutes an abuse of discretion — this court should refrain from remitting such a case to the administrative body, unless the record is somehow inadequate, and should instead set the maximum penalty within the permissible range of discretion. Since the Appellate Division appears to have followed that course here, I vote to affirm.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Chief Judge Cooke dissents and votes to affirm in a separate opinion in which Judge Gabrielli concurs.

Judgment modified, with costs to the State Liquor Authority,. and the matter remitted to the Appellate Division, First Department, with directions to remand to the authority for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


text:
    E. M. Substructures, Inc., Appellant, v City of New York (Sewers 149th St., Queens), Respondent.
    Decided March 25, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Martin Ginsberg, Respondent, v Francis Purcell, as County Executive of Nassau County, et al., Appellants.
    Submitted March 3, 1980;
    decided March 25, 1980
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]; subd [b], par 1).


text:
    In the Matter of the City of New York, Respondent, v Realty Apts. Co. et al., Appellants.
    Submitted March 17, 1980;
    decided March 25, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Half-moon, 37 NY2d 198).


text:
    In the Matter of D. D., a Mentally Retarded Person. A. D., as Guardian of the Person of D. D., Appellant.
    Decided March 25, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1).


text:
    The People of the State of New York, Appellant, v Frank S. Garofalo, Respondent.
    Decided March 25, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a certificate granting leave to appeal from an Appellate Division order dismissing an appeal thereto, may be issued only by a Judge of the Court of Appeals (CPL 470.60).


text:
    Cynthia L. Segal et al., Respondents, v Abram Segal, Appellant, et al., Defendant.
    Submitted March 17, 1980;
    decided March 25, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the grounds that, the order appealed from does not finally determine the action within the meaning of the Constitution and that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Nathan Schulman et al., Plaintiffs, and Albert Battaglini, Appellant, v James J. Jarcho et al., Constituting the Joint Plumbing Industry Board, Respondents. Jack Walkes, Plaintiff, v James J. Jarcho et al., Constituting the Joint Plumbing Industry Board, Defendants.
    Argued February 6,1980;
    decided March 27, 1980

      APPEARANCES OF COUNSEL

      Alfred T. De Maria and Herman Taub for appellant.

      Abraham Wilson for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

A review of the record leads us to the conclusion that plaintiff Battaglini has failed to demonstrate that respondents acted arbitrarily and capriciously in denying him pension benefits. Although it is true that one factor tending to indicate arbitrariness is "where an applicant is not given notice of changes in eligibility requirements” (Mitzner v Jarcho, 44 NY2d 39, 46; Burroughs v Board of Trustees, 542 F2d 1128, 1131, cert den 429 US 1096), the record reveals that the 15-consecutive-year employment eligibility requirement embodied in the 1966 amendment to the 1952 trust agreement for the benefit of journeymen plumbers and apprentices was discussed at union meetings and by workers on the job prior to its adoption. Furthermore, there is no evidence that plaintiff was misinformed concerning eligibility requirements for pension benefits before he moved to Ohio.

Nor can it be said that respondents breached their fiduciary duty by failing to volunteer information concerning plaintiff’s eligibility for pension benefits upon learning of his intention to relocate out-of-State. The fiduciary duty, although contemplating full and complete dissemination of information, does not include the responsibility of tailoring an individual’s employment history to ensure eligibility. A worker having access to the eligibility requirements cannot claim arbitrariness or bad faith on the part of the trustees if he, by his own inattentiveness or inaction, fails to avail himself of accessible informational resources.

On the record before us, there is no evidence to suggest that plaintiff undertook steps to inquire specifically as to how his move to Ohio might affect his pension eligibility status and, as mentioned, there is evidence that the 15-consecutive-year eligibility requirement was discussed at union meetings and by workers on the job prior to its implementation.

In addition, it should be noted that this is not a case where eligibility requirements were applied retroactively to defeat a legitimate assertion of entitlement. (See Mitzner v Jarcho, 44 NY2d, at p 46, supra.) Plaintiff failed to meet, among other things, the 15-year union membership requirement contained in the 1952 trust agreement, and did not satisfy the 1963 amendment which required employment for two years with a contributing employer immediately preceding the request for benefits. (Huffe v Jarcho, 49 NY2d 726.) Thus, it is readily apparent that the application of the 15-consecutive-year eligibility requirement contained in the 1966 amendment to the trust agreement would not work to divest plaintiff of otherwise vested rights.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order, insofar as appealed from, affirmed.


author: Meyer, J.

text:
    James Banellis, Appellant, v John E. Yackel, Respondent.
    Argued January 11, 1980;
    decided March 27, 1980

      APPEARANCES OF COUNSEL

      Eugene B. Young for appellant.

      Elijah Huling, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (69 AD2d 1013). We note that all members of this court are agreed that in order to avoid liability under subdivision (a) of section 1210 of the Vehicle and Traffic Law, a motorist need only ensure that the ignition key is "hidden from sight” and need not additionally conceal it so that the key is "not readily discoverable by a prospective car thief without extreme difficulty” (NY Legis Ann, 1967, pp 205, 206). As to the concerns expressed by the dissent, it suffices to note that plaintiffs arguments at trial and before this court were premised upon his acceptance of the fact that defendant had placed the ignition key on the front seat under the cross reference directory and thus out of sight. At no time has he ever advanced the theory now espoused by the dissenters— that the defendant had not hidden the key under the book. Rather than arguing that defendant had not so hidden the key, plaintiff contended and now argues that this was not enough to fulfill the statutory mandate. In light of this concession, there existed no question of fact concerning the credibility of defendant’s testimony, and thus the trial court did not err in granting judgment to defendant at the close of plaintiffs case.

Meyer, J.

(dissenting). I respectfully dissent. The holding of the majority effectively renders subdivision (a) of section 1210 of the Vehicle and Traffic Law meaningless against any vehicle owner who is prepared to testify that though he left the keys in his car they were "hidden from sight”. Seldom if ever will a plaintiff who has been injured by a thief who stole the car in which defendant left the keys be able to present evidence contradicting defendant’s claim that the keys were "hidden from sight”. In my view, therefore, the holding should be that, unless contradictory proof is available, the testimony of a defendant car owner, though uncontradicted, presents a question to be decided by the trier of fact, who should be free, because defendant’s self-interest renders his testimony suspect, to weigh that interest and defendant’s demeanor as he gives his testimony, in deciding whether defendant’s keys were in fact "hidden from sight”.

The statute mandates that one in charge of a motor vehicle not permit it to stand unattended without "removing the key from the vehicle”, but adds the proviso that "the provision for removing the keys from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency”. The dissenters below, interpreting the proviso in light of the memorandum of Assemblyman Harvey M. Lifset, the sponsor of the 1967 amendment that inserted it, suggest that there is a jury question whether the keys were so concealed as to be "not readily discoverable by a prospective car thief without extreme difficulty” (NY Legis Ann, 1967, pp 205, 206), but I doubt that concept can be read into words so unambiguous as "hidden from sight” on the basis of legislative history (1 McKinney’s Cons Laws of NY, Statutes, § 124, p 256).

There are, however, two related lines of precedent for holding that the interest of defendant is sufficient to take the "hidden from sight” issue to the trier of fact. The first is that for which Hull v Littauer (162 NY 569) is the usually cited case, which says that evidence of a party not contradicted by direct evidence, nor by legitimate inferences from the evidence, and not opposed to probability nor in its nature surprising or suspicious, is not to be denied conclusiveness. That rule because it is "founded in reason” recognizes that the evidence must be "possible of contradiction in the circumstances” (162 NY, at p 572; Foreman v Foreman, 251 NY 237, 242; Kavanagh v Wilson, 70 NY 177, 180; Rumsey v Boutwell, 61 Hun 165, 169; cf. Bobbé, Uncontradicted Testimony Of An Interested Witness, 20 Cornell LQ 33, 41-42). The Hull case Was a departure from a long line of cases holding that the witnesses’ interest "was of itself sufficient to take from the court the right to dispose of the case upon their evidence” (Elwood v Western Union Tel. Co., 45 NY 549, 554; see Bobbé, op. cit., p 34, n 7) and has been severely criticized (Bobbé, op. cit., passim; see Note, 10 Syracuse L Rev 112). Where, as here, it is wholly beyond possibility for plaintiff to contradict defendant’s testimony, the thief not being available to testify, it is time for us to state, clearly and directly, what Hull adumbrates; that, at least in such a case, the issue is always for the trier of fact.

The second and related line of precedent, exemplified by Piwowarski v Cornwell (273 NY 226) and Chaika v Vandenberg (252 NY 101), holds that the owner of a motor vehicle is presumptively responsible for the manner in which it was driven and that the credibility of the owner’s denial of permission, even though that testimony is uncontradicted, is exclusively for the jury "when contradiction is impossible and its truthfulness or accuracy is open to reasonable doubt” (Piwo warski, supra, at p 229; see Ferris v Sterling, 214 NY 249, 253; Note, 10 Syracuse L Rev 112).

Those cases have been concerned with section 388 of the Vehicle and Traffic Law, or its predecessors, which impose liability upon an owner for the negligence of a third person in the operation of a vehicle with permission, express or implied, of the owner. One of them, Winnowski v Polito (294 NY 159), involved an owner who double-parked his car on a busy street in Albany, leaving the key in the switch and his 14-year-old son in the car. The son moved into the driver’s seat and was ordered by a policeman to move the car into a space at the curb. Attempting to do so, the son struck plaintiffs who were walking on the sidewalk. Plaintiffs recovered judgment which, however, was reversed by the Appellate Division on the ground that the owner’s testimony that the son had not been given permission to drive the car, indeed, had been forbidden to do so, was uncontradicted. We reversed (p 162), holding that while formulation of a universally applicable definition of "implied permission” was not easy, "it must be recognized as a basic proposition that when one leaves his motor vehicle in a busy street in such a position that a reasonably prudent person should anticipate that in the event of an emergency or other necessity, it must be moved, it [the statute] imposes upon the owner responsibility for the negligent acts of the person left in charge.”

What we consider in the instant case is an even stronger situation than that presented by Winnowski, for in addition to section 388 of the Vehicle and Traffic Law there now exists subdivision (a) of section 1210 of that law requiring removal of keys from the vehicle. Bearing in mind that the purpose of the latter section was to deter theft and protect the public from injury due to operation of motor vehicles by unauthorized persons (Report of Joint Legislative Committee on Motor Vehicle Problems, NY Legis Doc, 1954, No. 36, pp 106-107; see Zegarelli v Colp, 91 Misc 2d 430), I have no difficulty in applying Winnowski’s basic proposition to the instant case and concluding, with the dissenters below, that dismissal of the complaint solely on the ground that there was nothing to refute defendant’s testimony or for the jury to consider was error.

Nor does the record support the majority’s suggestion that plaintiff conceded that the keys were hidden within the meaning of the statute. Plaintiff conceded only that Yackel had so testified but argued that there was an issue of fact. The Trial Judge ruled that: "In this case we have no testimony other than that of Mr. Yackel, and nothing to refute his testimony for the record here or for the Jury to consider”, and the Appellate Division dissenters concluded that "Upon the completion of the proof, it was improper under the circumstances for the trial court to dismiss the complaint”.

For the foregoing reasons, I would reverse the order of the Appellate Division and grant a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Fuchs-berg concurs.

Order affirmed.


text:
    J. Roger Barber, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v Joseph J. Dembroski et al., Appellants.
    Decided March 27, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 43).


text:
    In the Matter of Clarence Battle, Appellant, v John R. Starkey, a Justice of the Supreme Court, Kings County, et al., Respondents.
    Submitted March 3, 1980;
    decided March 27, 1980
   Motion for leave to appeal denied. Appeal taken as of right pursuant to CPLR 5601 (subd [b]) dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    In the Matter of Civil Service Employees Association, Inc., Appellant, v Harold Newman et al., Constituting the Public Employment Relations Board, et al., Respondents. Edward D. Cohen et al., Proposed Intervenors-Appellants.
    Submitted February 25, 1980;
    decided March 27, 1980
   Motion by proposed intervenors for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Motion for leave to appeal [by petitioner] denied, with $20 costs and necessary reproduction disbursements. Motion to dismiss appeal taken as of right by proposed intervenors granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Oppenheimer v Westcott, 47 NY2d 595, 601). Motion for a stay dismissed as academic.


text:
    In the Matter of Eugene F. Clayton, Appellant, v Board of Education of Central School District No. 1 of the Towns of Conklin, Binghamton, Kirkwood and Vestal, et al., Respondents.
    Decided March 27, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1).


text:
    In the Matter of James L. Kane, a Justice of the Supreme Court of the State of New York, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted March 24, 1980;
    decided March 27, 1980
   Motion to strike granted, materials not before the commission when it made its original determination stricken from the record for review, and all references to such materials stricken from the brief. Cross motion to supplement the record for review denied. Application for review of the February 28, 1980 order of the commission denied.


text:
    In the Matter of Alfonso Pelaez, Respondent, v Waterfront Commission of New York Harbor, Appellant.
    Submitted March 17, 1980;
    decided March 27, 1980
   Cross motion for leave to appeal dismissed upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198). Motion to vacate statutory stay dismissed as academic.


text:
    In the Matter of Sanford M. Silverberg et al., Appellants, v John A. Dillon, as Judge of the Erie County Court, et al., Respondents.
    Decided March 27, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    Mohegan Colony Association, Inc., Appellant, v Richard Picone et al., Respondents.
    Submitted March 17, 1980;
    decided March 27, 1980
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    New York Auction Company Division of Standard Prudential Corporation, Appellant, v Hazel Belt et al., Respondents.
    Submitted February 4, 1980;
    decided March 27, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that plaintiff, having acquiesced in the determination of the Appellate Division [53 AD2d 540] by seeking leave to replead, may not seek review of that determination on this appeal pursuant to CPLR 5601 (subd [d]) (Cohen and Karger, Powers of the New York Court of Appeals, § 96).


text:
    In the Matter of Carl R. Scacchetti, Jr.
    Decided March 28, 1980
   OPINION OF THE COURT

On the court’s own motion, it is determined that The Honorable Carl R. Scacchetti, Jr., is suspended with pay, effective immediately, from his office of Judge of the City Court of the City of Rochester, New York, pursuant to article VI (§ 22, subds f, g) of the New York State Constitution and section 44 (subd 8, pars [b], [c]) of the Judiciary Law.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Fairbank Farms, Inc., et al., Appellants, v Thaddeus Kasza et al., as Sales Tax Examiners of the New York Sales Tax Bureau, Respondents.
    Argued February 15, 1980;
    decided April 1, 1980

      APPEARANCES OF COUNSEL

      Ralph J. Gregg and Philip John Szabla for appellants.

      Robert Abrams, Attorney-General (Lawrence J. Logan and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 1001).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Arbitration between Civil Service Employees Association, Inc., Respondent, and County of Niagara, Appellant.
    Argued February 15, 1980;
    decided April 1, 1980

      APPEARANCES OF COUNSEL

      John V. Simon, County Attorney (Miles A. Lance of counsel), for appellant.

      Richard J. Schroff for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Norman A. Stiller at Supreme Court, Niagara County.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Gramatan Home Investors Corp., Successor in Interest to the Gramatan Co., Ltd., Home Investors Trust, Respondent, v Beulah Mack, Appellant.
    Submitted March 17, 1980;
    decided April 1, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).

Motion to substitute Mamie Thompson, executrix of the estate of Beulah Mack, as party appellant herein in the place and stead of Beulah Mack, deceased, dismissed as academic.


text:
    In the Matter of Elfriede Green, Respondent. Marie Potter et al., Appellants.
    Submitted January 14, 1980;
    decided April 1, 1980
   Motion for leave to appeal granted. We note that the death of Louis Potter does not abate the action (CPLR 1015, subd [b]).


text:
    The People of the State of New York, Respondent, v Ira Barkin, Appellant.
    Argued February 15, 1980;
    decided April 3, 1980

      APPEARANCES OF COUNSEL

      Susan C. Thon and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that CPL 220.10 (subd 2) affords him an unconditional right to plead guilty, in a local criminal court, to a charge lodged against him in a misdemeanor complaint must be rejected where, as here, the prosecution has concurrently requested an adjournment pursuant to CPL 170.20 (subd 2) for the purpose of presenting the charge against defendant to a Grand Jury. '

CPL 220.10 (subd 2) states, in pertinent part, that "the defendant may as a matter of right enter a plea of 'guilty’ to the entire indictment.” CPL 340.20 (subd 1) makes the plea provisions of article 220 applicable, "to the extent that they can be so applied” to pleas to informations. Assuming, without deciding, that the provisions of article 220 may be applied to a case where only a misdemeanor complaint has been filed, we find that by enacting CPL 340.20 (subd 1) the Legislature did not intend to override the provisions of CPL 170.20 (subd 2) which unequivocally states that at any time before the entry of a plea of guilty a local criminal court must, upon request of the District Attorney, adjourn all proceedings to allow the District Attorney to present the charge against defendant to a Grand Jury.

In this case, the trial court ruled that "section 220.10 [of the] CPL does not apply to misdemeanor pleas to the exclusion of section 170.20 [of the] CPL.” It is significant that CPL 340.20 (subd 1) which makes the plea provisions of article 220 applicable to accusatory instruments other than indictments, does so only "to the extent that they can be so applied.” In our view, the trial court properly recognized that where, as here, the application of article 220 would nullify the effect of another express provision of law specifically relating to the prosecution of crimes in local criminal courts, the specific provision, such as that embodied in CPL 170.20 (subd 2), must be read as one of the exceptions contemplated by CPL 340.20 (subd 1).

The purpose of CPL 220.10 (subd 2) is to afford an indicted defendant an opportunity, as a matter of right, to plead guilty to all charges in an indictment so that he might avoid the expense and ordeal of a trial. The statute was never intended to allow a defendant who has not yet been indicted to interrupt the accusatory process before it has been completed, to take advantage of a fortuitous circumstance which resulted from an inadequate initial assessment, on the part of law enforcement officials, of the extent of defendant’s wrongdoing. Thus, we hold that, in a case such as this, CPL 220.10 (subd 2) does not require the trial court to accept the defendant’s offer to plead guilty to a charge in a misdemeanor complaint, and does not relieve the court of its duty, pursuant to CPL 170.20 (subd 2) to order an adjournment to allow the District Attorney to present evidence against the defendant to a Grand Jury. The mere circumstance that the defendant’s offer to plead guilty preceded the prosecution’s request for an adjournment provides an insufficient predicate to reach a contrary result.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of Herbert B. Evans, as Chief Administrative Judge of the Unified Court System of the State of New York, Respondent, v Harold R. Newman et al., Individually and as Members of the Public Employment Relations Board of the State of New York, et al., Appellants. New York State Court Officers Association et al., Intervenors-Appellants.
    Argued March 19, 1980;
    decided April 3, 1980

      APPEARANCES OF COUNSEL

      Anthony Cagliostro and Martin L. Barr for appellants.

      Albert H. Blumenthal, Stephanie Hill and Geoffrey McC. Johnson for New York State Court Officers Association and others, intervenors-appellants.

      Adam Blumenstein for James R Hannon, intervenor-appellant.

      Michael Colodner, Stephen G. Crane, Norma Meacham Crotty and Patricia P. Satterñeld for respondent.

      Beverly Gross and Linda M. Nelson for District Council 37, AFSCME, amicus curiae.

   OPINION OF THE COURT

Order affirmed with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (71 AD2d 240).

Concur: Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer. Taking no part: Chief Judge Cooke,


author: Jasen, J.

text:
    In the Matter of the Arbitration between Andrew Levine, Appellant, and Zurich American Insurance Company, Respondent.
    Submitted February 14, 1980;
    decided April 3, 1980

      APPEARANCES OF COUNSEL

      Bernard Meyerson for appellant.

      Thomas J. Walsh and William F. Larkin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the arbitration award reinstated.

The arbitrator found that the basic economic loss was not incorporated in the jury’s verdict. While the Judge in the third-party action submitted to the jury conventional items of special damage, including those covered by the no-fault law, it does not necessarily follow that in reaching its verdict, which was a general one, the jury, in assessing damages, in fact decided to allow these items. Since the plaintiff sought a sum greatly in excess of $180,000 for the objective, permanent injuries sustained and for his prospective vocational handicap, it is not inconceivable that the jury, in arriving at its compromise figure may have decided not to include the no-fault items in its own computation of damages. Moreover, it was agreed between the parties, who never moved to stay the arbitration which took place only after the third-party action had been concluded, that the arbitrator was to determine "whether or not there was a disposition of the[se] benefits] via the jury verdict” (cf. Matter of Garcia v Federal Ins. Co., 46 NY2d 1040, 1042). Under these circumstances, it cannot be said that the arbitrator’s finding did not have a "basis in reason” (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 510; see Caso v Coffey, 41 NY2d 153, 158).

Jasen, J.

(dissenting). I dissent and would affirm the order of the unanimous Appellate Division.

The majority, in reaching a disposition of reversal, has eroded the distinction between the scope of judicial review in matters concerning consensual arbitration as compared to compulsory arbitration. An award rendered in the former may be vacated only if completely irrational (CPLR 7511, subd [b]; see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582), whereas a determination made in compulsory arbitration will be vacated upon a demonstration that the arbitrator’s finding is not "supported by evidence or other basis in reason.” (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 508; see Caso v Coffey, 41 NY2d 153, 158.) This is so because considerations of due process require that a determination made in compulsory arbitration be subjected to closer judicial scrutiny. (Mount. St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d, at p 508, supra.)

In my opinion, the finding by the arbitrator that the jury verdict did not include recovery for "basic economic loss” lacks a rational basis and, inasmuch as submission of this dispute to arbitration was not voluntary but compulsory (Insurance Law, § 675, subd 2), the arbitrator’s award granting $50,000 as medical expenses to claimant Levine should be vacated.

As correctly found by the court below, the evidence before the arbitrator indicated "unequivocally that the verdict in favor of [claimant] necessarily included recovery for 'basic economic loss’ ”. The complaint sought to recover damages for medical expenses; the bill of particulars itemized hospital care and related services; the evidence adduced at trial and claimant’s summation to the jury itemized medical expenses; and the Trial Judge charged the jury that if it found for claimant he was "entitled to recover a sum of money which will justly and fairly compensate him for his injuries and for his conscious pain and suffering, for his medical and hospital and health [aid] and ambulance, and other incidental expenses, for his permanent injuries and for his necessary future expenses to the time that you find that he may live.” Further, there is no evidence that the verdict was adjusted by the jury to reflect an exclusion of basic economic loss.

Under such circumstances, I find the majority’s conclusion that the verdict did not necessarily include those damages covered by the no-fault law puzzling at best, especially when one considers the large sum of medical expenses both incurred and claimed by claimant. A contrary conclusion is mandated, and inasmuch as the jury verdict must have included compensation which is reserved for no-fault coverage (see Insurance Law, § 673, subd 1), the arbitrator’s award should be vacated.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur in memorandum; Judge Jasen dissents and votes to affirm in an opinion in which Judges Gabrielli and Meyer concur.

Order reversed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Susan A. Davis, Appellant.
    Argued February 15, 1980;
    decided April 3, 1980

      APPEARANCES OF COUNSEL

      Clark J. Zimmermann for appellant.

      Ronald L. Fancher, District Attorney (Karen F. McKee of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant, an employee of the Genesee County Automobile Bureau, having been convicted on seven charges of falsifying business records (Penal Law, § 175.10) and two charges of grand larceny (Penal Law, § 155.30, subd 1), appeals from the Appellate Division’s affirmance. The errors claimed are (1) that she was required by subpoena to appear before the Grand Jury although the prosecutor had been advised that she would refuse to waive immunity and claim privilege, (2) that the records involved were not "business records” within the meaning of the Penal Law, (3) that the testimony of other employees of the office that they did not take funds or alter records was improperly admitted, and (4) that the evidence was insufficient as a matter of law.

It is settled law that no constitutional error is involved in requiring one who is a Grand Jury target to appear before that body and claim privilege (United States v Wong, 431 US 174, 179, n 8; United States v Washington, 431 US 181; see Matter of Cunningham v Nadjari, 39 NY2d 314; Matter of Boikess v Aspland, 24 NY2d 136; People ex rel. Hummel v Davy, 105 App Div 598, 603, affd without reaching the point 184 NY 30). While we agree that the better practice is not to do so (see American Bar Association Standard Relating to the Prosecution Function, Standard 3-3.6[e]), the prosecutor’s having done so furnishes no basis for dismissal of the indictment (see People v Calbud, Inc., 49 NY2d 389).

Subdivision 2 of section 175.00 of the Penal Law defines "business records” as "any writing or article kept or maintained by an entreprise [sic] for the purpose of evidencing or reflecting its condition or activity”. The Genesee Bureau was required to prepare the forms which defendant has been found guilty of falsifying in order to account to the New York State Department of Motor Vehicles for missing or mutilated registration plates or validation stickers and to account for transactions taking place at the Genesee Bureau. At the time defendant prepared the documents they were in the Genesee office. The fact that they were thereafter transferred to the department does not make them any the less writings maintained for the purpose of reflecting the activity of the Genesee Bureau. It is, therefore, unnecessary to consider whether the relationship between the Genesee Bureau and the department makes the documents also business records of the department.

Defendant’s argument that the testimony of other employees of the office was self-serving and irrelevant misconceives the meaning of self-serving in the law of evidence and is refuted as to relevance by defendant’s argument that the evidence to convict her was insufficient partly because there were five other employees of the Genesee Bureau some of whom were involved in some of the transactions recorded on the falsified documents. It was, of course, open to defendant to argue to the jury that the other employees were interested witnesses since they were not likely to admit falsification and larceny if they had in fact engaged in it, but that goes to weight not admissibility. The case against defendant was essentially circumstantial, requiring the exclusion by the People of every reasonable hypothesis of innocence (People v Borrero, 26 NY2d 430, 434-435). It would have been better for the questions to be directed to the particular transactions, rather than to be put, as they were, as general inquiries, but the evidence was relevant and admissible.

With respect to sufficiency of the evidence, it need but be noted that defendant was shown to have been present on each of the days involved, that she regularly arrived at work early, that she took the stand and admitted preparing all of the falsified documents, that some of the validation stickers she certified as missing or mutilated had in fact been issued, that the number of the supposedly missing stickers appeared in her handwriting on some of the vehicle owners’ checks, and that the office cash showed neither shortage nor overage on the days in question. Bearing in mind that in reviewing the factual sufficiency of the evidence to sustain a jury verdict of conviction the evidence is to be read in the light most favorable to the People (People v Benzinger, 36 NY2d 29), we cannot say that the evidence was insufficient to permit the jury to find defendant’s guilt beyond a reasonable doubt.

For the above reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed.


text:
    In the Matter of Nationwide Mutual Insurance Company, Respondent, v E. E. Sheldon, as Assignee of Miguel Delgado, Appellant.
    Argued March 17, 1980;
    decided April 3, 1980
   Appeal dismissed, without costs, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). Oral motion for leave to appeal denied.


text:
    Eugene W. Bechtle, Jr., et al., Appellants, v Board of Supervisors of the County of Nassau et al., Respondents.
    Decided April 3, 1980
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Marilyn M. Clurman, Respondent, v Richard M. Clurman, Appellant.
    Submitted March 17, 1980;
    decided April 3, 1980
   Motion to dismiss the appeal herein, which is limited by defendant’s notice of appeal to be from only so much of the Appellate Division order as modified Special Term’s order by denying defendant’s cross motion to compel arbitration, and thus finally determining a separate special proceeding, denied. (See Merrill Lynch, Pierce, Fenner & Smith v Griesenbeck, 21 NY2d 688, 690.)


text:
    Andrew A. Marino, Appellant, v Francis X. Wallace et al., Respondents.
    Submitted March 3, 1980;
    decided April 3, 1980
   Motion, insofar as it seeks leave to appeal from so much of an order of the Appellate Division as affirmed an order of Supreme Court granting in part and denying, etc., in part a motion to dismiss certain causes of action against defendants Bowin M. Lindgren and the Power Authority of the State of New York, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 14; Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754). Motion for leave to appeal otherwise denied, with $20 costs and necessary reproduction disbursements.


text:
    In the Matter of John A. Szabo, Appellant.
    Decided April 3, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal does not lie (CPLR 5601).


text:
    National Bank of North America, Respondent, v Local 553 Pension Fund of the International Brotherhood of Teamsters and Chauffeurs, Appellant.
    Decided April 3, 1980
   Appeal transferred by the court 'of Appeals sua sponte, without costs, to the Appellate Term, Second and Eleventh Judicial Districts, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    The People of the State of New York ex rel. Vincent R. Henriquez, Appellant, v Everett W. Jones, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Decided April 3, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies (CPLR 5601).


text:
    Avi Zubli et al., Appellants, v Community Mainstreaming Associates, Inc., et al., Respondents, et al., Defendant.
    Submitted March 17, 1980;
    decided April 3, 1980
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [b], par 1). Motion for a stay denied. Motion to waive strict compliance with certain requirements concerning the record on appeal granted to the extent that the appeal may be prosecuted upon the original record, the usual number of copies of appellants’ additional papers and brief to be filed.


text:
    In the Matter of James MacLean, Appellant, v New York State Tax Commission, Respondent.
    Argued March 18, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Victor M. Meyers for appellant.

      Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 951).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    County of Niagara, Appellant, v Arthur Levitt, as State Comptroller, et al., Respondents.
    Argued March 20, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      John V. Simon, County Attorney (Miles A. Lance of counsel), for appellant.

      Robert Abrams, Attorney-General (William J. Kogan and Shirley Adelson Siegel of counsel), for Arthur Levitt, as State Comptroller, respondent.

      William E. Straub for Niagara Frontier Transportation Authority and another, respondents.
   OPINION OF THE COURT

Order modified, with costs to respondents, by declaring section 18-b (subd 5, par c) of the Transportation Law to be constitutional (Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, affirmed for reasons stated in the opinion by Mr. Justice Joseph P. Kuszynski at Supreme Court, Erie County (97 Misc 2d 421).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Stainless, Inc., et al., Appellants, v Employers’ Fire Insurance Company, Respondent.
    Argued March 19, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Marshall M. Kolba and Ernest E. Rosenberg for appellants.

      Richard Huber and Charles F. McGuire for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Arnold L. Fein at the Appellate Division (69 AD2d 27).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v James W. Turner, Appellant.
    Argued March 18, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Deborah S. Gerber of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Stephen M. Brent of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The principal contention now advanced as requiring a. re versal of defendant’s conviction is that it was error to have denied defendant’s motions to suppress the piece of bloodstained glass seized by the police from his station wagon— asserted to be the one direct piece of evidence linking him to the scene of the crime. It was not error to have denied that portion of the pretrial omnibus motion which sought suppression inasmuch as that application was explicitly predicated on the theory that the seizure had been made pursuant to an invalid search warrant. In fact the seizure had been made some six hours prior to the execution of the challenged warrant and had been in no way related to that warrant or dependent on it.

Nor can it be concluded that it was error to have denied as untimely the subsequent midtrial motion to suppress which was focused on the asserted illegality of the prior warrantless search of the station wagon. The trial court relied on the fact that attached to the pretrial motion papers had been the affidavit of the police officer on which the search warrant had been based. The affidavit revealed that the broken glass had been found by the police on the earlier search of defendant’s station wagon. Hence, the court concluded that "at the time of the said omnibus motion and prior to trial defendant was aware that a search had been made of his motor vehicle” and that accordingly he could not claim "previous unawareness” of the facts to justify granting the deferred midtrial motion.

We have examined defendant’s other contentions and conclude that the errors asserted either were not preserved for our review or are without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Michael R. Palumbo, Respondent.
    Argued March 19, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Norman Barclay and Robert M. Pitler of counsel), for appellant.

      Allen Green for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for determination of the facts with respect to the suppression of defendant’s statements.

The Appellate Division held that the interview of defendant conducted in the offices of the Department of Investigation on June 3, 1976 was a custodial interrogation as a matter of law. In consequence, the preinterrogation constitutional warnings not having been given, defendant was entitled to suppression of the statements that he had then made. We cannot agree that this interrogation was custodial as a matter of law, i.e., that under no view of the evidence in the record could it be found to be noncustodial. Accordingly, we hold that the determination of the Appellate Division in this regard was error. The case must, therefore, be remitted to the Appellate Division for determination of the facts under CPL 470.40 (subd 2, par [b]).

The other error on which the Appellate Division would have reversed (and granted a new trial) — namely, misuse of the taped conversations of defendant — was not preserved for appellate review, no timely protest on this theory having been registered. Accordingly, that issue is beyond the scope of our review (People v Johnson, 47 NY2d 124).

We have examined defendant’s other contentions and conclude that the errors asserted either were not preserved for our review or are without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    Rochester Gas and Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Argued March 20, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Richard N. George for appellant.

      Howard J. Read and Peter H. Schiff for respondent.

      Bernard Hulkower, Thomas J. Farrelly and Sara Schoen

      wetter for Consolidated Edison Company of New York, Inc., amicus curiae.

      David Goldfarb, Michael D. Hampden, John Kirklin and Carol Kellermann for Legal Aid Society of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Clarence Herlihy at the Appellate Division (66 AD2d 509).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.


text:
    Henry H. Grobe, Appellant, v Three Village Herald et al., Respondents.
    Argued March 17, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Stanley Pierce for appellant.

      Victor A. Kovner and Harriette K. Dorsen for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (69 AD2d 175).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Clarence R. Rydberg et al., Appellants, v Jennings Beach Association, Inc., Respondent.
    Argued March 18, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Lawrence M. Rosenstock and Ira E. Garr for appellants.

      Jeffrey G. Stark for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 816).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Taking no part: Judge Meyer.


text:
    In the Matter of the Arbitration between the Board of Higher Education of the City of New York, Appellant, and Randolph Brown, Respondent.
    Argued March 21, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (David B. Rigney, Laura Blank and Paula J. Levitt), for appellant.

      D. Nicholas Russo for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

There is no showing that the arbitrator went beyond the question submitted for his determination. Having participated in the arbitration proceeding, the board may not subsequently move to vacate the award on the ground that the matter arbitrated was not arbitrable (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583; see, also, Matter of Yonkers Federation of Teachers v Board of Educ., 46 NY2d 725).

There is no merit to appellant’s argument that public policy has somehow been contravened by the arbitrator’s award (Matter of Port Washington Union Free School Dist. v Teachers Assn., 45 NY2d 746).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    State Division of Human Rights on the Complaint of Frank Wilson, Appellant, v County of Monroe et al., Respondents.
    Argued March 18, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Hanna S. Cohn for appellant.

      John D. Doyle, County Attorney (Joseph C. Pilato of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

To support his claim that the State Division of Human Rights has jurisdiction over his complaint of discriminatory exclusion from a prison work release program, appellant seeks to place the work release program within the compass of the term "employment agency”, defined in subdivision 2 of section 292 of the Executive Law as "any person undertaking to procure employees or opportunities to work”. However, the Legislature expressly vested the State Commission of Corrections with ultimate authority over prisoner grievances with respect to work release programs, to that end specifically providing, in the self-contained, self-standing statutory scheme which authorized the program, that "[t]he decision of the commission shall be final and not be subject to judicial review” (Correction Law, § 871, subd [a]). Therefore, to accord the Division of Human Rights jurisdiction over inmate complaints of discrimination in such programs is not within the reasonable intendment of the Legislature (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 391, pp 555-556; § 398, p 579). And, by no stretch of the imagination can it be said to be consonant with the sound rule of construction which favors the reconciliation even of statutes which arguably could be said to conflict with one another (cf. Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; Matter of Terry, 218 NY 218, 222).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Bankers Security Life Insurance Society, Plaintiff, v Margareta Shakerdge, Appellant, and Abraham Shakerdge, Respondent.
    Argued March 20, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Lester Lichter for appellant.

      Jay F. Gordon, Perry S. Galler and Ray Beckerman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In general, though as an equitable doctrine its application to particular circumstances is susceptible of some flexibility, to establish a constructive trust there must be provided: (1) a confidential or fiduciary relation, (2) a promise, express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment (Simonds v Simonds, 45 NY2d 233, 241-242; Sharp v Kosmalski, 40 NY2d 119, 121). On the record here, the only showing that any promise had been made would have to be culled from several remarks made by the decedent’s brother Abraham. These, in the form of statements to Joseph and his wife, in the main after the former’s death, went no further than to assert that he would "do the right thing” and "take care of’ decedent’s wife and child. These expressions, though perhaps evidencing some moral obligation, cannot be taken to mean that Abraham was bound to fulfill the expressed intention by applying to that purpose the proceeds of the two insurance policies on which, without interruption, he had been the beneficiary from the time they were written more than a decade earlier. Moreover, the statements contained no reference to the policies. Inasmuch as the constructive trust doctrine serves as a "fraud-rectifying” remedy rather than an "intent-enforcing” one, without more, the circumstances offered by the decedent’s widow were insufficient to establish the promissory element which is essential to the proof of such a trust (Matter of Wells, 36 AD2d 471, 474-475 [Gabrielli, J.], affd 29 NY2d 931).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Ralph L. De Marco, Appellant, v Charles G. McLaughlin, as Chief of Police of the City of Rye, et al., Respondents.
    Argued March 20, 1980;
    decided April 22, 1980
    APPEARANCES OF COUNSEL

      Martin A. Schwartz and Eileen R. Kaufman for appellant.

      Lawrence T. D’Aloise, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

.The order of the Appellate Division should be affirmed, with costs. The issue presented in petitioner’s article 78 proceeding was one of law on which the dissenting Judge disagreed. The appeal is, therefore, properly before us (CPLR 5601, subd [a], par [i]).

On the merits, there was evidence to support the determination of the courts below that petitioner’s resignation was voluntary and that the refusal of the city manager to reinstate him was not arbitrary or capricious.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Selig Cohn, Deceased, by Frances Cohn, as Intended Administratrix and Individually, Respondent, v Royal Globe Insurance Company, Respondent, and Hartford Insurance Company, Appellant.
    Argued March 17, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Lester E. Fetell and Seth E. Coen for appellant.

      Dennis P. Hannafey, Ernest Miller and Myles Elber for Royal Globe Insurance Company, respondent.

      Pamela Anagnos Liapakis and Nicholas Papain for Selig Cohn, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Section 313 (subd 1, par [a]) of the Vehicle and Traffic Law provides expressly that insurance cancellation notices "shall include in type of which the face shall not be smaller than twelve point a statement that proof of financial security is required to be maintained”. In light of this statutory mandate, we cannot say that the arbitrator’s determination — that this statute does not contemplate substantial compliance — is so irrational as to require vacatur of the award. (Cf. Matter of Garcia v Federal Ins. Co., 46 NY2d 1040.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Consolidated Edison Company of New York, Inc., Respondent, v State Human Rights Appeal Board, Respondent, and State Division of Human Rights, on the Complaint of Sheila Muratore, Appellant.
    Argued March 18, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Ann Thacher Anderson for appellant.

      Francis B. Conrad and David J. Reilly for Consolidated Edison Company of New York, Inc., respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 546).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Mario Gabos, Appellant, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Respondents.
    Argued March 24, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Richard A. Dienst for appellant.

      Allen G. Schwartz, Corporation Counsel (Lillian S. Gewirtz, L. Kevin Sheridan and Carolyn E. Demarest of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 785).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Donald V. Wade, Appellant, v Department of Mental Hygiene of the State of New York et al., Respondents.
    Argued March 20, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Christopher A. Hansen, Robert M. Levy and Leo P. Davis for appellant.

      Robert Abrams, Attorney-General (Thomas P. Dorsey, Shirley Adelson Siegel and Robert L. Schonfeld of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 628; see, also, Matter of Dorothy D., 49 NY2d 212).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Continental Time Corporation, Appellant, v National Broadcasting Company, Inc., Respondent, et al., Defendant.
    Argued March 19, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Norman Bard and Sandra Krevitsky for appellant.

      Thomas J. Kavaler and Thomas F. Curnin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 502).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Central General Hospital, as Assignee of Karla Brandstetter, Respondent, v Hanover Insurance Company, Appellant.
    Submitted March 17, 1980;
    decided April 22, 1980

      APPEARANCES OF COUNSEL

      Donald F. Ayers and William P. Komar for appellant.

      Joseph Henig for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The subject arbitration was instituted to resolve Central General Hospital’s claim that appellant Hanover Insurance Company had failed to pay a bill due under the provisions of the automobile no-fault law (Insurance Law, art 18). Hanover asserted that it had in fact remitted the sum, but was unable to produce a canceled check despite being granted what turned out to be a two-month extension after the hearing. Accordingly, the arbitrator found in favor of the hospital and awarded, in addition, an attorney’s fee (Insurance Law, § 675, subd 1). A month later, the check was found, and the insurer brought this proceeding, in the Supreme Court to vacate the award on the ground of newly discovered evidence. Special Term granted the application, but the Appellate Division reversed and reinstated the award, which, by consent of the hospital, had been reduced to the attorney’s fee alone.

The discovery of new evidence is not among the grounds for vacatur of an arbitration award under CPLR 7511 (subd [b]) (see Kwasnik v Willo Packing Co., 61 AD2d 791; Matter of Ganser [New York Tel. Co. of Amer.], 41 AD2d 914, affid 34 NY2d 717; Matter of Mole [Queens Ins. Co.], 14 AD2d 1)..

Since the arbitration provided for by the no-fault law in these circumstances is compulsory (Insurance Law, § 675, subd 2), judicial intervention is limited (e.g., Matter of Levine v Zurich Amer. Ins. Co., 49 NY2d 907, 908-909; cf. Mount St. Mary’s Hosp. v Catherwood, 26 NY2d 493, 510; Caso v Coffey, 41 NY2d 153, 158). We can perceive no irrationality in an arbitrator’s demand that payment be proved by exhibiting a canceled check or in his decision in favor of the hospital when such proof was not presented. Nor is there any question as to the bona tides of the award or any alleged violation of constitutional rights or strong public policy (see Matter of Furstenberg v Aetna Cas. & Sur. Co., 49 NY2d 757, 759).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Florence Gross, Respondent, v Board of Education of the Elmsford Union Free School District, Appellant, and Alice Moffat et al., Respondents.
    Submitted March 24, 1980;
    decided April 22, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of Frank F. Cangro, Appellant, v Alphonse E. D’Ambrose et al., Respondents.
    Submitted March 31, 1980;
    decided April 22, 1980
   Motion for leave to appeal denied (Lima v Chrysler Corp., 26 NY2d 981). On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Estate of Meyer Kaufman, Deceased. Hyman Kaufman, as Executor of Meyer Kaufman, Deceased, et al., Respondents; Jacob Kaufman, Appellant.
    Submitted March 24, 1980;
    decided April 22, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 36, pp 144-147).


text:
    In the Matter of Robert Michaels, Appellant, v Thomas C. Hartzell et al., Respondents. Thomas C. Hartzell et al., Respondents, v Robert Michaels, Appellant.
    Submitted March 24, 1980;
    decided April 22, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    The People of the State of New York, Appellant, v Harold Benjamin, Also Known as Harold Miley, Respondent.
    Submitted March 3, 1980;
    decided April 22, 1980
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York ex rel. Peter Pomaro, Appellant, v Richard D. Hongisto, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted March 31, 1980;
    decided April 22, 1980
   On the court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938). Motion for assignment of counsel dismissed as academic.


text:
    In the Matter of Samuel Marks et al., and All Others Similarly Situated, Respondents, v Frank Pelcher et al., Constituting the Board of Assessors of the County of Nassau, Appellants. In the Matter of Clarence I. Neulander, and All Others Similarly Situated, Respondent, v Frank Pelcher et al., Constituting the Board of Assessors of the County of Nassau, Appellants. In the Matter of Vincent Rothman et al., and All Others Similarly Situated, Respondents, v Frank Pelcher et al., Constituting the Board of Assessors of the County of Nassau, Appellants.
    Argued March 25, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Robert T. Bloom of counsel), for appellants.

      M. Allan Hyman and Allan Hyman for respondents.

      Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (58 AD2d 812).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Kitano Arms Corporation, Appellant, v State Liquor Authority et al., Respondents.
    Argued March 26, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Monroe I. Katcher, II, for appellant.

      Stanley Stein and Warren B. Pesetsky for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 841).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    David Z. Rosensweig, Respondent-Appellant, v Paul Brener, as Administrator of the Estate of Samuel Brener, Deceased, Respondent, and Robert Edelstein et al., Appellants-Respondents.
    Argued March 27, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      David Z. Rosensweig, respondent-appellant pro se.

      Leonard Nathanson for appellants-respondents.

      Robert B. Davidson and David A. Robinson for respondents.
   OPINION OF THE COURT

Order affirmed, with costs to respondent Brener against appellants, for reasons stated in the memorandum at the Appellate Division (70 AD2d 845).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Mary E. Walsh, Plaintiff, v Mae D. Kelly, Defendant. Mary E. Walsh, Respondent, v John R. Voisey et al., as Executors of Mae D. Kelly, Deceased, Appellants.
    Submitted March 21, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Philip D. Jackson for appellants.

      Salvatore A. Lecci for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In the contract of sale, the seller agreed that the sale was conditional on the purchaser’s obtaining an FHA mortgage loan covering the premises. In the absence of any express provision to the contrary, the seller must be deemed to have agreed, as one aspect of her implied obligation not to interfere with or to prevent performance by the purchaser of the condition specified in the contract, to perform the obligations imposed by the lending bank with respect to payment of "points” to the extent that the applicable FHA regulation prohibited the payment of "points” by the purchaser.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Cohoes Housing Authority, Appellant, v Ippolito-Lutz, Inc., Respondent.
    Argued March 26, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Thomas Dussault for appellant.

      Jerrold Morgulas for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 666).

Concur: Chief Judge Cooke and Judges Jasen, Gabkielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Avnet, Inc., Respondent, v American International Life Assurance Company of New York, Appellant.
    Argued March 26, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      John B. Foley for appellant.

      Steven L. Cohen and Sheldon Rudoff for respondent.

      T. Richard Kennedy, Edward Thompson, George T. Vogel and Joseph C. Petillo for Life Insurance Council of New York, Incorporated, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for entry of summary judgment in favor of defendant declaring the rights of the parties in accordance with this memorandum and otherwise dismissing the complaint and for further proceedings on defendant’s counterclaim.

Plaintiff insured asserts that defendant insurer was obligated to pay the increased disability benefits imposed on the insured for pregnancy-related disability of its employees in consequence of our decision in Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd. (41 NY2d 84). This claim is based on a provision of the policy of insurance issued by defendant which provides in pertinent part that the insurer is obligated "To pay the disability, benefits which any Insured Employee * * * is entitled to receive under Section 204 of Article 9 of the Workmen’s Compensation Law of the State of New York or any laws amendatory thereof or supplementary thereto which are or may become effective during the Policy period”. The obligation of the insurer under this provision did not extend to the payment of benefits mandated by the Human Rights Law in excess of those required under the Disability Benefits Law.

The obligation of private employers declared in Brooklyn Union Gas (p 88) was neither amendatory of nor supplementary to the Disability Benefits Law; it was independent of that law. This court was at pains to reject any theory of implied repeal or amendment of the Disability Benefits Law and to recognize "that the HRL expresses a different command.” The concept of "skew lines” was employed to classify the two laws as passing each other without intersection, setting "two concurrent independent minimum standards”, thus laws imposing wholly distinct and different obligations on employers.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and case remitted to Supreme Court, New York County, for entry of judgment in favor of defendant in accordance with the memorandum herein.


text:
    Thomas Collins, an Infant, by His Parent and Natural Guardian, Joan Collins, et al., Appellants, v New York Hospital et al., Defendants, and David Gerber et al., Respondents.
    Argued March 19, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Norman E. Frowley for appellants.

      Norman Bard and Sandra Krevitsky for David Gerber, respondent.

      Steven C. Mandell and Theodore Rosenzweig for Lawrence Ravich and others, respondents.

      Arnold Davis for Massapequa Hospital, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified insofar as it relates to the defendant Massapequa Hospital and the case remitted to that court for consideration of issues not reached with respect to that defendant. There was sufficient evidence to support the jury’s verdict against the defendant Massapequa Hospital.

Concededly the doctors directed the hospital to perform a cystourethrographic test and the hospital neglected to do so. The hospital’s responsibility did not involve medical judgment; it was simply required to carry out the physicians’ order. Failure to do so can, of course, be found to be malpractice (Toth v Community Hosp. at Glen Cove, 22 NY2d 255).

The fact that the doctors subsequently decided to discharge the child several days after the test had been ordered, knowing that it had not been performed, does not necessarily indicate a retroactive "sub silentio revoking of the order for the test” as the Appellate Division found. On the contrary there was evidence that this decision was not based on a conclusion that the test had proven to be unnecessary but rather that it might be dangerous to make the test at this late stage because the catheters needed to perform the test had been removed and if replaced might lead to reinfection. Indeed, one of the attending physicians testified to this effect.

Finally the jury could have found that the failure of the hospital to perform the test when directed contributed to the injury although the delay involved a relatively brief period of time. Specifically the hospital records indicate a substantial loss of kidney function between the time the child was treated at Massapequa Hospital (where a loss of 50 to 60% was reported) and the time he was admitted at New York Hospital (where a loss of more than 80% was reported). There was also evidence that the test would reveal the condition, as it did at New York Hospital, and that the condition was not surgically correctable if the patient possessed less than 25% of kidney function. Thus there was evidence to support a finding that the delay in performing the test, occasioned by the negligence of the Massapequa Hospital, not only contributed to the loss of kidney function but also deprived the child of an opportunity to have the condition surgically corrected.

Whether or not it was error for the trial court to reduce the infant plaintiff’s recovery by $40,000 to reflect the settlement made during the trial between the infant plaintiff and the defendant Qualliotine should, if the issue is reached, be decided by the Appellate Division.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and. Meyer concur; Judge Fuchsberg taking no part.

Order modified, with costs to plaintiffs only against defendant Massapequa Hospital only, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Arthur D. Emil, Appellant, v Thomas E. Dewey, Jr., et al., Respondents.
    Argued March 24, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Floyd Abrams and Peter N. Wang for appellant.

      Leon Brickman for 79 East 79th Street Corporation, respondent.

      Paul B. Marrow for Thomas E. Dewey, Jr., and others, respondents.

      Ann Thacher Anderson and Alan J. Saks for State Division of Human Rights, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The complaint should be dismissed pursuant to subdivision 9 of section 297 of the Executive Law. The record indicates, and it is conceded, that prior to commencing this action the plaintiff had filed a complaint with the State Division of Human Rights. Although the plaintiff withdrew that complaint prior to any determination by the division, there is no showing this was done for administrative convenience. Under these circumstances the statute (Executive Law, § 297, subd 9) precludes the plaintiff from commencing an action in court based on the same incident.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    In the Matter of Mascony Transport and Ferry Service, Inc., Appellant, v Jonathan Richmond et al., Constituting the Planning Board of the Village of Greenport, Respondents, and East End Supply Co., Inc., et al., Intervenors-Respondents.
    Argued March 25, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Richard T. Haefeli and John R. McNulty for appellant.

      Robert C. Crimmins and Frank A. Isler for respondents.

      William W. Esseks for East End Supply Co., Inc., intervenor-respondent.

      Robert W. Tasker for Shelter Island and Greenport Ferry Company, Inc., intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 896).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    David R. Monacelli, by His Guardian ad Litem, Eva J. Adams, et al., Appellants, v Albert V. Armstrong et al., Defendants, and Chili Fire Department et al., Respondents. (Action No. 1.) Richard E. Wright et al., Appellants, v Albert V. Armstrong et al., Defendants, and Chili Fire Department, Inc., Respondent. (Action No. 2.)
    Argued March 27, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Leon Katzen for appellants in Action No. 1.

      John R. Schwartz for appellants in Action No. 2.

      Henry R. Ippolito for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Reid S. Moule insofar as that opinion relates to the defendants Van Gelder and the Chili Fire Department.

As there was no showing of negligence, proximate cause, or foreseeability, summary judgment was properly granted to these defendants.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Anthony Anastasio, Respondent, v Waterfront Commission of New York Harbor et al., Appellants.
    Argued March 24, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      David Greenfield, Gerald P. Lally and Ellen J. Bronzo for appellants.

      Leonard S. Picariello for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs.

The Waterfront Commission’s licensing authority is defined not only by express statutory standards which articulate its power to withhold registration of waterfront workers for good cause (see L 1953, ch 882, § 1, art VIII, par 3; art IX, par 4), but by what may be said to have been implicitly delegated from the fair import of its statutorily described purposes (see Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299, 307). So, in light of the broad discretion accorded the commission as "an expert administrative body to deal with the especially difficult problems of crime and corruption on the waterfront, to promote the interests of port workers and to further port commerce” (Matter of CC Lbr. Co. v Waterfront Comm. of N. Y. Harbor, 31 NY2d 350, 359), it cannot be said that the denial of petitioner’s application for restoration was either illegal or arbitrary and capricious. The petitioner’s concession that he sought the restoration, not to join the work force or work himself but solely to attain eligibility for a union disability pension, bore an obvious relationship to the commission’s ability to balance the supply and demand for waterfront labor (see L 1966, ch 127, § 3). Moreover, "ability to work” may well be a criterion relevant to the commission’s duty to register "all qualiñed longshoremen” (L 1953, ch 882, § 1, art VIII, par 1; italics supplied). In sum, the petitioner has not shown that the commission’s refusal to accept his application for reregistration was " 'based solely upon grounds which as a matter of law may not control [its] discretion’ ” in the matter at hand (Matter of Barton Trucking Corp., supra, p 308, citing Matter of Larkin Co. v Schwab, 242 NY 330, 335; see Matter of Pell v Board of Educ., 34 NY2d 222, 231).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and the determination of the commission reinstated in a memorandum.


text:
    Ragto, Inc., Appellant, v Joseph Schneiderman et al., Respondents, et al., Defendants.
    Argued March 25, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Marvin Zuckerberg and Ralph F. Clements, Jr., for appellant.

      Joyce K. Barlow, Robert A. Katz and Morton Povman for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 815; see, also, Block v Landegger, 49 NY2d 741).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Agostino Fioretti, Also Known as Augie, Appellant.
    Submitted March 21, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      John R. Lewis for appellant.

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered as to appellant for the reasons stated in Part B of the opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division (68 AD2d, at pp 574-578). The trial court having made no meaningful inquiry on the record to ascertain whether appellant was cognizant of the potential risks inherent in his representation by the same counsel as his codefendant, the significant possibility of a conflict of interest arising out of the differing types and quantum of evidence against each, including the disincentive to calling appellant to the stand despite his lack of a criminal record, mandates reversal of his conviction (People v Macerola, 47 NY2d 257; see, also, People v Baffi, 49 NY2d 820).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed and a new trial ordered in a memorandum.


text:
    The People of the State of New York, Respondent, v Norman Archer, Appellant.
    Argued March 25, 1980;
    decided April 24, 1980

      APPEARANCES OF COUNSEL

      Irving Anolik for appellant.

      Roderick C. Lankier, Deputy Attorney-General, Special State Prosecutor (Mark M. Baker of counsel), for respondent.

      Aaron Nussbaum for Macon B. Allen Black Bar Association, amicus curiae.

   OPINION OF THE COURT

Order affirmed for reasons stated in the Per Curiam opinion at the Appellate Division (68 AD2d 441).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.