text:
    The People of the State of New York, Respondent, v Joseph Contes, Appellant.
    Decided September 1, 1983
    APPEARANCES OF COUNSEL

      WilliamE. Hellerstein and Andrew C. Fine for appellant.

      Mario Merola, District Attorney {Michele A. Katz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of three counts of robbery in the first degree. The case against him rested largely on the identification testimony of a witness to the crime. That witness had had five to six minutes at the crime scene to observe defendant in excellent lighting conditions at close range. Immediately after the crime, the witness gave a detailed description of the perpetrator to police, including a tattoo which the witness had seen partially exposed. Defendant was arrested the next day and the witness, attending a lineup, identified him but with less than complete certainty. None of the subjects of the lineup had their arms exposed. After the lineup, the witness was shown a photograph of an arm with a tattoo, to which the witness responded that it appeared to be that of the assailant.

At trial, defendant was instructed to show the jury and the witness his tattooed arm, exposed only to the extent that the arm of the robber had been exposed. The witness then made a positive identification of defendant as the robber. Defendant, on this appeal, while not challenging the identification procedure, claims that the evidence of his guilt was legally insufficient. He contends that the only reason that the witness was able to positively identify defendant, after having been shown defendant’s arm again at trial, was that he had been shown a photograph of defendant’s tattooed arm some six months before trial. Defendant concludes that the basis of the witness’s identification of defendant could not therefore have been observations made at the time of the crime.

The standard for reviewing the legal sufficiency of evidence in a criminal case is whether “after viewing the évidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v Virginia, 443 US 307, 319 [emphasis in original]). Applying this standard, it cannot be said that the only rational inference that can be drawn from the witness’s in-court identification of defendant after having viewed his tattooed arm, is that the identification was the result of having been shown a photograph of the tattooed arm, and not from his observations at the crime scene. This being the only challenge to the evidence of defendant’s guilt, the evidence must be held sufficient to support defendant’s conviction.

Defendant also contends that the jury had been charged by the court in a way that impermissibly shifted a burden of proof to him. No objection or submission of an alternative instruction having been made, the point has not been preserved for this court’s review (see People v Cadorette, 56 NY2d 1007; People v Thomas, 50 NY2d 467).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Delia Breslin, Appellant, v New York City Police Pension Fund Board of Trustees et al., Respondents.
    Decided September 1, 1983

      APPEARANCES OF COUNSEL

      David L. Lewis for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F. X. Hart of counsel), for respondents.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 800).

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


text:
    Welford Realty, Inc., et al., Appellants, v Samuel Brause et al., Respondents.
    Decided September 1, 1983

      APPEARANCES OF COUNSEL

      Harry Grossman for appellants.

      David W. Bernstein for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (93 AD2d 758; see, also, 805 Third Ave. Co. v M. W. Realty Assoc., 58 NY2d 447).

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


text:
    In the Matter of Tahera K. Weinstein, Appellant, v Robert M. Haft, as Justice of the Supreme Court, Respondent.
    Decided September 1, 1983

      APPEARANCES OF COUNSEL

      Lawrence A. Kravitz for appellant.

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Michael H. Warren of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Insofar as the petition seeks relief by way of prohibition, it is predicated on the concept that, by allowing over three years to elapse from petitioner’s guilty plea without sentencing her and then adjourning the motion for a further year, respondent lost jurisdiction of the matter. The first three years were at petitioner’s behest, however, and under the circumstances of this case the additional time does not constitute such an “extremely long and unreasonable” delay (People ex rel. Harty v Fay, 10 NY2d 374, 379) as to divest the court of its power to sentence.

Denial of mandamus relief was also proper. Mandamus will lie to compel the determination of a motion (Matter of Briggs v Lauman, 21 AD2d 734, mot for lv to app den 15 NY2d 481; see Matter of Legal Aid Soc. v Scheinman, 73 AD2d 411, 413, affd 53 NY2d 12; Matter of National Auto Weld v Clynes, 89 AD2d 689) as well as to compel a trial court to proceed with sentencing (CPL 380.30, subd 1; Matter of Hogan v Bohan, 305 NY 110; see People ex rel. Prosser v Martin, 306 NY 710). Here, however, sentencing has been delayed at petitioner’s request, and in view of the medical testimony that further treatment might improve petitioner’s physical condition, we cannot say in this instance that it was an abuse of discretion for the Trial Judge to postpone disposition of the motion to dismiss pending receipt of a further medical report as to the success of such treatment.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Arthur M. Delmhorst, as Executor of Berton J. Delmhorst, Deceased, et al., Respondents, v State Tax Commission, Appellant.
    Decided September 1, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Carl E. Stephan and Peter H. Schiff of counsel), for appellant.

      Louis Sternbach for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (92 AD2d 981).

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


text:
    Angelo Glielmi et al., Respondents, v Toys “R” Us, Inc., et al., Respondents. Toys “R” Us, Inc., Third-Party Plaintiff-Respondent, v Melito Construction Corporation, Third-Party Defendant-Appellant.
    Submitted June 27, 1983;
    decided September 1, 1983
   Motion for leave to appeal denied as unnecessary (Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    Michael M. Graham et al., Respondents, v Carl Beermunder et al., Appellants, et al., Defendants.
    Submitted June 27, 1983;
    decided September 1, 1983
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order denying defendants’ motion to vacate, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 36, pp 144-145); motion otherwise denied, with $20 costs and necessary reproduction disbursements.


text:
    GIT Industries, Inc., Respondent, v Allan V. Rose, Appellant.
    Submitted July 11, 1983;
    decided September 1, 1983
   Motion to dismiss appeal denied.


text:
    In the Matter of the Application of Holliswood Care Center, Respondent, v David Axelrod, as Commissioner of the Department of Health of the State of New York, Appellant.
    Submitted July 18, 1983;
    decided September 1, 1983
   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 and is not a nonfinal order which comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    Betty O. Muka et al., Appellants, v Greene County, Respondent.
    Submitted July 25, 1983;
    decided September 1, 1983
   Motion to dismiss appeal granted to the extent that the appeal is transferred, without costs; to the Appellate Division, Third 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).


text:
    Tanner & Gilbert, Appellant, v 239 Central Park West Corporation et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted June 27, 1983;
    decided September 1, 1983
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division concerning the settlement of the statement in lieu of transcript, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondents filing multiple copies of opposing papers.


text:
    The People of the State of New York, Respondent, v Ronald J. Valo, Appellant.
    Submitted July 25, 1983;
    decided September 1, 1983
   Motion to vacate the Court of Appeals order of dismissal dated July 11, 1983 denied. [See 60 NY2d 588.]


text:
    In the Matter of Donald H. Elliott, Appellant, v City of Binghamton et al., Respondents.
    Submitted August 15, 1983;
    decided September 1, 1983
   Motion to limit issues on appeal denied.


text:
    Mobil Oil Corporation, Respondent-Appellant, v James H. Tully, Jr., et al., Constituting the New York State Tax Commission, Appellants-Respondents. Shell Oil Company, Respondent-Appellant, v New York State Tax Commission et al., Appellants-Respondents.
    Submitted July 11, 1983;
    decided September 1, 1983
   Motion to vacate the orders of the Appellate Division denied, without prejudice to withdrawal of the appeals and cross appeals pursuant to rule 500.14 of the Rules of the Court of Appeals (22 NYCRR 500.14).


text:
    In the Matter of Oriental Boulevard Co., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Decided September 7, 1983

      APPEARANCES OF COUNSEL

      John Nachazel for appellant.

      Ellis S. Franke and Ellen Cronly for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (92 AD2d 470).

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


text:
    Ermco Erectors, Inc., Appellant, v Grand Iron Works, Inc., Respondent.
    Decided September 7, 1983

      APPEARANCES OF COUNSEL

      George F. Mackey for appellant.

      Jeremy D. Morley for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (93 AD2d 878).

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


text:
    The People of the State of New York, Respondent, v Louis Pellegrino, Appellant.
    Decided September 7, 1983

      APPEARANCES OF COUNSEL

      Andrew H. Rossmer for appellant.

      Mario Merola, District Attorney {Anthony R. Dellicarri of counsel), for respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. Not having raised the issues by motion to vacate or otherwise in the court of first instance, defendant’s arguments that he should be relieved of his guilty plea and that there was a failure to comply with CPL 400.21 have not been preserved for our review (People v Pascale, 48 NY2d 997; People v Bell, 47 NY2d 839; People v Warren, 47 NY2d 740).

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


text:
    George A. Weissblum et al., Appellants, v Mostafzafan Foundation of New York, Formerly Known as the Pahlevi Foundation, Respondent.
    Submitted July 11, 1983;
    decided September 7, 1983

      APPEARANCES OF COUNSEL

      Stuart B. Newman and Vincent J. Syracuse for appellants.

      Peter I. Livingston and Jill S. Levin for respondent.
   OPINION OF THE COURT

Memorandum.

Defendant seeks to reargue our recent decision (59 NY2d 815) in this case whereby we decided that the rule of Barasch v Micucci (49 NY2d 594) and Eaton v Equitable Life Assur. Soc. (56 NY2d 900) should be applied to preclude defendant from vacating a default judgment entered against it for failing, as a result of law office failure, to timely file an answer.

Subsequent to our disposition of the liability question in this case, the Legislature passed and the Governor signed into law a new section 2005 to the CPLR which allows the lower courts to exercise discretion “to excuse delay or default resulting from law office failure.” (L 1983, ch 318.) That statute, by its terms, was made applicable to every action or proceeding still pending before a court. Although we previously disposed of the liability question in this matter, the issue of damages is yet to be resolved at trial. Consequently, the “action * * * still is pending before a court” and CPLR 2005 must, therefore, be applied.

While both courts below decided that defendant’s default was excusable, they did so without considering the requirements of CPLR 3012 (subd [d]) and 5015 (subd [a]) as mandated by CPLR 2005.

Accordingly, defendant’s motion for reargument should be granted, our previous order and decision should be vacated, and, upon reargument, the order of the Appellate Division should be reversed and the case remitted to that court for the exercise of its discretion under the new legislation.

Motion for reargument granted, this court’s order and decision of June 7, 1983 vacated, the remittitur recalled, and, upon reargument, the following determination is substituted therefor: “On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein, and the question certified answered in the negative. Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.”


text:
    In the Matter of Michael B., a Child Alleged to be Permanently Neglected. Broome County Department of Social Services, Respondent; Darlene B., Appellant. Charles FF et al., Intervenors-Respondents.
    Submitted August 29, 1983;
    decided September 7, 1983
   Motion for an order fixing visitation rights dismissed upon the ground that the Court of Appeals does not have authority to grant the relief requested. [See 58 NY2d 71.]


text:
    William R. Bahr, Appellant, v Cynthia Bahr, Respondent.
    Submitted July 25, 1983;
    decided September 7, 1983
   Motion for reargument of motion for leave to appeal granted, the order and decision of this court dated June 16, 1983 vacated, and, upon reargument, motion for leave to appeal from the order of the Appellate Division dated January 17, 1983, denied. [See 59 NY2d 606, 969.]


text:
    In the Matter of Gregory Fessette, Appellant, v New York State Human Rights Appeal Board, Respondent.
    Submitted July 25, 1983;
    decided September 7, 1983
   Motion for leave to appeal dismissed upon the ground that petitioner has failed to submit an affidavit of service showing that the notice of motion and accompanying papers were served upon respondent New York State Human Rights Appeal Board (see Rules of Practice of the Court of Appeals, § 500.0 [a]; 22 NYCRR 500.9 [c]).


text:
    The People of the State of New York, Respondent, v Charles Glinton, Appellant.
    Submitted July 25, 1983;
    decided September 7, 1983
   Motion for reargument dismissed for untimeliness (22 NYCRR 500.9 [f] [3]). [See 8 NY2d 742.]


text:
    Jou-Jou Designs, Inc., Appellant, v International Ladies’ Garment Workers’ Union, Local 23-25, Respondent.
    Submitted July 25, 1983;
    decided September 7, 1983
   Motion, insofar as it seeks a stay, denied without prejudice to a further application in the event violent picketing occurs prior to the determination of the appeal; motion, insofar as it seeks a preference, granted to the extent of setting the case down for argument on October 25, 1983.


text:
    Anna Kramm, Appellant, v Martin Richards et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Submitted July 11, 1983;
    decided September 7, 1983
   Motion for leave to appeal and, on the court’s own motion, appeal taken as of right dismissed, without costs, each upon the ground that the issue presented is moot, and the appeal taken as of right is dismissed upon the further ground that it does not lie from the Appellate Division order of unanimous affirmance.


text:
    Janet Leeds, Appellant, v Paul Leeds, Respondent.
    Submitted August 15, 1983;
    decided September 7, 1983
   On the court’s own motion, appeal dismissed, without costs, upon the ground that appellant is not a party aggrieved (CPLR 5511). Motion for a stay and for a preference dismissed as academic.


text:
    The People of the State of New York, Respondent, v Raphael Mateo, Appellant.
    Decided September 7, 1983
   Appeal dismissed upon the ground that the reversal at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of Jewish Child Care Association for Guardianship of the Person of Thomas R., Respondent. Marlene R., Appellant.
    Submitted July 18, 1983;
    decided September 7, 1983
   Motion for leave to appeal dismissed for failure to demonstrate timeliness of the motion as required by rule 500.9 (a) (1) of the Rules of the Court of Appeals (22 NYCRR 500.9 [c] [1]) (see Manolakos v Manolakos, 56 NY2d 591).


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Stephen Dalsheim, as Warden of Ossining Correctional Facility, Respondent.
    Submitted August 8, 1983;
    decided September 7, 1983
   Motion to dismiss appeal granted and appeal dismissed, without costs. 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:
    John B. Salch, Appellant, v Louis Paratore et al., Respondents.
    Submitted August 1, 1983;
    decided September 7, 1983
   Motions to dismiss the appeal denied.


text:
    Awrich Restaurant, Inc., Doing Business as Caribbean Restaurant, Appellant, v New York State Liquor Authority, Respondent.
    Decided September 15, 1983

      APPEARANCES OF COUNSEL

      George S. Goldberg and Jerome Gold for appellant.

      Stanley Stein and Joseph S. Ryan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Where an employee is found to have been vested with managerial authority over the operation of premises licensed to serve liquor and the conduct of the licensed activity thereon on other than a casual or temporary basis, his conduct may be imputed to the licensee in establishing a violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law despite the lack of a pattern of conduct or any actual knowledge by the licensee of the bartender’s conduct (Matter of Falso v State Liq. Auth., 43 NY2d 721). Here the licensee testified that the bartender left in charge was responsible for, among other things, dealing with any disorder which might come up on the premises and making sure that the premises were operating in orderly fashion. Based on this testimony, there was substantial evidence to support the hearing officer’s determination that the bartender had been delegated sufficient managerial authority to hold the licensee responsible for his conduct. Moreover, the licensee admitted that he had been aware of problems with prostitutes coming on the premises, and he had been sent numerous warning letters by the authority with regard to subdivision 6 of section 106 violations. This evidence provides further support for the hearing officer’s ruling that the licensee should, with due diligence and proper supervision, have known of the events that took place on the premises which gave rise to the violation.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, with costs, in a memorandum.


text:
    The People of the State of New York ex rel. Joseph A. Kaplan, on Behalf of Armando Fuentes, Appellant, v Commissioner of Correction of the City of New York et al., Respondents.
    Decided September 15, 1983

      APPEARANCES OF COUNSEL

      Joseph Alan Kaplan for appellant.

      Elizabeth Holtzman, District Attorney (.Alan D. Rubinstein of counsel), for respondents.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs. Relator is not entitled to habeas corpus relief because the only remedy to which he would be entitled would be a new trial or new appeal, and not a direction that he be immediately released from custody (People ex rel. Douglas v Vincent, 50 NY2d 901).

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


text:
    In the Matter of Admiral Wine & Liquors Co., Also Known as Admiral Wine Merchants, Appellant, v State Liquor Authority, Respondent.
    Submitted September 6, 1983;
    decided September 15, 1983
   Motion by Peerless Importers, Inc., Knickerbocker Liquors Corporation, Charmer Industries, Inc., and New York State Wholesale Liquor Association, Inc., insofar as it seeks to convert this article 78 proceeding to an action for declaratory judgment and to intervene as defendants denied; and, insofar as it seeks leave to appear as amici curiae on the appeal herein, granted only to the extent that a memorandum may be filed.


text:
    Associated Builders and Owners of Greater New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Submitted June 27, 1983;
    decided September 15, 1983
   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 Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    In the Matter of Christina B., an Infant. Noah Weinberg, as Commissioner of the Department of Social Services of Rockland County, Appellants, and Martin P. et al., Intervenors-Appellants; Cesar Perales, as Commissioner of the New York State Department of Social Services, Respondent, and Alfred A. et al., Intervenors-Respondents.
    Submitted August 22, September 6, 1983;
    decided September 15, 1983
   Motion by respondent State Commissioner to dismiss appeal taken as of right by intervenors-appellants granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion by intervenors-appellants for leave to appeal denied. Motion by intervenors-appellants for a stay dismissed as academic.

Motion by appellant county petitioner to withdraw his appeal granted and appeal withdrawn. Motions by intervenors-respondents and respondent to vacate statutory stay denied as unnecessary because the provisions of CPLR 5519 (subd [a], par 1) do not attach by reason of the withdrawal of the county from this appeal. Motion by respondent to dismiss county petitioner’s appeal dismissed as academic, inasmuch as that appeal is withdrawn herewith.


text:
    General Accident Group, as Subrogee of Mary A. Arnold, Appellant, v Ronald M. Scott, Respondent, et al., Defendant.
    Submitted September 12, 1983;
    decided September 15, 1983
   Motion to dismiss appeal taken as of right pursuant to CPLR 5601 (subd [a]) granted and 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. Motion to dismiss appeal taken as of right pursuant to CPLR 5601 (subd [c]) granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not grant a new trial or hearing (see Cohen and Karger, Powers of the New York Court of Appeals, § 63, pp 283-284).


text:
    Huntington Mining Holdings, Inc., Appellant, v Cottontail Plaza, Inc., Respondent.
    Submitted September 6, 1983;
    decided September 15, 1983
   Motion for a stay granted to the extent of staying enforcement of the order of the Appellate Division pending determination of the appeal herein, on condition that petitioner post a $25,000 bond.


text:
    In the Matter of the Application of Louise McCormick et al., Appellants, v David Axelrod, as Commissioner of New York State Department of Health, et al., Respondents.
    Submitted August 15, 1983;
    decided September 15, 1983
   Motion to amend contempt order granted and this court’s decision and order of July 7, 1983 amended by awarding petitioners $20 costs plus disbursements on the contempt motion as provided in CPLR 8301 (subd [b]).

Judges Meyer and Kaye taking no part. [See 59 NY2d 574.]


text:
    National Committee of the National Caucus of Labor Committees et al., Appellants, v The People of the State of New York, Respondent.
    Submitted August 29, 1983;
    decided September 15, 1983
   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. (Markantonis v Madlan Realty Corp., 262 NY 354, 363; Cohen and Karger, Powers of the New York Court of Appeals, § 46, p 193.)


text:
    Newin Corporation et al., Appellants, v Hartford Accident and Indemnity Company et al., Respondents, et al., Defendant.
    Submitted August 8, 1983;
    decided September 15, 1983
   Motion, insofar as it seeks leave to appeal against defendant Continental Insurance Company from the Appellate Division order of June 23, 1983 to review the Appellate Division order of February 17, 1981, dismissed, with $20 costs and necessary reproduction disbursements to respondent Continental, upon the ground that no such appeal lies (cf. CPLR 5501, subd [a], par 1). Motion, insofar as it seeks leave to appeal against defendants Hartford Accident and Indemnity Company and Insurance Company of North America from the Appellate Division order of June 23, 1983, granted.


text:
    In the Matter of Charles E. Schumer, Appellant-Respondent, v Elizabeth Holtzman, as District Attorney of Kings County, et al., Respondents-Appellants.
    Submitted August 2, 1983;
    decided September 15, 1983
   Motion to dismiss appeal taken by petitioner denied. Motion by respondents-appellants for leave to cross appeal granted. Motion for a stay denied.

Judges Meyer and Kaye taking no part.


text:
    In the Matter of Top Tile Building Supply Corp. et al., Appellants, v New York State Tax Commission et al., Respondents.
    Submitted July 11, 1983;
    decided September 15, 1983
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]), and that no substantial constitutional question is directly involved.


text:
    Thomas Torelli, as Administrator of the Estate of James Torelli, Respondent, v John Esposito et al., Appellants.
    Submitted August 15, 1983;
    decided September 15, 1983
   Motion to vacate the Court of Appeals order of dismissal dated July 5, 1983 denied, with $20 costs and necessary reproduction disbursements. [See 60 NY2d 585.]


text:
    In the Matter of Charles W., an Infant Alleged to be Permanently Neglected. Commissioner of Department of Social Services of Rockland County, Respondent; Brinda W., Appellant.
    Submitted July 25, 1983;
    decided September 15, 1983
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie from the unanimous Appellate Division order of affirmance.


text:
    Pearlina Innis et al., Appellants, v State of New York et al., Respondents, et al., Defendants.
    Decided September 20, 1983

      APPEARANCES OF COUNSEL

      Neil H. Kessner and Debra B. De Cicco for appellants.

      Robert Abrams, Attorney-General (Wayne J. Keely of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

The determination of an application to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act is within the discretion of the court below. (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System, 55 NY2d 979, 981.) Absent an abuse of discretion, not present here, that determination is nonreviewable by this court. (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 353-354, 368-369.)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Prudco Realty Corp., Respondent, v Gerald E. Palermo et al., Constituting the Zoning Board of Appeals of the Town of Brookhaven, Respondents, and S. F. Shopping Center, Inc., Intervenor-Appellant.
    Decided September 20, 1983

      APPEARANCES OF COUNSEL

      William A. Wismann for intervenor-appellant.

      Floyd G. Grossman for Prudco Realty Corp., respondent.

      Martin J. Kerins and Sherri Ann Levy for Gerald E. Palermo and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner commenced this article 78 proceeding to review a determination of the zoning board of appeals (Board) that granted an application of the intervenorrespondent-appellant, S. F. Shopping Center, Inc., for a certificate of existing use for the operation of a gasoline service station. S. F. Shopping Center, Inc., interposed its answer on August 20,1981, without asserting the petitioner’s lack of standing to challenge the Board’s determination pursuant to CPLR 3211 (subd [a], par 3). Inasmuch as CPLR 3211 (subd [e]) provides that such a defense is waived if not raised either by motion or in the responsive pleading, S. F. Shopping Center, Inc., must be deemed to have waived its objection to petitioner’s standing. We note parenthetically that only the respondent board of appeals filed an amended answer pursuant to CPLR 3025 (subd [a]) and no standing objection was raised there either.

With respect to the Board’s determination that the nonconforming use had not been abandoned, we note that the Brookhaven ordinance provides that “[wjhenever a nonconforming use has been discontinued, abandoned or not used for a period of one (1) year or more, such use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this ordinance.” (Code of Town of Brookhaven, § 85-431, subd A, par [5] [emphasis added].) Thus, the property owner’s intent, the owner’s lease with the tenant and the presence of underground storage tanks is simply not enough to demonstrate that the property was used as a gasoline service station throughout the period in question. Indeed, the respondents conceded at the hearing on this matter that the gasoline pumps had been removed and that the building on the premises was used as a tobacco shop for more than a year before it became vacant. In light of this, it is clear that the Board’s decision was not based on substantial evidence. (See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anna Walinska, Appellant, v City of New York Department of Rent and Housing Maintenance et al., Respondents.
    Decided September 20, 1983

      APPEARANCES OF COUNSEL

      Adam Walinsky and Mark G. O’Connor for appellant.

      Harry Michelson and Julius A. Copeland for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (93 AD2d 722). We add only that an evidentiary hearing was not required (Matter of Colton v Berman, 21 NY2d 332, 333-334; Friendly, “Some Kind of Hearing”, 123 U of Pa L Rev 1267).

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


text:
    Michael Kelly, as a Taxpayer of the Town of Chester, et al., Appellants, v Chester Fire District, Respondent.
    Decided September 20, 1983

      APPEARANCES OF COUNSEL

      Robert N. Isseks, P. C., for appellants.

      John B. Cameron for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. Wé agree with the Appellate Division that the acts here challenged are ultra vires and that the plaintiffs are not entitled to relief under general equitable principles or the doctrine of estoppel.

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


text:
    In the Matter of Wayne Brandt, Respondent, v Board of Cooperative Educational Services, Third Supervisory (Advisory) District, Suffolk County, Appellant.

      Submitted August 29, 1983;
    decided September 20, 1983
   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 and is not the type of nonfinal order which comes within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of John Johnson, Also Known as Robert Summers, Appellant, v Peggy Bernheim, as Justice of the New York Supreme Court, Respondent.
    Submitted July 25, 1983;
    decided September 20, 1983
   Motion for reargument granted, this court’s decision and order dated June 7, 1983 vacated and, upon reargument: Motion for leave to appeal denied. 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. Motion for poor person relief dismissed as academic. [See 59 NY2d 839.]


text:
    Damon Daniel, an Infant, by His Mother and Natural Guardian, Margo Daniel, et al., Respondents, v Sergio T. Rivera et al., Respondents, and Aetna Casualty & Surety Co., Appellant.
    Decided September 22, 1983

      APPEARANCES OF COUNSEL

      Joel R. Appelbaum for appellant.

      Benjamin J. Fried for Damon Daniel and another, respondents.

      Robert J. Ellsworth for Motor Vehicle Accident Indemnification Corporation, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (93 AD2d 877).

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


text:
    Berg-Bakis Limited et al., Appellants, v City of Yonkers et al., Respondents.
    Decided September 22, 1983

      APPEARANCES OF COUNSEL

      Martin David Tropper for appellants.

      Peter F. Davidson, Corporation Counsel {Richard A. Duschaneck of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed, without costs. Having assented to the modification at the Appellate Division, the appellants are not aggrieved by that modification (CPLR 5601, subd [a], par [iii]; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 50, pp 222-223, n 56).


text:
    Ezra G. Levin et al., Appellants, v Hoffman Fuel Company, a Division of Chevron, U. S. A., Inc., Respondent.
    Decided September 22, 1983

      APPEARANCES OF COUNSEL

      Ellen R. Nadler for appellants.

      William Simon for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (94 AD2d 640).

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


text:
    Everett J. Krantz et al., Appellants, v Albert Mendel & Son, Inc., et al., Respondents, et al., Defendants. (Action No. 1.) (And Another Action.)
    Decided September 22, 1983

      APPEARANCES OF COUNSEL

      Stephen L. Oppenheim for appellants.

      Keith V. La Rose for Albert Mendel & Son, Inc., and others, respondents.

      Curtiss B. Kline for Kent T. Kay, respondent.

      Anthony J. Benedict for Charles Frumerie and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

It was not error in the circumstances disclosed for the Appellate Division to have determined that Supreme Court abused its discretion as a matter of law in denying defendants’ motions to dismiss the action on the ground of untimely service of the complaint. We observe that this is not, and was not conceived by either court below as, a case of “law office failure” within the meaning of Barasch v Micucci (49 NY2d 594) or the ambit of chapter 318 of the Laws of 1983.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Sandy Valerio, Appellant.
    Decided September 22, 1983
    APPEARANCES OF COUNSEL

      Sam C. Bonney for appellant.
   OPINION OF THE COURT

Memorandum.

.The order of Ontario County Court should be reversed, defendant’s conviction vacated, and the accusatory instrument dismissed.

Defendant was convicted under subdivision 5 of section 240.25 of the Penal Law which provides:

“A person is guilty of harassment when, with intent to harass, annoy or alarm another person:

* * *

“5. He engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.”

The proof was that while picketing on the opposite side of the street from a union headquarters, defendant pointed to a union official as he left the building and stated publicly in a loud voice, “There is the corruption I am talking about * * * and there is one of the corrupt ones.” This constitutes proof of neither the course of conduct nor the repeated commission of acts proscribed by the statute. Accordingly, the violation of harassment was not established beyond a reasonable doubt (People v Otto, 40 NY2d 864).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, conviction vacated and accusatory instrument dismissed in a memorandum.


text:
    In the Matter of the Claim of Garland D. Gates, Claimant, v McBride Transportation, Inc., et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff, Carlin Meyer and Diane Ciccone of counsel), for appellant.

      Thomas J. Spargo and Raymond C. Green for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Workers’ Compensation Board reinstated.

A finding of fact made by the Workers’ Compensation Board is considered conclusive on the courts if supported by substantial evidence (Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6). In this case, the board’s finding that the claimant’s heart attack was causally related to his employment was supported by substantial evidence: claimant’s own testimony that he was irritated by a phone call he received, requiring him to redo an entire morning’s work, and the fact that claimant experienced the heart attack very shortly after the phone call. In addition, there was medical testimony as to the causal relationship. Inasmuch as there was substantial evidence to support the determination of the board, the Appellate Division erred in reversing that determination.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and decision of the Workers’ Compensation Board reinstated in a memorandum.


text:
    Esther Knobel, Respondent, v Paul Knobel, Appellant.
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      George Nager for appellant.

      Joel R. Brandes for respondent.
   OPINION OF THE COURT

Memorandum.

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

Notwithstanding defendant’s claim that plaintiff’s true motive in seeking a discontinuance was to bring another action in which equitable distribution would be available, it was not improper for the Appellate Division to have granted the discontinuance with prejudice to the institution of a subsequent matrimonial action based on any conduct which might have been the basis for an action prior to January 7, 1983 (Tucker v Tucker, 55 NY2d 378, 384, n 2).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Robert D. L. Gardiner, Respondent, v Michael A. Lo Grande, as Supervisor of the Town Board of the Town of Islip, et al., Appellants.
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      William R. Bennett, Town Attorney (Richard P. De Bragga of counsel), for appellants.

      Adolph H. Siegel for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (83 AD2d 614) (see, e.g., Matter of Circus Disco v New York State Liq. Auth., 51 NY2d 24; see, also, Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028).

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


text:
    Q.P.I. Restaurants Ltd., Respondent, v Desmond Slevin et al., Appellants, et al., Defendant.
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      Seymour I. Cohen for appellants.

      David G. Samuels for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]\ the submission as to the applicability of chapter 318 of the Laws of 1983 is treated as a motion for reargument of this court’s determination of December 15, 1982; motion granted, decision and order of December 15,1982 vacated, the remittitur recalled and, upon reargument, the following determination substituted therefor: “On review of submissions pursuant to rule 500.2 (b) (22 NYCRR 500.2 [g]), order affirmed, without costs. Question certified answered in the negative. (Cf. Weissblum v Mostafzafan Foundation of N. Y., 60 NY2d 637.)”

Appeal from the April 21, 1983 order of the Appellate Division dismissed, without costs, as academic, in view of the disposition made on reargument.

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


text:
    Hamlet Development Co. et al., Appellants, v Arthur Venitt, Respondent.
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      David I. Rosenberg for appellants.

      George Berger for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (95 AD2d 798).

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


text:
    Madeline Blais et al., Appellants, v Alden Deyo, Jr., Respondent, et al., Defendant. (And Another Appeal.)
    Decided September 27, 1983

      APPEARANCES OF COUNSEL

      Lois McS. Webb for appellants.

      John L. Bell for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

In granting the motion to dismiss on the ground of forum non conveniens, the Appellate Division did not abuse its discretion as a matter of law or in exercising that discretion fail to take into account all of the various factors entitled to consideration (Irrigation & Ind. Dev. Corp. v Indag, S.A., 37 NY2d 522, 525).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, in a memorandum.


text:
    In the Matter of Vincent T. Cerbone.
    Decided September 27, 1983
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Vincent T. Cerbone is not suspended from his office of Justice of the Mount Kisco Town Court, Westchester County, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of the Application of Hoan Holding Co., Appellant, v Daniel W. Joy, as Commissioner of the Department of Housing Preservation and Development, Respondent, and Homer Price, Intervenor-Respondent.
    Submitted September 6, 1983;
    decided September 27, 1983
   Motion for reargument dismissed as untimely (22 NYCRR 500.9 [f]), with $20 costs and necessary reproduction disbursements. [See 59 NY2d 1012.]


text:
    Theodore W. Kheel, Appellant, v Richard Ravitch et al., Respondents.
    Submitted August 15, 1983;
    decided September 27, 1983
   Motion to dismiss appeal from the Appellate Division order of May 5, 1983 denied. On the court’s own motion, appeal taken from the Appellate Division order of June 23, 1983 dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Stephen Moses, Appellant.
    Submitted July 25, 1983;
    decided September 27, 1983
   Motion to vacate the Court of Appeals order of dismissal dated April 28, 1983 granted and the appeal reinstated. [See 59 NY2d 667.]


text:
    The People of the State of New York ex rel. Sharon Spence, on Behalf of Kenneth Moss, Appellant, v Elizabeth Holtzman, as District Attorney of Kings County, et al., Respondents.
    Submitted August 8, 1983;
    decided September 27, 1983
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


text:
    In the Matter of United States Power Squadrons, Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Great Neck Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Hempstead Bay Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Westchester Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent.

      Submitted September 19, 1983;
    decided September 27, 1983
   Motion for reargument dismissed as untimely (22 NYCRR 500.9 [f]). [See 59 NY2d 401.]


text:
    David Zlinkoff, Appellant, v Marie M. Lambert et al., Respondents.
    Submitted September 19, 1983;
    decided September 27, 1983
   Motion for leave to appeal and/or for reargument of motion for leave to appeal denied. [See 58 NY2d 610.]


text:
    The People of the State of New York, Respondent, v Joseph P. Leonardo, Appellant.
    Argued September 19, 1983;
    decided September 29, 1983

      APPEARANCES OF COUNSEL

      Joseph B. Mistrett, Joseph A. Shifflett and Rose Sconiers for appellant.

      Richard J. Arcara, District Attorney {John J. De Franks and Jo Faber of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (89 AD2d 214).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Alan S. Stolowitz et al., Respondents, v Mount Sinai Hospital, Appellant.
    Argued September 12, 1983;
    decided September 29, 1983

      APPEARANCES OF COUNSEL

      Lissa Griffin, Ignatius John Melito and Thomas R. Newman for appellant.

      Douglas E. McKeon and John J. Tullman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, and the motion to dismiss the complaint granted unconditionally.

On this motion by defendant to dismiss the action for the failure of plaintiff for a period of nine months to serve a complaint, plaintiff concedes, as he must, that no affidavit of merits was submitted. Because of this deficiency it was error as a matter of law not to grant the motion to dismiss without condition. (Amodeo v Radler, 59 NY2d 1001; Barasch v Micucci, 49 NY2d 594, 599; Sortino v Fisher, 20 AD2d 25, 31-32.)

In view of this disposition we have no occasion to address the contentions of the parties as to the reasonableness of the proffered excuse for the delay in serving the complaint.

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

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.


text:
    Mildred A. McLearn, Appellant, v Cowen & Co. et al., Defendants, and Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Respondent.
    Submitted September 19, 1983;
    decided September 29, 1983

      APPEARANCES OF COUNSEL

      Roy M. Cohn and John A. Kiser for appellant.

      Richard Conway Casey and Kent E. Daiber for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise the defense of failure to state a cause of action.

For a statement of the history of this appeal see 48 NY2d 696. Subsequent to that determination, plaintiff returned to the Federal courts for clarification of the District Court determination as to dismissal of her State law cause of action. Pending such clarification she moved for reargument in our court. We denied that motion without prejudice to renewal following clarification by the Federal courts (52 NY2d 896). On January 20, 1982, the Federal District Court amended its original order of dismissal to include the provision, “The foregoing dismissal is without prejudice to any claim which plaintiff may have under state law”. We then granted plaintiff’s renewed motion for reargument and set the case down for argument (59 NY2d 840).

Inasmuch as it has now been made clear that the Federal dismissal did not include the State law cause of action, it was error to have granted defendant Merrill Lynch’s motion to dismiss on the ground of res judicata.

There remains, however, the question whether it was also error for the Appellate Division on its own to grant the motion to dismiss on the alternative ground that the complaint fails to state a cause of action under State law. This issue was not addressed by the majority of our court on the initial appeal to us.

We now conclude that it was error for the Appellate Division to have considered this as a ground for the motion to dismiss. Merrill Lynch’s motion was expressly based on the res judicata contention, now found to be without merit. No mention was made of dismissal for failure to state a cause of action and its assertion that this ground must be deemed to have been embraced in the prayer for “other and further relief” is unavailing.

Inasmuch as the motion to dismiss was not predicated on a claimed failure to state a cause of action plaintiff was never afforded an opportunity to seek leave to replead within the prescriptions of CPLR 3211 (subd [e]). Deprivation of that opportunity worked substantial prejudice to her. It was, therefore, error on the part of the Appellate Division to have granted the motion on the alternative ground.

The defense of failure to state a cause of action is not lost, however, by failure to include this ground in the motion under 3211 (CPLR 3211, subd [e]). Although it may not be raised in another motion under that section (of which the statute permits only one) it may be later raised in another form (Rich v Lefkovits, 56 NY2d 276, 281-282).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Upon reargument, order reversed, with costs, and the order of Supreme Court, Westchester County, denying defendant’s motion to dismiss reinstated, without prejudice, however, to the right of defendant, other than in a motion under CPLR 3211, to raise a defense of failure to state a cause of action.


text:
    Jack Canter et al., Appellants, v Norman Mulnick, Respondent.
    Decided September 29, 1983

      APPEARANCES OF COUNSEL

      Jacob Rabinowitz for appellants.

      Nathan Cyperstein for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly held that the plaintiffs’ affidavit failed to establish the merit of their case, and that the motion to dismiss should have been granted unconditionally (see Stolowitz u Mount Sinai Hosp., 60 NY2d 685).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Vito Macina, Appellant, v Joan Macina, Respondent.
    Decided September 29, 1983

      APPEARANCES OF COUNSEL

      Philip F. Alba for appellant.

      Edward J. Ledogar and James P. Shannon for respondent.
   OPINION OF THE COURT

Memorandum.

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

Supreme Court found, and the Appellate Division affirmed the finding that plaintiff has failed to demonstrate that defendant promised to reconvey the subject property. That being so, and there being support in the record, the lower courts properly held that plaintiff is not entitled to relief in the nature of a constructive trust. Nor could the trial court grant plaintiff relief on a claim of equitable lien, inasmuch as such a theory of recovery was never raised in the pleadings or at trial (see Collucci v Collucci, 58 NY2d 834).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Fidelity and Deposit Company of Maryland, Appellant, v Arthur Andersen & Co., Respondent.
    Submitted September 22, 1983;
    decided September 29, 1983

      APPEARANCES OF COUNSEL

      William Hart, Robert Beau Leonard, Steven Gutman and Jan P. Ryan for appellant.

      Edward J. Ross for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

Whether Special Term’s vacatur of defendant’s default in answering was an abuse of discretion as a matter of law is a question of law reviewable by certified question (Barasch v Micucci, 49 NY2d 594, 598). The appeal is, therefore, properly before us. But whether the matter be considered under the standard established by chapter 318 of the Laws of 1983, which became law during the pendency of this appeal, or that applicable prior to that enactment, there must be an affirmance.

Required are a reasonable excuse for the delay and an affidavit of merits. Sufficiency of the affidavit is, however, an issue “ordinarily be left to the discretion of the lower courts” (Barasch v Micucci, supra, at p 599). Neither Special Term’s conclusion that “Andersen has met the requirement of establishing a meritorious defense * * * by a person with sufficient knowledge of [the] facts,” nor its holding that the course of prior dealings between the parties and the pendency of related civil and criminal litigation demonstrated a reasonable excuse for the delay in answering can be said on the record before us to have been an abuse of discretion as a matter of law.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order affirmed, etc.


text:
    The People of the State of New York ex rel. Clifford Crawford, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Decided September 29, 1983

      APPEARANCES OF COUNSEL

      Norman P. Effman for appellant.

      Richard J. Arcara, District Attorney {John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (96 AD2d 757).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Paul J. Amrod, Appellant, v Briarwood Properties, Inc., Defendant, and Sunnycroft Ponderosa, Inc., Respondent.
    Submitted September 15, 1983;
    decided September 29, 1983
   Motion to substitute new question for the question certified by the Appellate Division or, alternatively, to direct that the Appellate Division certify a proper question, dismissed upon the ground that this court does not have the authority to grant the relief requested. [See 55 NY2d 742.]


text:
    The People of the State of New York ex rel. Clifford Crawford, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided September 29, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it is moot.


text:
    Cheryl A. Grassia, Appellant, v Robert Lascola et al., Respondents.
    Submitted July 25, 1983;
    decided September 29, 1983
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed a judgment, denied. Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed an order denying plaintiff’s motion to amend her complaint against Millard Fillmore Hospital, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to respondent Calabrese.


text:
    The People of the State of New York, Respondent, v Susan Hallett, Appellant.
    Submitted August 1, 1983;
    decided September 29, 1983
   Renewed motion to vacate the Court of Appeals order of dismissal dated July 2, 1980 and to reinstate the appeal denied.

Judge Simons taking no part.


text:
    In the Matter of Peter Kourakos, Appellant, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
    Submitted August 8, 1983;
    decided September 29, 1983
   Motion for clarification of order of dismissal dated June 16, 1983 or, in the alternative, for leave to appeal, denied in each respect. [See 59 NY2d 967.]


text:
    Maria R. M. Rodriguez, Individually and as Administratrix of the Estate of Israel M. Rodriguez, Deceased, and as Natural Guardian and Mother of Blanca R. Rodriguez, an Infant, Respondent, v City of New York et al., Defendants, and Richard Riccio, Appellant.
    Submitted August 22, 1983;
    decided September 29, 1983
   Motion to dismiss appellant Riccio’s appeal denied.


text:
    In the Matter of Alfreda W. Slominski, as Comptroller of the County of Erie, Appellant-Respondent, v Edward J. Rutkowski, as County Executive of Erie County, et al., Respondents-Appellants.
    Submitted September 12, 1983;
    decided September 29, 1983
   Motion to dismiss appeal taken as of right by appellant-respondent denied. Motion by respondents-appellants for leave to cross-appeal granted.


text:
    Sterling Factories, Inc., Respondent, v Birk Iron Works, Inc., Appellant.
    Submitted August 15, 1983;
    decided September 29, 1983
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the April 30, 1982 order of Supreme Court, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal otherwise, denied.


text:
    Victor Scocozza Studio Associates, Inc.,, et al., Appellants, v City of New York et al., Respondents.
    Submitted August 22, 1983;
    decided September 29, 1983
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie from the unanimous order of the Appellate Division. Motion for leave to appeal denied.


text:
    Stanley Yalkowsky, Appellant, v Benjamin Shedler et al., Respondents.
    Submitted August 1, 1983;
    decided September 29, 1983
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the grounds that the modification at the Appellate Division was not in a substantial respect by which appellant was aggrieved and that no substantial constitutional question is directly involved.

Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the order dismissing the complaint as to defendant Americo Napolitano, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it otherwise seeks leave to appeal, denied. Twenty dollars costs and necessary reproduction disbursements to respondents.


text:
    In the Matter of Orazio Greco, Appellant, v Board of Examiners of Nursing Home Administrators, Respondent.
    Argued September 12, 1983;
    decided October 18, 1983
    APPEARANCES OF COUNSEL

      Brendan C. O’Shea for appellant.

      Robert Abrams, Attorney-General {Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner is a nursing home administrator. Respondent revoked his license after a hearing because he had accepted unreported income in addition to his salary and he had participated in several kickback schemes. Petitioner’s principal contention on this appeal is that the Special Prosecutor, in exchange for his co-operation during an investigation of these kickback schemes, promised to intercede with respondent to save petitioner’s license but failed to do so and that he is entitled to the benefit of that bargain. For his part, the prosecutor contends that he did advise respondent of petitioner’s co-operation in some of the prosecutions but that he also advised respondent that petitioner failed to render all the promised assistance because he intentionally absented himself during one crucial trial. The terms of the bargain and whether or not petitioner failed to aid the prosecutor as he promised presented questions of fact for determination by respondent. It resolved the issues against petitioner and its findings have been affirmed by the Appellate Division. Since there is evidence in the record to support those findings, the matter is beyond our review. We would, however, note that in the future the parties would be well advised to reduce such agreements to writing to avoid disputes about the bargain and the exact scope of the assistance required and promised (see People v Selikoff, 35 NY2d 227, 242-244).

Under applicable law, respondent was not bound by the Special Prosecutor’s promises but was only required to give “weighty consideration” to the evidence of petitioner’s cooperation (see Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 66). The evidence in the record establishes that it did so but that it felt compelled to revoke petitioner’s license because of his serious misconduct.

We have considered the other points raised by petitioner but reject them for reasons stated in the decision of the Appellate Division (91 AD2d 1108).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Westhampton Nursing Home, Respondent, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued September 14, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), for appellants.

      Jay G. Strum and John J. Hart for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division (67 AD2d 1017) brought up for review should be reversed, with costs, and the judgment of Special Term determining that respondent commissioner had properly computed petitioner’s reimbursement rate for 1976 and 1977 should be reinstated.

Petitioner, a licensed residential health care center, commenced this action seeking a declaratory judgment that it was entitled to increased reimbursement for 1976 and 1977 at a rate adjusted to reflect increased costs as fixed by a labor contract it executed in August of 1975. Respondent commissioner contended that petitioner’s rate was reasonably and properly determined by application of the established formula using petitioner’s allowable costs for the year 1974 multiplied by a factor projecting those costs to the end of the rate year (see, generally, 10 NYCRR 86-2.12 et seq.; Matter of Sigety v Ingraham, 29 NY2d 110; Matter of Kaye v Whalen, 56 AD2d 111, affd 44 NY2d 754). Having computed the rate for 1976 and 1977 by that method, he refused to consider actual labor costs for 1975, contending he was proscribed from doing so by the provisions of former 10 NYCRR 86.17. The Appellate Division held that the commissioner had waived the provisions of former section 86.17 by reimbursing petitioner for its actual labor costs in 1975. The commissioner had explicitly limited those reimbursements to the year 1975, however, and we find no waiver. Moreover, as the Appellate Division found, respondents were neither bound by agreement to reimburse at that rate in the future nor could they be estopped by their conduct. In this court, petitioner contends that the provisions of former section 86,17 (see, also, 10 NYCRR 86-2.14, eff Jan. 1, 1976) did not preclude consideration of actual costs for years after 1975. Insofar as the commissioner interpreted the regulation to prohibit the use of actual costs for purposes of adjusting rates for any year other than 1975, his interpretation is neither unreasonable nor irrational and it should be upheld (see Matter of Robins v Blaney, 59 NY2d 393, 399).

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and the original judgment of Supreme Court, Albany County, reinstated in a memorandum.

       Former 10 NYCRR 86.17 provides that: “(a) The State Commissioner of Health may consider only those applications for prospective revisions of certified rates which are based on (1) requests for revisions in 1975 reimbursement rates for cost increases, incurred prior to the effective date of this section”. The regulation was effective November 26, 1975.


text:
    The People of the State of New York, Respondent, v Steven D. Parker, Appellant.
    Argued September 15, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Samuel J. Castellino, Public Defender {Joseph J. Balok, Jr., of counsel), for appellant.

      James T. Hayden, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed (90 AD2d 565).

On May 18, 1981 defendant was convicted after a jury trial of murder in the second degree, robbery in the first degree and burglary in the first degree. On this appeal he contends that the judgment should be reversed and a new trial ordered because widespread pretrial publicity prevented him from receiving a fair trial. The issue was first presented by a motion for a change of venue to the Appellate Division before trial. It denied the application and we find no error in the court’s ruling at that stage of the proceedings. On the direct appeal from the judgment, defendant now renews his claim. The record on appeal does not contain a transcript of the jury selection proceedings. Thus, although there was extensive pretrial publicity concerning the homicide and defendant’s role in it, there is no record from which we may determine that counsel was unable to select a fair and impartial jury (see People v Di Piazza, 24 NY2d 342). Proper procedure after denial of a motion for change of venue requires that a defendant attempt to select an impartial jury and that the proceedings be stenographically transcribed. At that time counsel could have attempted to establish by his questions and the answers to them that the extensive publicity made it impossible to select an impartial jury, if such was the fact, and upon said record the motion for change of venue could have been renewed and given proper consideration by the court (see CPL 230.20, subd 2; 255.20, subd 3; People v Shedrick, 83 AD2d 988). An added factor for consideration would be whether or not the defendant exercised all of his allotted peremptory challenges in selecting a jury.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    Board of Education of the City of New York, Appellant, v State of New York, Respondent.
    Argued September 13, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (88 AD2d 1057).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Tioga Nursing Home, Inc., Appellant, v David Axelrod, as Commissioner of the Department of Health of the State of New York, et al., Respondents, et al., Defendant.
    Argued September 14, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      James S. Gleason for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (90 AD2d 570). We would only add that to the extent that it can be argued that former regulation 10 NYCRR 86.16 was inconsistent with the purpose of article 28-A of the Public Health Law, that regulation does not control.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Jose F. Sierra, Respondent, v Robert J. McGuire, as Police Commissioner of the City of New York, Appellant.
    Argued September 13, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Debra A. James of counsel), for appellant.

      Jack Dashosh for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the determination of the commissioner reinstated for reasons stated in the dissenting opinion of Justice Fritz W. Alexander at the Appellate Division (91 AD2d 179, 185).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Perry Cox, as Executor of Mary Williams, Deceased, Plaintiff, v John V. Cordice, Jr., et al., Defendants, and Hillcrest General Hospital, Defendant and Third-Party Plaintiff-Respondent. Benjamin Gordon, Third-Party Defendant; Leonard B. Starr et al., Third-Party Defendants-Appellants.
    Argued September 20, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Howard R. Cohen for appellants.

      Norman Bard, David H. Sculnick and Beth J. Goldmacher for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice Francis T. Murphy, Jr., at the Appellate Division (90 AD2d 297).

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


text:
    Bella Taieb et al., Respondents, v Hilton Hotels Corporation, Appellant, et al., Defendant.
    Argued September 12, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Marvin V. Ausubel, Anthony E. Satula, Jr., Lesley E. Goldberg and Gary Alexander Stahl for appellant.

      Richard J. Goldman and David Jaroslawicz for respondents.
   OPINION OF THE COURT

Order reversed, with costs, plaintiffs’ motions for default judgment denied, defendant-appellant’s motion to compel plaintiffs to accept its answer granted, and question certified answered in the negative. The allegation that defendant did not personally receive notice of the summons in time to defend is not contested and defendant may have a meritorious defense (CPLR 317).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Respondent, v Alberto Cofresi, Miguel Cofresi, and Heriberto Torres, Appellants.
    Argued September 12, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Chester L. Mirsky for Miguel Cofresi, appellant.

      Franklyn Gould for Alberto Cofresi, appellant.

      Arthur M. Unterman for Heriberto Torres, appellant.

      Mario Merola, District Attorney (Alexandra Valicenti and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Having relied upon “automatic standing” at a time when the continued existence of that doctrine as a matter of State law was in serious question (see United States v Salvucci, 448 US 83; People v Hansen, 38 NY2d 1.7), and failed to offer at the suppression hearing proof of ownership or other reasonable expectation of privacy in the premises from which contraband was seized, defendants have not preserved for our review the search and seizure issues they now urge. Nor are they entitled to a second hearing on standing, having had the opportunity at the first hearing to litigate that question (see People v Havelka, 45 NY2d 636).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    In the Matter of the County of Erie et al., Respondents, v David Axelrod, as Commissioner of the New York State Department of Health et al., Appellants.
    Argued September 13, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael and Peter H. Schiff of counsel), for appellants.

      Eugene F. Pigott, Jr., County Attorney (<Judith Bapst-Bobrowski of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and judgment granted declaring the commissioner’s regulation 10 NYCRR 40.10 (f) valid.

Although section 608 of the Public Health Law speaks to rates of reimbursement, its only provision for reimbursement of general public health expenditures to a county which has a county or part-county department of health is for part of the expenditures by that department (subd 1, par [c]). By contrast, in paragraphs (d) through (i) it provides for reimbursement of health programs conducted by agencies named in those subdivisions or authorizes a county health department to designate an agency outside the department to carry out a specific program (e.g., lead poisoning control) and expressly authorizes partial reimbursement of expenditures of such extra-department agencies. The necessary implication is that expenditures through an agency outside the county department, such as the Erie County medical examiner’s office, not expressly authorized in section 608, are not reimbursable.

There is no interference with municipal home rule in the Legislature’s so providing, for the county is only required to subject its medical examiner’s office to the jurisdiction of its department of health if it wishes to obtain partial reimbursement of the expenditures of that office. Nor can it be said that the legislative policy thus established does not serve a legitimate governmental interest. As the Governor noted in his memorandum of approval of the predecessor provision of section 608, “It is designed to encourage the development of local health departments and the improvement of health services generally” (NY Legis Ann, 1946, p 188). In light of that purpose and the express language of section 608, the regulation in question is clearly within the State commissioner’s authority (cf. Public Health Law, § 605).

Nor does the fact that the medical examiner’s office relies upon laboratory services in its work make the laboratory functions of the office reimbursable under section 620 of the Public Health Law. Subdivision 1 of that section provides for partial reimbursement of expenditures for “laboratory services” where a laboratory is established pursuant to article 5 of the Public Health Law. The medical examiner’s office has not been shown to be so established. Nor is the office brought within section 620, as the county suggests, by the statement of purpose in section 570, or by the definition of “clinical laboratory” in subdivision 1 of section 571 of the Public Health Law as the Appellate Division suggests, although the medical examiner performs some of the same functions. Sections 570 and 571 are part of title V of article 5 of the Public Health Law. Section 580, also part of title V, expressly provides, in subdivision 2, that “This title shall be construed as regulating only activities which constitute patient services or services provided to health officers or their agents for sanitary purposes” (emphasis supplied). The activities of the medical examiner’s office have not been shown to fall exclusively within either such category.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, with costs, and judgment granted declaring the commissioner’s regulation 10 NYCRR 40.10 (f) valid in a memorandum.


text:
    In the Matter of Concourse Ophthalmology Associates, P. C., Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
    Argued September 14, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Norton L. Travis, Richard A. Dennett and Richard J. Weiss for appellant.

      Robert Abrams, Attorney-General (Steven A. Segall, Peter H. Schiff, Paul S. Shemin and Iris A. Steel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion (Matter of Di Martino [Buffalo Courier Express Co. Ross], 59 NY2d 638; Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691; Matter of Eastern Suffolk School of Music [Roberts], 91 AD2d 1123).

Petitioner suggests, nevertheless, that the touchstone of employment is control over results produced and means employed, citing Matter of 12 Cornelia St. (Ross) (56 NY2d 895), and that the record is devoid of evidence of control over results or means. The cases upon which it relies, however, involved services of a nature which permitted control over the details of the work and the results produced. Here we are concerned with the services of ophthalmologists, optometrists and a medical photographer, whose professional services do not lend themselves to such control. The board’s determination is, nonetheless, supported by substantial evidence of control over important aspects of the services performed other than results or means: the patients treated are those of petitioner; although the professionals work but part time at petitioner’s premises, the hours worked are for the most part regularly scheduled rather than occasional or sporadic; appointments are made by petitioner’s receptionist; with but occasional reduction made by the professional, the fees charged are fixed by petitioner; the services are rendered at petitioner’s premises and with the use of petitioner’s equipment and facilities; billings and collections are taken care of by petitioner; patients’ records are kept and insurance and Medicare forms are prepared by petitioner’s staff. Those factors provide a sufficient evidentiary basis for the board’s determination that the ophthalmologists, optometrists and medical photographer whose services are in question are employees rather than independent contractors (Matter of Villa Maria Inst. of Music [Ross], supra; Matter of Eastern Suffolk School of Music [Roberts], supra; Matter of Parsons Sanitarium [Corsi], 271 App Div 859; cf. Matter of Sullivan Co. [Miller], 289 NY 110).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Kathleen James, Individually and as Administratrix of the Estate of Danny R. Neff, Deceased, Appellant, v State of New York et al., Respondents.
    (Claim No. 64913.)
    Argued September 12, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Francis M. Letro and Paul William Beltz for appellant.

      Robert Abrams, Attorney-General {Peter J. Dooley and Peter H. Schiff of counsel), for respondent.

      Robert H. Silk for New York State Trial Lawyers Association, Inc., amicus curiae.

      David L. Hoffberg and Mary Louise Barhite for American Insurance Association and another, amici curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Reid S. Moule at the Appellate Division (90 AD2d 342).

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


text:
    In the Matter of Roberto Respeto, by His Attorney, Matthew J. Killion, Respondent, v Duncan McNab, as Justice of the Supreme Court, et al., Appellants.
    Argued September 15, 1983;
    decided October 18, 1983

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Steven R. Kartagener and Esther Furman of counsel), for appellants.

      Philip L. Weinstein and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Judgment affirmed, without costs, for reasons stated in the opinion by Justice E. Leo Milonas at the Appellate Division (90 AD2d 308).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Carla Humphrey, as Administratrix of the Estate of Daniel J. Humphrey, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 61839.)
    Argued September 12, 1983;
    decided October 18, 1983
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for appellant.

      Robert Miller and Gerald A. Keene for respondent.
   OPINION OF THE COURT

Memorandum.

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

Decedent died instantly in an unwitnessed one-vehicle accident on a dead-end segment of old Route 7 in Broome County just after midnight on November 2, 1977. The Court of Claims found that the State was negligent in failing to give adequate, unambiguous warnings of conditions on that highway, and that the State’s negligence contributed to decedent’s fatal accident. Liability was assigned 60% to the State and 40% to decedent. That judgment was affirmed on appeal.

In a case such as this, with affirmed findings of fact, our scope of review is narrow. This court is without power to review findings of fact if such findings are supported by evidence in the record.

There is ample evidence in the record that the State was negligent in several respects, including (1) failing to cover a “Route 7” sign after the Route 7 turnoff, (2) failing to remove the double line from the center of the dead-end segment on which decedent’s accident occurred, and (3) improperly constructing and marking the barrier at the end of that dead-end segment.

While there was evidence that decedent had a .17% blood alcohol level at the time of his death and that this alcohol impairment played a role in decedent’s failure to respond to warning signs, the Court of Claims found that the State’s negligence was a proximate cause of decedent’s accident, and this finding was affirmed by the Appellate Division.

In view of the lower burden of proof imposed on claimants in wrongful death cases (Noseworthy v City of New York, 298 NY 76) and the fact that the evidence as to both negligence and proximate cause must be viewed in a light favorable to claimant (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313), there is plainly evidence in this record to support the findings of the courts below. Findings of fact as to negligence and proximate cause were affirmed by the Appellate Division and supported by the record, and thus are conclusive in this court. (Le Roux v State of New York, 307 NY 397.)

The State’s argument that decedent’s blood alcohol level at the time of his accident is a supervening cause as a matter of law must be rejected. Claimant need not exclude all other possible causes of the accident. The fact that decedent’s ability to drive was impaired does not exonerate the State from liability on the ground that its negligence was not one of the proximate causes of the accident. (See Hulett v State of New York, 4 AD2d 806.)

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Marcia Kreitman et al., Respondents, v Uzy Einy, Doing Business as Gal Realty, Appellant.
    Submitted September 12, 1983;
    decided October 18, 1983
   Motion to vacate the Court of Appeals order of dismissal dated August 29, 1983 denied. [See 60 NY2d 612.]


text:
    Joanne S. et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, and Loris A. et al., Proposed Interveners-Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents.
    Submitted July 25, 1983;
    decided October 18, 1983
   Motion insofar as the proposed intervenors seek leave to appeal dismissed upon the ground that the portion of the order of the Appellate Division which affirmed the denial of the motion to intervene does not finally determine the action within the meaning of the Constitution; motion insofar as plaintiffs seek leave to appeal granted.


text:
    James C. Thrall, Jr., Respondent-Appellant, v City of Syracuse et al., Appellants-Respondents.
    Decided October 18, 1983
   Cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right (CPLR 5601).


text:
    Stanley Yalkowsky, Appellant, v Americo Napolitano et al., Respondents.
    Submitted August 8, 1983;
    decided October 18, 1983
   Motion for leave to appeal, from so much of the Appellate Division order as dismissed the appeal taken to it from the direction in the order of December 28,1982 for service of an amended complaint and as affirmed the denial of disqualification of attorney Neale, dismissed and, on the court’s own motion, appeal taken as of right from those portions of the Appellate Division order dismissed, without costs, each upon the ground that those portions of the Appellate Division order do not finally determine the action within the meaning of the Constitution. On the court’s own motion, appeals taken as of right from the remaining portions of the Appellate Division orders, affirming the dismissal of the judgment as against the Irving defendants and defendant Walsh, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved; and motion for leave to appeal from those remaining portions of the Appellate Division orders denied.


text:
    American Trucking Associations, Inc., et al., Appellants, v New York State Tax Commission et al., Respondents.
    Argued September 21, 1983;
    decided October 20, 1983

      APPEARANCES OF COUNSEL

      Ralph S. Snyder, Richard D. Birns of the Pennsylvania Bar, pro hac vice, and Herbert Burstein for appellants.

      Robert Abrams, Attorney-General (Francis V. Dow and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court, Albany County, should be affirmed for the reasons stated in the memorandum of former Justice De Forest C. Pitt at Special Term (120 Misc 2d 191). We would only add that the subject tax law empowers the tax commission to adjust the allocation formula with respect to a particular corporation to “fairly and equitably reflect gross earnings from all sources within this state” (Tax Law, § 184, subd 4, par [f]).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Judgment affirmed, with costs, in a memorandum.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v John Lane, Appellant.
    Decided October 20, 1983

      APPEARANCES OF COUNSEL

      Lee Cross for appellant.

      Mario Merola, District Attorney (AlanD. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial of burglary in the second degree (Penal Law, § 140.25), a charge arising out of his nighttime entry into a Bronx apartment. He was sentenced as a second felony offender. On this appeal, he alleges ineffective assistance of counsel based on different aspects of his attorney’s conduct both at trial and at sentencing. Chief among these was counsel’s failure to request a charge of the lesser included offense of criminal trespass and his failure to contest defendant’s predicate felony conviction.

In People v Baldi (54 NY2d 137), this court held that when reviewing claimed ineffective assistance of counsel, care should be taken “to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis” (id., at p 146). And “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement [US Const, 6th Arndt; NY Const, art I, § 6] will have been met” (id., at p 147).

Under this standard, it cannot be said that defendant was denied his constitutional right to effective assistance of counsel. The attorney’s failure to request a charge of the lesser included offense of criminal trespass resulted from an “all-or-nothing” defense tactic. Defendant, having taken the stand and admitted to performing acts constituting criminal trespass, asserted that he had consumed angel dust on the subway ride to the neighborhood where these events occurred and, moreover, that he had entered the apartment in an irrational attempt to evade the police. Indeed, the two occupants of the apartment partially corroborated defendant’s testimony, stating that he kept repeating that the police were after him. In view of this evidence, counsel could have reasonably concluded that, as a matter of trial tactics, it would be best to pursue legally accepted defenses of intoxication and lack of the requisite mental state to support a conviction of entering the apartment with intent to commit a crime therein (see Penal Law, §§ 140.25,15.25; 2 NY CJI, Penal Law, § 140.25, subd 2; see, also, People v Baldi, 54 NY2d, at p 151; cf. People v Bell, 48 NY2d 933). Moreover, counsel adequately explained the essence of the lack of intent defense in his summation.

Nor can it be said that defendant was denied effective assistance because counsel failed to challenge defendant’s status as a second felony offender, notwithstanding that the prior felony had a serious impact on defendant’s sentencing (see Penal Law, § 70.06). A review of the two grounds that defendant now contends counsel should have raised to challenge the validity of the underlying offense indicates that their assertion would have been futile.

Defendant first argues that the sentencing court in the prior adjudication promised to extend him youthful offender status in exchange for his guilty plea. Such a promise would have had important repercussions in sentencing in the present conviction inasmuch as a youthful offender adjudication may not be counted as a conviction for purposes of second offender status (see CPL 720.35, subd 1). Contrary to defendant’s assertion, however, a review of the record reveals that the court had not extended to defendant an absolute promise that he would receive youthful offender status.

Defendant also contends that counsel should have contested the prior felony conviction on the ground that defendant had only been advised at the plea allocution that he was waiving the right to a trial, rather than the right to a jury trial (see Boykin v Alabama, 395 US 238, 243). On this record, however, counsel reasonably could have concluded that no prejudice resulted to his client at the plea allocution (see People v Nixon, 21 NY2d 338, 355).

Defendant’s other arguments have been examined and found to be without merit.

Meyer, J.

(concurring). I concur in the result, but only

because there has been no proceeding under CPL 440.10 to develop what defendant’s trial counsel’s reasoning was and whether he had obtained defendant’s concurrence in the strategy after advising him of the risks, if in fact a strategic decision was made to “go for broke” (see People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852).

The majority memorandum fails to note that prior to trial defendant’s attorney had arranged for defendant to plead guilty to a class D felony, on which, as a predicate felon, defendant would have received at least a 2- to 4-year sentence. That plea offer strongly suggests that the attorney placed little faith in the possibility of acquittal on the basis of the lack of intent defense.

Moreover, bearing in mind that ihe maximum possible sentence for trespass is one year and that defendant had already served four months at the time of trial, the gross gamble involved (with time off for good behavior defendant, if convicted of criminal trespass, would spend but four months more in jail, as compared with the much heavier sentence, mandated by his prior conviction, if convicted of the class C felony on which he was tried) is all but conclusive of the attorney’s “failure to diligently protect his client’s interests” (People v Claudio, 59 NY2d 556, 563).

If, however, defendant was informed that counsel intended to follow such a strategy and of the risks and accepted it nevertheless, he would not be entitled to a new trial. There having been no hearing to explore these matters, I agree that there must be an affirmance.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer concurs in result in a separate concurring memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.