text:
    Gerber’s Fast Food Service, Ltd., Appellant, and Broadview Capital Corp., Respondent, et al., Plaintiffs, v S & E Realty Co., Respondent.
    Decided February 11, 1982

      APPEARANCES OF COUNSEL

      Reuben R. Kaufman for appellant.

      Steven D. Dreyer for plaintiff-respondent.

      Robert M. Calica for defendant-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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (83 AD2d 602).

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Enrique Suarez, Appellant.
    Argued January 5, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Marshall Nadan for appellant.

      Michael Kavanaugh, District Attorney (Susan Shaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that his rights under CPL 30.30 were violated was forfeited when he entered his plea of guilty (People v Friscia, 51 NY2d 845). In addition, and for the reasons stated by the Appellate Division, we find there was no violation of defendant’s constitutional right to a speedy trial (see People v Taranovich, 37 NY2d 442).

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

Order affirmed.


text:
    L. B. Smith, Inc., Appellant, v Bankers Trust Company of Western New York, Respondent, et al., Defendants.
    Argued January 14, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Fred G. Aten, Jr., for appellant.

      Robert J. Pearl and Ruth Kennedy-Daise for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (80 AD2d 496).

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


text:
    David Barnes et al., Appellants, v Bernard Gould et al., Respondents.
    Decided February 11, 1982

      APPEARANCES OF COUNSEL

      Solomon Z. Ferziger for appellants.

      Alonzo J. Drummond 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (83 AD2d 900).

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


text:
    The People of the State of New York, Appellant, v Joseph Smith, Respondent.
    Argued January 11, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (.Beth S. Lasky of counsel), for appellant.

      Barry D. Leiwant and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts.

The role of independent proof to meet the requirements for corroboration under CPL 60.22 (subd 1) is “to connect the defendant with the commission of the crime, not to prove he committed it” (People v Hudson, 51 NY2d 233, 238). For this purpose, matters which in themselves may be of seeming indifference may be “so harmonized ‘ “with the accomplice’s narrative as to have a tendency to furnish the necessary connection between the defendant and the crime” ’ (People v Daniels, 37 NY2d 624, 629)” (People v Cunningham, 48 NY2d 938, 940).

These principles in mind, we note that the independent witness Adams, who knew the defendant all her life, testified that, on the night of the homicide, upon looking in the direction from which she heard the shot, she at once saw “two guys [bending] over a man” and a third man walk away from where the body of the victim was lying. She also testified that there was then no one else around the body. She further testified that, without ever having looked away from the scene of the crime, she next noticed the men, including the third man, return and then recognized the latter as the defendant.

On this testimony, the trial court charged the jury, without exception: “[I]f you believe [Adams’] testimony tends to connect the defendant with the commission of the crime you would be justified in finding the defendant guilty. If you do not believe her, if you disregard her testimony, you must acquit. If you do not believe her testimony tends to connect the defendant with the commission of the crime, you must acquit”. On this charge, and taking' the testimony of Adams most favorably to the People, as we must at this stage in view of the verdict of the jury (People v Pena, 50 NY2d 400, 407), it cannot be said that the corroboration was insufficient as a matter of law.

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

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


text:
    Lawrence Henderson, Doing Business as Village Tavern, Appellant, v Aetna Casualty and Surety Company, Respondent.
    Argued January 12, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Duncan S. Mac Affer for appellant.

      Randall J. Ezick and Dianne Bresee Mayberger for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff cites no provision of the fire insurance policy to call upon Aetna to indemnify or defend him against suit or claim, including, of course, one in the nature of Rezey’s counterclaim. The liability policy, also issued to plaintiff by Aetna, is not at issue as plaintiff did not assert any rights under it in his complaint:

As to plaintiff’s theory that Aetna had no right to sue in his name, plaintiff, by his amended complaint, conceded that defendant “chose to commence this action in the name of the plaintiff insured as was its right under the terms of the policy” (emphasis added). The defendant therefore cannot be faulted because Rezey elected to interpose his counterclaim. In sum, Aetna, in bringing the suit in plaintiff’s name, did no more than was authorized.

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

Order affirmed.


text:
    In the Matter of the Arbitration between Horseheads Central School District, Respondent, and Horseheads Teachers’ Association, Appellant.
    Argued January 13, 1982;
    decided February 11, 1982

      APPEARANCES OF COUNSEL

      Gunter Dully, Bernard F. Ashe and Rocco A. Solimando for appellant.

      James F. Young for respondent.
   OPINION OF THE COURT

Order reversed, with costs, motion for stay of arbitration denied and the parties directed to proceed to arbitration on the association’s grievance only, for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (81 AD2d 954, 955).

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


text:
    Board of Education of Cattaraugus Central School, Appellant, v Cattaraugus Teacher’s Association, Respondent.
    Decided February 11, 1982

      APPEARANCES OF COUNSEL

      Peter K. Hulburt for appellant.

      Bernard F. Ashe and Gunter Dully 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 [b]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    Anthony J. Condurso et al., Appellants, v Paul J. Thumsuden et al., Respondents.
    Decided February 11, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from and the “judgment” entered thereon do not finally determine the action within the meaning' of the Constitution.


text:
    Nicole D’Orsai, Appellant, v Reese Motors Corp., Respondent.
    Decided February 11, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal does not lie.


text:
    Fire Burglary Instruments, Inc., et al., Respondents, v Jean M. Piccione et al., as Coexecutors of Nicholas A. Piccione, Deceased, Appellants.
    Decided February 11, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 39, pp 157-158).


text:
    Perin Gobhai, Appellant, v KLM Royal Dutch Airlines, Respondent.
    Submitted February 8, 1982;
    decided February 11, 1982
   Motion to dismiss the appeal denied.


text:
    The People of the State of New York, Respondent, v Richard Koziuk, Appellant.
    Submitted January 25, 1982;
    decided February 11, 1982
   Motion for extension of time and continuation of stay granted and stay continued until determination of the appeal.


text:
    Outdoor Amusement Business Association et al., Appellants, v State Tax Commission, Respondent.
    Submitted January 4, 1982;
    decided February 11, 1982
   . 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, and a separate appeal does not lie from the nonfinal order (see CPLR 5501, subd [a], par 1; Matter of Aho, 39 NY2d 241, 248).


text:
    The People of the State of New York, Appellant, v Paul Dordal, Respondent.
    Argued January 4, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Seruino of counsel), for appellant.

      Gerald L. Shargel for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for a review of the facts. The Appellate Division erred in concluding that the evidence was insufficient as a matter of law to support the conviction for criminal possession and criminal sale of a controlled substance.

The evidence at trial showed that Peter Liaskas, by prearrangement, met an undercover officer at a hotel in Tarry town to effect the sale of a quantity of cocaine. Liaskas advised the officer that the drugs were on the way. After making a brief telephone call, Liaskas exited the hotel empty-handed and met defendant and Peter Waring. After speaking briefly, the trio drove in defendant’s car for approximately 10 minutes and then returned to the hotel. Liaskas exited the car alone carrying a black pocketbook. After parking the car, defendant and Waring entered the hotel lobby. Liaskas, meanwhile, proceeded directly to the hotel room where he produced cocaine from the pocketbook, made the transfer for cash, and was arrested. Unaware of the arrest, Waring phoned the room with instructions for Liaskas to finish and leave quickly. Shortly thereafter, defendant and Waring, sitting together in the lobby, were arrested. A loaded gun was found on each.

Under all of the circumstances, the trier of fact reasonably could infer defendant’s knowledge of and participation in the drug transaction. The People showed that Liaskas came into possession of the drugs during the ride in defendant’s car, that defendant was armed, and that defendant was with Waring from the time the pair first arrived at the hotel until their arrest. That competing inferences could be drawn from the evidence does not defeat the People’s prima facie case (see People v Barnes, 50 NY2d 375, 381; People v Gerard, 50 NY2d 392, 397).

Defendant also assigns error to the prosecutor’s appeal in summation to juror sentiment against crime brought to the local community by outsiders. Such an appeal to bias has no place in a criminal trial, and normally should be promptly corrected by curative instructions. However, defendant failed to make a timely protest to the comments and thus failed to preserve the issue for review.

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

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


text:
    Lynn D. Beutel, Appellant, v William C. Beutel, Respondent.
    Argued January 6, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      Marvin H. Mitchelson, Roy M. Cohn, John A. Kiser and Louis Biancone for appellant.

      Alan M. Gelb and Shepard A. Feder green for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Plaintiff’s pleading and the papers submitted in its support cannot be said to set forth a legal basis for finding that defendant procured the separation agreement by duress. As alleged in the complaint, plaintiff was under emotional strain during the several months that the agreement was being drafted. During this entire period, however, plaintiff was represented by an attorney who undertook the actual negotiations. Implicitly, plaintiff’s attorney also approved the terms of the agreement and there is no contrary showing. Plaintiff signed the agreement at her attorney’s office, in her attorney’s presence, and several days before defendant signed the agreement at his attorney’s office. Even accepting plaintiff’s allegation that defendant persistently telephoned her to urge that she sign the agreement, the circumstances described in the complaint do not constitute duress.

Nor does the complaint state a cause of action to rescind on the ground of incapacity to contract. Even if the complaint could be read to allege incapacity, nothing in the complaint or the affidavits suggests that plaintiff’s claimed incapacity continued through the two years during which the contract was effective and fully performed by defendant, and the benefits received by plaintiff. Under such circumstances, plaintiff must be deemed to have ratified the agreement (cf. Sternlieb v Normandie Nat. Securities Corp., 263 NY 245, 247-248; Smith v Ryan, 191 NY 452, 458; Soviero Bros. Contr. Corp. v City of New York, 286 App Div 435, affd 2 NY2d 924).

In light of the disposition of the appeal on the ground of the insufficiency of the pleadings, no opinion is expressed as to the other issues raised by the parties.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of the Arbitration between Nyack Board of Education, Appellant, and Nyack Teachers Association, Respondent.
    Decided February 16, 1982

      APPEARANCES OF COUNSEL

      Kevin J. Plunkett for appellant.

      James R. Sandner and Janis Levart Barquist 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 [bj), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division. Whether, as a matter of substantive law, the determination of the career increment committee is final and binding in this instance is an issue which may be raised before the arbitrator.

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


text:
    In the Matter of the City of New York, Respondent, v James H. Tully et al., Constituting the State Tax Commission, Respondents, and 77 West 55th Street Associates, Appellant.
    Argued January 11, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      Martin B. Cowan and Wayne R. Lehrhaupt for appellant.

      Frederick A. 0. Schwarz, Jr., Corporation Counsel {Arnold Fox and GaleZareko of counsel), for City of New York, respondent.

      Robert Abrams,- Attorney-General {Francis V. Dow and Shirley Adelson Siegel of counsel), for State Tax Commission, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission is reinstated.

We find no error in the determination of the State Tax Commission that the mortgage agreement in question was a supplemental mortgage within the purview of section 255 of the Tax Law and did not create a new or further indebtedness or obligation. The commission found that the agreement did not change the creditor, the maturity or interest rate, but instead it changed only the collateral. Hence, no additional mortgage tax was due upon the recording of this agreement. It is significant that the release of the leasehold from the lien did not occur before the fee was added to the security for the principal indebtedness. Additionally, we note that respondent taxpayer is not entitled to interest on its refund from the time of payment of the tax (Matter of Brodsky v Murphy, 25 NY2d 518).

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

Judgment reversed, etc.


text:
    Chloe Premo, Appellant, v Donald Cornell et al., Respondents.
    Decided Feburary 16, 1982

      APPEARANCES OF COUNSEL

      Robert G. Main, Jr., for appellant.

      James P. Bessette for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rule of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting defendants’ motion to dismiss the action pursuant to CPLR 3012 (subd [b]). Indeed, as we held in Barasch v Micucci (49 NY2d 594, 600-601), it would have been an abuse of discretion to have failed to dismiss.

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


text:
    Beatrice Skolnik, Appellant, v Cornelius C. Rose, Jr., et al., Respondents.
    Argued January 11, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      Edward L. Skolnik for appellant.

      Paul K. Milmed, Dennis J. Block, M. Diane Jasinski, Jerome T. Orans, RobertE. Meshel and PaulE. Summit for Cornelius C. Rose and others, respondents.

      Ralph W. Lawrence for Margaret C. Kappesser, as executrix of George P. Kappesser, deceased, respondent.

      Robert E. Anderson and Jerome Lipper for North American Mortgage Investors, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly held that the complaint should be dismissed for failure to give the shareholders notice of the suit as is required by the laws of Massachusetts. In this case, as in Greenspun v Lindley (36 NY2d 473), the trust agreement expressly provides that the laws of Massachusetts, the State where the trust was created, should be controlling. Plaintiff’s contention that the laws of New York should be applicable is based on allegations that the trust had significant contacts with the State in that it “acquired its original core of shareholders” in 1968 by entering a reorganization agreement with a corporation based in New York, that the trust still has a significant number of shareholders in this State and does a significant amount of business here. Plaintiff claims that this distinguishes the case from Greenspun, where there was no proof of any “significant association or cluster of significant contacts” with this State. She does not contend, and indeed, could not on this record, that the party’s express choice of the laws of Massachusetts should not be enforced because the trust does not have any contacts with that State. In our view the factors alleged do not invoke any overriding policy consideration under the laws of New York and do not provide a compelling reason or justification for disregarding the express agreement of the parties that their rights under the trust should be governed by the laws of Massachusetts, the State where the trust was founded.

In addition we note that the plaintiff failed to establish a sufficient factual predicate to assert personal jurisdiction over the defendant Prickett.

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

Order affirmed, with costs, in a memorandum.


author: Fuchsberg, J.

text:
    Bruce Green, an Infant, by His Mother and Natural Guardian, Fannie Green, et al., Appellants, v New York City Housing Authority, Defendant-Respondent and Third-Party Plaintiff-Respondent. Metaloc Corp., Third-Party Defendant-Respondent.
    Argued January 14, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      Anthony Gentile, Lewis I. Wolf and Philip M. Damashek for appellants.

      William F. Larkin for defendant-respondent.

      Thomas F. Dunn for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (82 AD2d 780).

Concur: Judges Jasen, Gabrielli, Jones and Wachtler. Judge Fuchsberg dissents and votes to reverse in an opinion in which Chief Judge Cooke and Judge Meyer concur.

Fuchsberg, J.

(dissenting). The extraordinary process of legal thought by which it is possible to say that the plaintiffs failed to make out a cause of action is difficult to discern.

The prima facie proof, almost entirely undisputed, tells its own tale. Plaintiff mother and her four young children, of whom the then one- and a half-year-old infant plaintiff was the youngest, dwelled in a tenement rented from the defendant New York City Housing Authority. When this family moved into the apartment, it found that defective hinges had caused an eight-foot high bedroom door to become loose and, after the passage of some time, to fall from the doorway altogether. Upon the mother observing its precarious state, she promptly called upon the defendant to meet its duty to safely rehang the door (Multiple Dwelling Law, § 78). Between her initial report of the condition and the day it first came completely loose, she repeated her request about nine times. The defendant nevertheless, having failed to respond to these entreaties, over an additional period of 17 months, on at least 10 more occasions she reminded the rental and district office of the housing authority of the unremedied condition of this now loose-lying, large and cumbersome door. But to no avail.

Instead of making the simple repair that would have removed the potential danger flowing from the obstruction of this small and crowded apartment thus visited on the occupants, the defendant’s representative did no more than to specifically direct the mother, presumably while she was to wait for the authority to get around to setting the door back in place, to put it “under the bed or behind, stand it beside the wall [the alternative she was following at the time of the accident] or behind the bed”. Moreover, when, finding that none of these kept the door from being a hard-to-avoid encumbrance, she threatened to have it thrown out of the apartment, the defendant’s supervisor advised her that, if she did so, she would be held responsible. All this led, straight as an arrow, to the day when the leaning door having toppled onto the toddling infant while he was at play in his home, he landed in a hospital with a damaged brain.

Consequently, whether it was foreseeable, under all the circumstances, that the defendant’s conduct could bring injury to a child was all but a classical question of fact (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Parvi v City of Kingston, 41 NY2d 553, 560; Restatement, Torts 2d, §§ 443, 449). It follows that the Trial Judge was eminently correct in submitting it to the jury. In addition to answering it implicitly in the affirmative by its verdict for the plaintiffs, that body, in response to a special interrogatory posed at the behest of the defendant itself, expressly found foreseeability.

This should have been decisive. For the issue came well within the jurisprudential thrust of our democratic societal credo that questions of this nature, which so often abound in the “reasonable man” world of tort litigation, are best decided by a lay jury (see Havas v Victory Paper Stock Co., 49 NY2d 381, 388; Pound, Introduction to the Philosophy of Law [rev ed], p 71; Fleming, Torts [3d ed], p 271; Weiner, Civil Jury Trial and the Law-Fact Distinction, 54 Cal L Rev 1867, 1887-1897).

It follows that the Appellate Division’s reliance on our decision in Martinez v Lazaroff (48 NY2d 819) was not pertinent. There, after lack of repair of a tenement house boiler had caused it to stop operating, the plaintiff sought to recover for injuries sustained in an accident that occurred during the course of the tenant’s utilization of his own alternative method of producing hot water. Accordingly, the majority in Martinez was able to take the position, first, that the injuries emanated from a completely independent intervening source and, second, that only a lack of water, not personal injury, could have been foreseen from the boiler’s shutdown. Whatever the merits of these arguments (but see Martinez v Lazaroff, supra, at p 820 et seq. [Meyer, J., dissenting]), the present plaintiffs’ case rests on neither such contention. Here, we at all times are dealing with the same object, the unhung door, and, so far as foreseeability of s consequences is concerned, that the child might be injured would have been an unsurprising result of the toppling whether it happened at the point in time when the door was still hanging loose in the doorway or later when, as defendant had directed, it remained unbraced in its leaning position against the wall.

For all these reasons, the order of the Appellate Division should be reversed and the case remitted for consideration of the facts.

Order affirmed, etc.

      . There were two plaintiffs, one the child for personal injuries, the other the mother for special damages and loss of services.

      . The only other case on which the Appellate Division relied, Rivera v City of New York (11 NY2d 856) is, on its “Rube Goldberg” facts, no more in point. In Rivera, a bathtub would tend to fill with hot water because of a plumbing defect. But the water was no more than the medium into which the plaintiff there was plunged by his own disparate act. The intervention — standing on the curved edge of the bathtub while wearing wet boots in the dark at 11:30 p.m. in order to reach for a ceiling light cord — bears no relationship to the simple, direct and continuing neglect of the door in the case before us now.


text:
    In the Matter of Aetna Casualty & Surety Company, Respondent, v Catalino Gonzalez, Appellant.
    Decided February 16, 1982

      APPEARANCES OF COUNSEL

      Stuart R. Kramer for appellant.

      J. Robert Morris and Sue C. Jacobs 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    The People of the State of New York, Respondent, v Felix Castro, Appellant.
    Argued January 5, 1982;
    decided February 16, 1982

      APPEARANCES OF COUNSEL

      John Mage, Barry C. Scheck and Lawrence A. Vogelman for appellant.

      Michael Kavanagh, District Attorney (Susan Shaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

We agree that there was no violation of defendant’s right to a speedy trial, as to the constitutional right for the reasons stated by the Appellate Division and as to the statutory right (CPL 30.30, subd 4, par [g]) because the efforts of the District Attorney to obtain assignment of visiting Judges constituted a sufficient indication under the peculiar circumstances of this case that the People were ready for trial, whether the resident County Court Judge be deemed disqualified or not.

It was, however, error for the Trial Judge in a trial involving charges of riot in the first and second degrees and unlawful imprisonment in the first and second degrees to read section 20.00 of the Penal Law to the jury but refuse to instruct them as required by section 20.15 of that law that it is the mental state and the accountability for an aggravating fact or circumstance of each defendant which determines the degree of the offense of which that defendant may be found guilty. Moreover, the error was compounded by the Trial Judge’s response to the jury’s inquiry whether defendant had to be a direct participant in inflicting personal injury to be found guilty of riot in the first degree. His response was to reread section 20.00 and to refuse once again to charge as section 20.15 requires (cf. People v Ciaccio, 47 NY2d 431, 436; see Bollenbach v United States, 326 US 607, 612).

We do not reach the remaining claims of error in view of the new trial ordered.

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

Order reversed, etc.


text:
    Harold Blank et al., Respondents, v Norman Rosenthal et al., Appellants, et al., Defendants.
    Submitted January 18, 1982;
    decided February 16, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements for opposing affidavit only.

Judge Wachtler taking no part.


text:
    Edmund H. Casse et al., Appellants, v Harlem Paper Products, Inc., Respondent.
    Submitted January 15, 1982;
    decided February 16, 1982
   Motion to dismiss the appeals herein granted and the appeals dismissed, with costs and $20 costs of motion, upon the grounds that (1) the appeal from the December 17, 1981 judgment does not lie because the November 2, 1981 corrected Appellate Division order sought to be reviewed does not modify in a “respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; subd [d]); (2) no appeal lies from the superseded November 2,1981 order of the Appellate Division, and (3) a separate appeal does not lie from the conditional November 2, 1981 corrected Appellate Division order.


text:
    Max Farash, as Agent for HVM Associates, II, Appellant, v James E. Smith, as Assessor of the Town of Perinton, Respondent, and Fairport Central School District, Intervenor-Respondent. (And Another Proceeding.)
    Decided February 16, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the consolidated proceeding within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).

Judge Gabrielli taking no part.


text:
    Barnett Guthartz, Appellant, v City of New York et al., Respondents.
    Decided February 16, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; see Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 43).

Judge Meyer taking no part.


text:
    The People of the State of New York, Respondent, v John Hill, Also Known as Dacajeweiah, Appellant.
    Submitted February 1, 1982;
    decided February 16, 1982
   Motion for reconsideration of motion to vacate the Court of Appeals order of dismissal dated June 6, 1980 denied. [See 55 NY2d 800.]

Judge Meyer taking no part.


text:
    Edward H. Phillips, Jr., Appellant, v City of Syracuse et al., Respondents.
    (Appeal No. 6.)
    (And Another Appeal — Appeal No. 7.)
    Decided February 16, 1982
   On the court’s own motion, decision and order in Motion No. 1358 A and B dated February 11,1982 withdrawn and the following substituted: “A and B: Motions for leave to appeal dismissed, with one bill of $20 costs and necessary reproduction disbursements, upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution.” [See 55 NY2d 607.]


text:
    The People of the State of New York, Respondent, v Ricardo R. Rivera, Appellant.
    Argued January 18, 1982;
    decided February 16, 1982
   Motion to vacate the Court of Appeals order of dismissal dated July 9, 1981 granted. [See 54 NY2d 754.]


text:
    William Strumlauf, Appellant, v Sandine Originals, Inc., et al., Respondents.
    Argued January 14, 1982;
    decided February 18, 1982

      APPEARANCES OF COUNSEL

      James Dempsey, L. Kevin Sheridan and Thomas R. Newman for appellant.

      Arthur L. Liman and Stephen D.D. Hamilton for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 912).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in an opinion in which Judge Jones concurs.

Fuchsberg, J.

(dissenting). Though the written proof was supplemented by oral testimony, the experienced Trial Judge, who had the best opportunity to evaluate the credibility and the accuracy of each of the principal witnesses on both sides, was “impressed by the integrity” of each of them. At the same time, he was conscious that each was an interested witness and that all were relying on a memory affected by the passage of seven years. The inconclusiveness of the picture so presented to an appellate reviewer lends especial import to the language of the writings submitted at trial, all the more so since it is almost hornbook law that the intent of the parties to a written agreement is to be found primarily in their “expressed words” rather than their “subjective intent” (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399; 4 Williston, Contracts [3d ed], § 600; see, generally, Curtis, A Better Theory of Legal Interpretation, in Jurisprudence in Action, p 131 [Baker, Voorhis]). In this connection, it seems to me that the ambiguity originally found by the Appellate Division with regard to the “rebate of taxes * * * applicable to the period during which [Bill] was a stockholder” provision is better resolved by juxtaposing this expression to the one which it in effect simultaneously superseded when the pre-existing agreement was canceled. The elimination of the latter’s reference to “carry-over or carry-back benefits” therefore seems more persuasive on intent than does the testimony of the expert on accounting practices, who, after all, played no role in the drafting of the agreement.

Moreover, to the extent that “subjective intent” could be said to have been pertinent, it is noteworthy that the Trial Judge, who heard and observed the demeanor of the plaintiff, credited the testimony that he was advised in advance by the attorney who represented all the parties in the making of the agreement that, as drawn, it accorded him the right to carry-backs and that this advice was repeated in the presence of the other parties at the time the agree: ment itself was signed. The other signatories’ countervailing denial of any recollection of this discussion did not provide justification for the Appellate Division’s categorical rejection of the plaintiff’s testimony.

On balance then, and without applying the missing witness rule, I would reverse the order of the Appellate Division and reinstate the judgment at Trial Term.

Order affirmed, etc.


text:
    Bay Terrace Cooperative Section IV, Inc., Appellant, v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, Respondent.
    Argued January 15, 1982;
    decided February 18, 1982

      APPEARANCES OF COUNSEL

      Lawrence B. Lame and Arnold Eiger for appellant.

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz, Shirley Adelson Siegel and Joseph F. Gibbons of counsel), for appellant.
   OPINION OF THE COURT

Memoranda.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for the exercise of its discretion.

The Appellate Division erred in determining the application to file a late claim as a matter of law (cf. Cedano v City of New York, 51 NY2d 896). Contrary to that court’s view, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief. Subdivision 6 of section 10 of the Court of Claims Act permits late filing in the exercise of the court’s discretion after considering certain enumerated factors, expressly stated to be “among other factors”. Nothing in the statute makes the presence or absence of any one factor determinative.

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

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


text:
    In the Matter of James A. Thompkins, Appellant, v Waterfront Commission of New York Harbor et al., Respondents.
    Decided February 18, 1982

      APPEARANCES OF COUNSEL

      Ira Salzman for appellant.

      David Greenfield and Robert A. Pin 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division.

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


text:
    In the Matter of James M. Palozzolo, Appellant, v S. Michael Nadel, as Personnel Director of the City of New York, et al., Respondents.
    Decided February 18, 1982

      APPEARANCES OF COUNSEL

      Eli Kramer for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel 0Carol Polis 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (83 AD2d 539).

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


author: Jones, J.

text:
    Owen Purcell, Respondent, v John F. Doherty et al., Appellants, et al., Defendants. (And a Third-Party Action.)
    Argued January 13, 1982;
    decided February 18, 1982

      APPEARANCES OF COUNSEL

      Douglas A. Boeckmann for John F. Doherty and another, appellants.

      Louis G. Adolfsen, L. Kevin Sheridan and J. Robert Morris for Patricia Delgado Bokhari and another, appellants.

      Alfred S. Julien and William D. Fireman for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this pre-1975 negligence action in which any negligence on the part of the plaintiff would have constituted a total bar to any recovery, appellants’ main contention is that the trial court erred in refusing to instruct the jury in that part of its charge and recharge regarding the effect of contributory negligence. The appellants requested that the jury be charged as follows: “The law does not permit you to weigh the degree of fault of plaintiff and defendant but requires that if you find that plaintiff was guilty of any negligence your verdict be for defendant, even though you find that defendant was also negligent.” The trial court refused the requested charge and instead instructed the jury that:

“The plaintiff was required to exercise reasonable care for his own safety. That is the same degree of care that a reasonably prudent person would have exercised for his own safety under the same circumstances.”

“If you find that all of these defendants or some of them were negligent and that the negligence of each was a substantial factor in causing the plaintiff’s injuries and [that] you find that the plaintiff was free * * * from contributing to his injuries * * * defendants will be liable”.

Although the requested charge would have been preferable, we nonetheless conclude that it cannot be said as a matter of law that the omission constitutes reversible error in light of the clear import of the charge given by the trial court.

Jones, J.

(dissenting). In our view it was error on the part of the trial court repeatedly to refuse defendants’ requests for what was concededly á proper charge, the substance of which was never covered in the court’s instructions to the jury. Accordingly, there should be a new trial.

The trial court properly instructed the jury as to what would constitute negligence on the part of defendants, what would constitute contributory negligence on the part of plaintiff, and then what would be the consequence, as to the verdict to be rendered, of a finding that defendants or some of them were negligent but that plaintiff was free from negligence. There was, however, no counterpart charge as to what verdict should be rendered if the jury were to find defendants negligent and also find plaintiff contributorily negligent.

An exception was taken and a request made that the court give the recommended charge set forth in Pattern Jury Instructions 2:35, as it now appears at pages 44-45 of the 1981 supplement, which explicitly describes the verdict to be rendered if both defendant and plaintiff were found to-be negligent. The court refused to give this charge on the ground that it “would only create confusion in the minds of the jury”.

After deliberating, the jury returned with a request that the court clarify the law regarding contributory negligence. The court then repeated, verbatim, its initial charge as to what would constitute contributory negligence, again without any instruction as to what verdict should be rendered in the event the jury found plaintiff contributorily negligent. Again exception was taken, based on PJI 2:35, that the court had failed to charge with respect to the consequence of a finding of contributory negligence in rendering the verdict. The specific request that the supplemental charge include the sentence from the Pattern Instruction, “If you find that plaintiff was negligent and that his negligence caused or contributed in any material way to the happening of the incident, he may not recover, whether his negligence was great or slight”, was also denied.

The oft-repeated statement that a litigant is entitled only to a charge which fairly and accurately instructs the jury as to the applicable principles of law and not to a perfect charge or one that is a model of precision, should be inapplicable where, as here, the charge as given fails to address the application of the legal principles to the obligation of the jury in fashioning its verdict and the litigant requests a further instruction explicitly addressed to that subject which is unquestionably correct.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur in memorandum; Judge Jones dissents and votes to reverse and grant a new trial in an opinion in which Judges Jasen and Meyer concur.

Order affirmed.


text:
    In the Matter of Andrew Chalachan et al., Appellants, v City of Binghamton et al., Respondents.
    Argued January 15, 1982;
    decided February 18, 1982
    APPEARANCES OF COUNSEL

      Chandler Y. Keller and Theodore J. Mlynarski, Jr., for appellants.

      Kenneth Auerbach, Corporation Counsel, for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners, formerly firemen employed by respondent City of Binghamton, became disabled as a result of injuries sustained in the performance of their duties and thus were receiving their regular salary or wages pursuant to section 207-a. of the General Municipal Law. They commenced the instant article 78 proceeding when the city rejected their demands for payment of 1979 unused vacation time, which claims were grounded upon the collective bargaining agreement between the city and its firemen and not on any theory of statutory entitlement under section 207-a.

The collective bargaining agreement in question is entirely silent regarding the status of disabled firemen as employees of the city. Their continued status as employees even after disability has occurred is strictly a matter of statutory right. The collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement, and petitioners’ argument that they are entitled to unused vacation benefits by reason of the absence of language specifically excluding their class from vacation benefits is thus without merit.

Although petitioners make no claim that unused vacation benefits are a matter of statutory entitlement, we note in passing that the argument would be unavailing in any event. The rights provided under section 207-a are expressly limited to “regular salary or wages”. Nor would it be appropriate to imply a right to vacation benefits under section 207-a since disabled firemen do not have to work at all, and to pay them for unused vacation time would unfairly discriminate against employees actually working (see Phaneuf v City of Plattsburgh, 84 Misc 2d 70, affd 50 AD2d 614, mot for lv to app dsmd 38 NY2d 1004).

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

Order affirmed, with costs, in a memorandum.


text:
    Board of Managers of Village House, Respondent, v Paris B. Frazier, Appellant, et al., Defendants.
    Decided February 18, 1982

      APPEARANCES OF COUNSEL

      Hal Meyerson for appellant.

      Eugene A. Wolkoff 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 [b]), order affirmed, with costs. The injunction was properly granted by Special Term upon a sufficient showing that defendant had violated the condominium by-laws and the prior order of that court. Additionally, plaintiff was entitled to summary judgment dismissing defendant’s counterclaims in view of defendant’s failure to raise sufficient evidentiary facts to defeat the motion. Finally, we agree that attorney’s fees were properly assessed in this action to enforce the condominium by-laws and, on the present record, it is not necessary for us to reach the further question as to the manner in which such award may be enforced.

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


text:
    Wade Lupe Construction Co., Inc., Respondent, v B & J Roofing Co., Inc., Appellant.
    Decided February 18, 1982

      APPEARANCES OF COUNSEL

      Daniel J. Smitas for appellant.

      Mary Anne Tommaney 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 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Syracuse United Neighbors, Respondent, v City of Syracuse et al., Appellants.
    Argued January 15, 1982;
    decided February 18, 1982
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 47).


text:
    In the Matter of Patrick D. Fusillo, Appellant, v Supreme Court of the County of Suffolk et al., Respondents.
    Submitted February 11, 1982;
    decided February 18, 1982
   Motion for leave to appeal denied. Motion for a stay of trial dismissed upon the ground that no appeal is pending in the Court of Appeals.


text:
    Francis X. Goehle, Jr., Individually and as Parent and Natural Guardian of John Goehle, an Infant, Appellant, v Town of Smithtown, Respondent.
    Argued February 8, 1982;
    decided February 23, 1982

      APPEARANCES OF COUNSEL

      Robert C. Minion for appellants.

      Marshall D. Sweetbaum for respondent.
   OPINION OF THE COURT

Memorandum.

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

A determination by the Appellate Division which reverses an order of Trial Term setting aside a jury verdict as against the weight of the credible evidence, although appealable, is beyond this, court’s power of review. In the posture in which this case comes before us, there must be an automatic affirmance. (Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Pfohl v Wipperman, 34 NY2d 597; Gutin v Mascali & Sons, 11 NY2d 97; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588.)

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

Order affirmed, with costs, in a memorandum.


text:
    Kitty A. Priebe, Also Known as Kitty A. Fox, Appellant, v John A. Priebe, Respondent.
    Argued February 10, 1982;
    decided February 23, 1982

      APPEARANCES OF COUNSEL

      Mark G. Hirschorn and Sharon S. Townsend for appellant.

      Leonard J. Klaif for respondent.
   OPINION OF THE COURT

Memorandum.

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

The parties sought, on the basis of cross motions, to modify the visitation provisions of their separation agreement which was incorporated into, but not merged with, the divorce decree terminating their marriage. It was within the discretion of the Appellate Division to determine whether the circumstances presented justified the requested modification. (Compare Dean v Dean, 79 AD2d 876, mot for lv to app den 52 NY2d 706, with Milici v Milici, 57 AD2d 946.) We cannot say, as a matter of law, that the determination of the Appellate Division which prohibited the mother from removing the children to any location which would interfere with the father’s visitation rights was an abuse of that court’s discretion. (Cf. Weiss v Weiss, 52 NY2d 170.)

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

Order affirmed, with costs, in a memorandum.


text:
    Tamar Ross, Respondent-Appellant, v Howard Ross et al., Appellants-Respondents.
    Decided February 23, 1982

      APPEARANCES OF COUNSEL

      Joel Sankel and Claudio B. Bergamasco for appellants-respondents.

      Alexander Potruch, Kenneth Koopersmith and Michael K. Feigenbaum for respondent-appellant.
   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 [b]): Plaintiff’s cross appeal dismissed, without costs, upon the ground that the cross appeal pursuant to CPLR 5601 (subd [d]) does not lie because the cross appellant is not a party aggrieved by the prior nonfinal order of the Appellate Division (CPLR 5511). Defendants’ appeal pursuant to CPLR 5601 (subd [a], par [ii]) dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution and a separate appeal does not lie (see Matter of Aho [Rhodes], 39 NY2d 241, 248). On defendants’ appeal, pursuant to CPLR 5601 (subd [d]), from the judgment of separation entered in Supreme Court, Queens County, judgment affirmed for the reasons stated in the memorandum at the Appellate Division.

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


text:
    New York Telephone Company, Respondent, v Jules V. Speciner, as Trustee in Bankruptcy of Marshall Construction Company, Inc., Appellant.
    Decided February 23, 1982

      APPEARANCES OF COUNSEL

      Julius L. Schapira for appellant.

      Stephen L. Ratner 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 [b]), order insofar as appealed from reversed, with costs, cross motion for a permanent stay denied, and motion to compel arbitration granted. A timely demand for arbitration was made by Marshall in February, 1972 well within the six-year Statute of Limitations and was judicially stayed until the condition precedent to arbitration was satisfied. The condition was met in November, 1973 after Marshall submitted its claim to the architect who failed to render a decision within 10 days. Any further questions as to undue delay or abandonment of the proceeding are for the arbitrator (see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1).

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


text:
    City of New York, Respondent, v State of New York, Appellant.
    (Claim No. 54853.)
    Decided February 23, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {.Dennis Hurley of counsel), for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Jerome C. Gilman 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 [b]), order affirmed, with costs. The State’s submission raised no factual issue as to whether the claim in question had been constructively rejected (cf. City of New York v State of New York, 40 NY2d 659).

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


text:
    In the Matter of Doherty’s New Dorp Tavern, Respondent, v New York State Liquor Authority et al., Appellants.
    Decided February 23, 1982

      APPEARANCES OF COUNSEL

      Robert Conciatori and Warren B. Pesetsky for appellants.

      Paul A. Lemole and Peter J. Napolitano 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 [b]), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (82 AD2d 858). The finding of the State Liquor Authority that the bouncer overreacted in forcibly ejecting a patron from the licensed premises, without more, is insufficient to sustain the charge. (See Matter of L.B.R. Enterprises v New York State Liq. Auth., 53 NY2d 714).

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


text:
    Carlos Sam, Appellant, v Beverly Sanders, As Assistant Commissioner of Special Services for Children, et al., Respondents, and New York State Department of Social Services, Intervenor-Respondent.
    Argued February 10, 1982;
    decided February 23, 1982

      APPEARANCES OF COUNSEL

      George Kannar and Marcia Robinson Lowry for appellant.

      Robert Abrams, Attorney-General {Robert J. Schack and Shirley Adelson Siegel of counsel), for New York State Department of Social Services, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for New York City Department of Social Services and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

On the record it cannot be said that the courts below abused their discretion under the statute (Social Services Law, § 372, subd 3) in limiting disclosure as they have. We note in particular that the denial of additional disclosure of matters relating to petitioner’s sisters was without prejudice to his right to reapply. In such a proceeding the petitioner, being the applicant, should bear the burden of convincing the court that disclosure would be “proper”, as the statute provides. It may be that in a particular case that burden should require petitioner to show that disclosure would not be detrimental to the best interests of the children affected. However, we see no basis for imposing this obligation in every case.

Finally, insofar as the petitioner’s application could affect the welfare of his sisters, who still are infants, it would seem appropriate for the court to appoint a guardian to determine and represent their interests. This would be preferable to having the agency, which is essentially a . stakeholder, assume an adversary role on the theory that nondisclosure would always be in the best interests of children generally.

We have considered the petitioner’s other arguments and find them to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    June Hart et al., Appellants, v Kenneth Sullivan et al., Individually and as Managerial Employees of P & C Food Markets, Inc., Defendants, and P & C Food Markets, Inc., Respondent.
    Decided February 23, 1982

      APPEARANCES OF COUNSEL

      J. Byron O’Connell and Lois McS. Webb for appellants.

      Richard B. Meyer 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 [b]) order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (84 AD2d 865; cf. Matter of State Univ. of N. Y. at Albany v State Human Rights Appeal Bd., 81 AD2d 688, affd 55 NY2d 896).

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


text:
    S & D Thrift Stores, Inc., Appellant, v Con Edison, Also Known as Consolidated Edison of New York, Inc., Respondent.
    Submitted January 15, 1982;
    decided February 23, 1982

      APPEARANCES OF COUNSEL

      Bruce S. Reznick, Jack J. Albert and Robert Long for appellant.

      Joseph J. Klem and Ernest J. Williams for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to Trial Term for assessment of damages on Consolidated Edison’s first counterclaim, and, as so modified, should be affirmed, with costs.

We agree with the Appellate Division that, it being undisputed that plaintiff’s electric meter was tampered with and that plaintiff was aware of that fact, Consolidated Edison was entitled to recover for the service actually used by plaintiff, without regard to who caused the tampering. Plaintiff’s contention that Consolidated Edison cannot recover on such a theory because not pleaded overlooks paragraph 18 of the counterclaim. Moreover the evidence presented no triable issue of fact on the question of liability. It was, therefore, proper to direct judgment for Consolidated Edison on that counterclaim.

The situation is different with respect to damages, however. Plaintiff demanded a jury trial on the counterclaim and Consolidated Edison by failing to object to a jury agreed to submission of the determination of the amount owed as an issue for them. We, therefore, have no occasion to address whether that submission was proper in view of the prior administrative proceeding before the Public Service Commission (see 16 NYCRR Part 11) and plaintiff’s failure to seek review of that determination. There clearly was a triable issue for the jury concerning amount of damages: the propriety of the test period used which was at the end of the five-year period during which the meter functioned improperly and was atypical, according to plaintiff’s testimony, both as to time (hours the store was open were 50% greater than the rest of the year) and area to be lighted (from the beginning to the end of the period the area of the store increased eightfold). The case must, therefore, be remitted for jury trial on the damage issue.

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

Order modified, with costs to appellant, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of the Attorney-General of the State of New York, Respondent, v Curtis Katz et al., Appellants.
    Argued February 9, 1982;
    decided February 23, 1982

      APPEARANCES OF COUNSEL

      Gary M. Rosenberg and Harold Zucker for Curtis Katz, appellant.

      Stanley Alter for Thunderbird Realty Company and others, appellants.

      Robert Abrams, Attorney-General (Gerald J. Hurwitz and Shirley Adelson Siegel of counsel), respondent pro se.

      Steven M. Hayes for Teddy Roth and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs and without prejudice to an application by respondents to Special Term for the vacation of the injunction order of March 19,1980 in light of the commencement of the plenary action.

The Appellate Division has the same discretion as does Special Term in deciding whether an injunction order should be vacated and may, by way of reviewing the action of Special Term, modify its order in the exercise of discretion even though it cannot be said that Special Term abused its discretion (Kover v Kover, 29 NY2d 408, 415, n 2; Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367, 370-371; O’Connor v Papertsian, 309 NY 465, 471). Its order of April 28, 1981 is, therefore, “a discretionary decision outside our power of review” (Gutin v Mascali & Sons, 11 NY2d 97, 99).

Nor can we agree with respondents that an injunctive order issued pursuant to section 354 of the General Business Law expires eo instanti with the commencement of a section 353 plenary action. Because an injunction application can be made in the plenary action, there will generally be no reason for continuance of a section 354 injunction after a section 353 action has been begun and the Attorney-General has had an opportunity to seek an injunction in the plenary action. It would, however, be inconsistent with the purpose of the statute to terminate the section 354 injunction at the moment the plenary action papers are served. Those against whom a plenary action is begun are sufficiently protected against being whipsawed between two overlapping and possibly not entirely consistent orders by the right to move for dissolution of the section 354 order once the section 353 action has been begun.

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

Order affirmed in a memorandum, without costs and without prejudice to an application by respondents-appellants to Special Term for the vacation of the injunction order of March 19, 1980.


text:
    New York Telephone Company, Respondent-Appellant, v Jules V. Speciner, as Trustee in Bankruptcy of Marshall Construction Company, Inc., Appellant-Respondent.
    Submitted January 25, 1982;
    decided February 23, 1982
   Motion for leave to cross-appeal denied.

Judges Gabrielli and Fuchsberg taking no part.


text:
    Victoria Ofori, Appellant, v Victor K. Ofori, Respondent.
    Decided February 23, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 43).


text:
    In the Matter of Westchester Rockland Newspapers, Inc., Respondent, v Carl A. Vergari, as District Attorney of the County of Westchester, Appellant.
    Submitted February 15, 1982;
    decided February 23, 1982
   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 (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198, 200-201).


author: Meyer, J.

text:
    In the Matter of Robert M. Mingo, Appellant, v Peter Pirnie, as Personnel Officer for Wayne County and Director of Wayne County Civil Service Commission, et al., Respondents.
    Argued January 7, 1982;
    decided February 25, 1982

      APPEARANCES OF COUNSEL

      James T. Hancock for appellant.

      Donald Crowley, County Attorney, for Peter Pirnie, respondent.

      James A. Spitz, Jr., for Mary Lou Wilson and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division except insofar as it discusses a right to a hearing because of injury to petitioner’s reputation. Inasmuch as that issue was not raised in the petition, it need not be reached here (cf. Matter of Anonymous v Codd, 40 NY2d 860).

In addition, we note that the respondents’ determination to disqualify petitioner was neither without factual basis nor was it arbitrary or capricious.

Meyer, J.

(concurring). I agree that injury to reputation was not raised in the petition and write only to articulate my views concerning subdivision 4 of section 50 of the Civil Service Law. That section requires no more than that the person to be disqualified be “given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.” It provides for no hearing and gives no authority to require one by the agency. Even at Special Term a hearing will not generally be required (cf. Johnson v City of New York, 63 AD2d 886; and Matter of McShane v City Civ. Serv. Comm. of City of N. Y., 51 AD2d 521), for the issue there will usually be whether the disqualification was without statutory authorization (see Matter of Beatty v New York City Tr. Auth., 68 AD2d 913, app dsmd 47 NY2d 852) or was made without any basis in fact and thus was arbitrary and capricious (Matter of Buono v Bahou, 47 NY2d 957; see Matter of Canarelli v New York State Dept. of Civ. Serv., 44 AD2d 645). Here, the disqualification is within the statutory authorization and, notwithstanding the letters presented by petitioner from the Fairport Police Department and the Monroe Community College Assistant Director of Security, it cannot be said that the commission disqualification determination was without factual basis.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judge Meyer concurs in an opinion in which Judge Jasen also concurs; Judge Jones taking no hart.

, Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anonymous, an Alleged Mentally Ill Person, Appellant. Robert Cancro, as Director of Bellevue Psychiatric Hospital, Respondent.
    Argued February 8, 1982;
    decided February 25, 1982

      APPEARANCES OF COUNSEL

      Michael Ambrosio, Clifford S. Karr and Ronald N. Gottlieb for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for respondent.

      Robert Abrams, Attorney-General (Thomas P. Dorsey and Shirley Adelson Siegel of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, without costs. The Appellate Division did not abuse its discretion in dismissing the appeal to that court for mootness.

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


text:
    Richard B. Hobart et al., Appellants, v David Schuler, Respondent.
    Argued January 15, 1982;
    decided February 25, 1982
    APPEARANCES OF COUNSEL

      John F. Maxwell and Robert S. Bernard for appellants.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs commenced this action to recover the balance due on a note given by defendant in connection with his purchase of plaintiffs’ shares in a corporation. Defendant’s answer asserted an affirmative defense and a counterclaim based on the alleged fraud of plaintiffs in inducing him to enter into the agreement. Plaintiffs moved to strike defendant’s answer and for summary judgment on the ground that there was no defense to their cause of action.

Plaintiffs contend that defendant’s fraud defense cannot be proven, because parol evidence is inadmissible to prove any oral representations, !fey reason of a provision in the stock purchase agreement which states that all representations, warranties, understandings and agreements between the parties are set forth in the agreement. However, such a general merger clause is generally insufficient to bar parol evidence of a fraudulent misrepresentation (Sabo v Delman, 3 NY2d 155). Further, the fraudulent representation which forms the basis of defendant’s affirmative defense is not specifically contradicted by any of the detailed representations or warranties contained in the agreement (Danann Realty Corp. v Harris, 5 NY2d 317).

For defendant’s part, his affidavit in opposition to the motion has raised a triable issue of fact. Defendant there sets forth his allegations that plaintiffs falsely represented to him that while the income statement showed income of only $3,450, actual income was $3,950, the difference being unreported income which plaintiffs removed from the corporation on a weekly basis; that defendant was induced to purchase the business on this basis; and that these representations were false. The only inference to be drawn from an examination and a fair reading of defendant’s affidavit is that defendant has asserted that plaintiffs knew the statements to be false when made. As defendant has raised a triable issue regarding the affirmative defense of fraud, summary judgment was properly denied to the plaintiffs.

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

Order affirmed, etc.


text:
    The People of the State of New York ex rel. Michael J. Bousquet, on Behalf of Anonymous, Appellant, v Steven Katz, as Medical Director, Bellevue Psychiatric Hospital, Respondent.
    Argued February 17, 1982;
    decided February 25, 1982

      APPEARANCES OF COUNSEL

      Margaret L. Wiener, Michael A. Ambrosio, Stephen J. Harkavy and Ronald N. Gottlieb for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. The Appellate Division did not err in dismissing the appeal to that court (see People ex rel. Wilder v Markley, 26 NY2d 648).

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


text:
    In the Matter of Eugene J. Morris, Appellant, v Thomas A. Martin, as Chairman of the State Board of Equalization and Assessment, et al., Respondents, and Department of Finance of the City of New York, Intervenor-Respondent.
    Decided February 25, 1982

      APPEARANCES OF COUNSEL

      Eugene J. Morris for appellant.

      Robert Abrams, Attorney-General (Maurice K. Peaslee of counsel), for respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {Reed G. Schneider of counsel), for intervenor-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 [b]), order reversed, with costs, and the judgment of Supreme Court, Albany County, reinstated. We agree with Special Term that the material requested by petitioner is not exempted from disclosure under Public Officers Law, § 87 (subd 2, pars [a], [b] or [g]).

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


text:
    In the Matter of Vera T. Louise Wise Services, Respondent; Cherie T., Appellant.
    Argued February 9, 1982;
    decided February 25, 1982

      APPEARANCES OF COUNSEL

      Virginia C. Buncombe and Bernard C. Durham for appellant.

      Stephen Wise Tulin for respondent.

      Louis L. Frank and Yvonne Lawrence, Law Guardian, for Vera T.

      Frederick A.O. Schwarz, Jr., Corporation Counsel (Marjorie Bornes of counsel), for Commissioner of Social Services of the City of New York.
   OPINION OF THE COURT

Memorandum.

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

Under the applicable standard that we explicated in Matter of Hime Y. (52 NY2d 242) we cannot conclude that the evidence in this record was insufficient as a matter of law to sustain the determination of the Appellate Division that “at the time of trial the mother was then, and for the foreseeable future, unable by reason of her mental illness, to provide proper and adequate care for the child” (80 AD2d 511).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Patricia De Jonge et al., Respondents, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Appellants. In the Matter of Maria Justiniano, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent. In the Matter of Charlene Chatterton, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Respondent, and W. Burton Richardson, as Commissioner of the Monroe County Department of Social Services, Appellant.
    Decided February 25, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Dale E. Skivington and Shirley Adelson Siegel of counsel), for Barbara Blum, as Commissioner of the New York State Department of Social Services.

      Milo I. Tomanovich, James A. Robinson and Douglas Reynolds for W. Burton Richardson, as Commissioner of the Monroe County Department of Social Services.

      Bryan Hethérington for Patricia De Jonge and others, respondeiits.

      Rene H. Reixach for Charlene Chatterton, respondent.
   opinion of the court

Memorandum.

The orders of the Appellate Division should be affirmed, with costs. The allowance for an unborn child may not be prórated by counting the expectant mother as a member of the statutory household when in fact she has no unmet needs (Snowberger v Toia, 46 NY2d 803). Nor may the commissioner urge that it is reasonable to treat an unborn child differently from other needy persons in view of the fact that the commissioner’s own regulations expressly provide that an unborn child shall be considered as a living child for the purpose of the basic allowance (18 NYCRR 369.2 [a] [1] [i]; also cf. Matter of Rankin v Lavine, 41 NY2d 911). That is not to say that the commissioner could not reasonably have adopted a different regulation, nor do we pass upon the effect or validity of the recent amendment to the Social Services Law (L 1981, ch 1053, § 3, now Social Services Law, § 131-a, subd 6, par [e]).

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

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


text:
    Robert V. Kemp et al., Respondents, v Lakelands Precast, Inc., Respondent, and New York Telephone Company, Appellant. Lakelands Precast, Inc., Third-Party Plaintiff-Respondent, v Anrad Construction Corporation, Third-Party Defendant-Respondent.
    Decided February 25, 1982

      APPEARANCES OF COUNSEL

      Francis E. Lehner and Michael M. Emminger for appellant.

      Alfred C. Purello for plaintiffs-respondents.

      James L. Pemberton for defendant-respondent.

      Dale M. Thuillez for third-party defendant-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) óf the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to appellant, by (1) granting a new trial solely on the issue of defendant New York Telephone Company’s liability to plaintiffs, and (2) in the event New York Telephone is on such retrial found liable to plaintiffs, directing a verdict in its favor against Lakelands Precast, Inc., on the claim over in the full amount of the telephone company’s liability; and, as so modified, order affirmed. The trial court erred in refusing to charge contributory negligence as a bar to recovery by plaintiffs (see Long v Forest-Fehlhaber, 55 NY2d 220). Lakelands, not having appealed to this court, is not, however, entitled to a retrial as to liability. The telephone company’s liability to plaintiffs, if any, arises from the nondelegable duty imposed upon it by subdivision 6 of section 241 of the Labor Law. There being no evidence that it had authority to exercise or in fact did exercise control over the offloading of the vault by Lakelands’ employee in the course of which the plaintiff’s injury occurred, New York Telephone was entitled under principles of common-law indemnity to a directed verdict on its claim over.

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


text:
    Eleanor Nesbitt, Appellant, v New York City Conciliation and Appeals Board et al., Respondents. Barbara H. Eaton, Appellants, v New York City Conciliation and Appeals Board et al., Respondents.
    Submitted February 8, 1982;
    decided February 25, 1982
   Motion for leave to appeal denied as unnecessary (see Dalyrymple v Shults Chevrolet, 39 NY2d 795). Motion by Tenants Association of St. John’s Colony for intervention as a party appellant and for a stay pending determination bf the appeals granted.


text:
    Casimir Pajak, Respondent, v Marlene Pajak, Appellant.
    Submitted February 8, 1982;
    decided February 25, 1982
   Motion for permission to prosecute the appeal as a poor person granted. Cross motion for an order directing a hearing as to competency dismissed upon the ground that this motion for original relief may not be entertained by the Court of Appeals.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v George Mark Lane, Appellant. The People of the State of New York, Respondent, v Michael Wells, Appellant.
    Argued March 24, 1982;
    decided May 13, 1982

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shifferin of counsel), for George Mark Lane, appellant.
    I. The trial court committed reversible error when it consolidated two indictments charging separate and distinct criminal transactions despite the objection of defendant who had provided the court with a detailed explanation of his intention to testify concerning one of the indictments and to remain silent with respect to the second indictment. (Harris v New York, 401 US 222; People v Plevy, 52 NY2d 58; People v Shapiro, 50 NY2d 747; Baker v United States, 401 F2d 958, 400 US 965; Cross v United States, 335 F2d 987; Griffin v California, 380 US 609; People v Edwards, 80 AD2d 993; People v Rahming, 26 NY2d 411; People v Hepburn, 52 AD2d 958; People v Mohammed, 63 AD2d 655.) II. Consolidation of Indictment Nos. 1065/78 and 1066/78 was erroneous as a matter of law, because the two indictments shared neither a unique modus operandi nor common witnesses, which were the rationales upon which the trial court granted consolidation. (People v Condon, 26 NY2d 139; People v Molineux, 168 NY 264; People v Grutz, 212 NY 72; People v Allweiss, 48 NY2d 40; Bruton v United States, 391 US 123.) III. There was substantial risk that the jury used the confession of codefendant Michael Wells to determine appellant’s guilt to the crimes charged; it was therefore reversible error to try defendants together in a joint trial. (Bruton v United States, 391 US 123; People v Boone, 22 NY2d 476; People v Berzups, 49 NY2d 417; People v Fisher, 249 NY 419; People v La Belle, 18 NY2d 405; People v Burrelle, 21 NY2d 265; People v Jackson, 22 NY2d 446.)

      Irene K. Dymkar for Michael Desmond Wells, appellant.
    I. Probable cause for the arrest of appellant was based on possibly quadruple hearsay, and the lack of proof at the suppression hearing of the underlying bases of the probable cause requires the suppression of appellant’s statements, his consent to search, and the fruit of that search (a watch and two photographs of the watch). (Brown v Illinois, 422 US 590; People v Bouton, 50 NY2d 130; People v Wise, 46 NY2d 321; People v Elwell, 50 NY2d 231; Adams v Williams, 407 US 143; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Lypka, 36 NY2d 210; Whiteley v Warden, 401 US 560; People v Havelka, 45 NY2d 636; People v Brnja, 50 NY2d 366.) II. The police had no right to enter the apartment for a felony arrest without a warrant and without probable cause to believe that a suspect was there, the third-party consent they allegedly obtained for the search was neither voluntary nor valid, and the police had no probable cause to seize the nightstick or take photographs of it. (People v Berrios, 28 NY2d 361; Payton v New York, 445 US 573; Steagald v United States, 451 US 204; People v Knapp, 52 NY2d 689; Mincey v Arizona, 437 US 385; People v Adams, 53 NY2d 1; Bumper v North Carolina, 391 US 543; People v Gonzalez, 39 NY2d 122; People v Whitehurst, 25 NY2d 389; People v Kuhn, 33 NY2d 203.) III. The CB radio should be suppressed as evidence at trial because the District Attorney offered no evidence at the suppression hearing concerning its seizure from appellant’s residence, because the consent to search was limited to an earlier date and to a specific item, and because the consent to search was the result of an illegal arrest. IV. The evidence in Indictment No. 1065 and the evidence in Indictment No. 1066 were distinct and separate and the consolidation of the two indictments for trial prejudiced appellant and prevented him from presenting a distinct defense to each indictment; also, the Judge’s resultant charge to the jury concerning a common modus operandi was prejudicial. (People v Molineux, 168 NY 264; People v Allweiss, 48 NY2d 40; People v Sandoval, 34 NY2d 371; People v Conyers, 52 NY2d 454; People v Shapiro, 50 NY2d 747; Simmons v United States, 390 US 377; People v Owens, 22 NY2d 93; People v Bornholdt, 33 NY2d 75; Washington v Texas, 388 US 14; Chambers v Mississippi, 410 US 284.)

      Donald O. Chesworth, Jr., District Attorney (Kenneth R. Fisher of counsel), for respondent.
    I. Defendants have not demonstrated a clear abuse of discretion resulting from a consolidated trial of the two robbery indictments. (Cross v

      United States, 335 F2d 987; People v Shapiro, 50 NY2d 747; People v Dodge, 72 Misc 2d 345; People v Munger, 24 NY2d 445; People v Johnson, 48 NY2d 925; United States v Weber, 437 F2d 327; Holmes v Gray, 526 F2d 622; Robinson v United States, 459 F2d 847; United States v Williamson, 482 F2d 508; People v Molineux, 168 NY 264.) II. The affirmed finding of probable cause finds support in the record and, therefore, is beyond review in this court. (People v Jenkins, 47 NY2d 722; People v Adler, 50 NY2d 730; People v Havelka, 45 NY2d 636; People v Lypka, 36 NY2d 210; People v Bouton, 50 NY2d 130; United States v Bolin, 514 F2d 554; United States v Canieso, 470 F2d 1224; United States v Vargas, 633 F2d 891; People v Berrios, 28 NY2d 361.) III. Seizure of the nightstick resulted from its observation in plain view by the officers executing the consent to search, not from any prior entry into defendant’s apartment. (Payton v New York, 445 US 573.) IV. Defendant’s Fourth Amendment claim relative to admission of the CB radio was not preserved and would not otherwise provide a ground for reversal. (People v Berrios, 28 NY2d 361; People v Perdue, 70 AD2d 477; People v Peterson, 25 AD2d 437.) V. The discretionary denial of the motion to sever defendants for trial does not, on this record where defendant (Lane) was acquitted of one set of charges, provide a ground for reversal. (People v Berzups, 49 NY2d 417; People v Safian, 46 NY2d 181; People v Woodward, 50 NY2d 922.)
   OPINION OF THE COURT

Wachtler, J.

In order to defeat a motion by the People to consolidate two indictments made on the ground that proof of one offense would be material and admissible upon a trial of the second offense (CPL 200.20, subd 2, par [b]; subd 4), a defendant claiming that he wishes to testify as to the first allegedly criminal transaction but not as to the second must make a convincing showing that he has both important testimony to give concerning one offense and a strong need to refrain from testifying as to the other. In that neither defendant here advanced sufficient information or grounds to satisfy this requirement, the Appellate Division’s orders affirming the judgments of conviction in each case should be affirmed.

Defendants were charged in Indictment No. 1065 with a robbery which occurred on November 29, 1978 and in Indictment No. 1066 with a robbery which occurred on December 2, 1978. The circumstances underlying each charge were remarkably similar. In each instance two young men matching defendants’ descriptions were picked up while hitchhiking in downtown Rochester. Once in the vehicle a knife was held on the driver, who was ordered to drive to a location near Driving Park Bridge. There the driver was removed from the car, robbed of his money and locked in the trunk. The car was then driven to and abandoned on a dead-end road near the Genesee River Gorge.

The People filed a pretrial motion for consolidation of the indictments on the ground that proof of the underlying criminal transaction as to one offense would be material and admissible as evidence-in-chief on trial of the other (CPL 200.20, subd 2, par [b]; subd 4). Based upon oral arguments the court granted the motion to consolidate.

Defendants thereafter moved for reconsideration and an affidavit of counsel was submitted on behalf of each defendant in opposition to consolidation informing the court that they wished to testify with respect to the events of November 29 but that they desired to remain silent as to the events of December 2. More specifically, as to Indictment No. 1065, each defendant represented an intent to testify that his involvement on November 29 with the victim was for the purpose of engaging in certain sexual acts for money, and that regardless of whether those acts occurred and may have been criminal in nature, no robbery was committed. As to Indictment. No. 1066, however, each defendant represented a desire to remain silent in that due to the inability of the victim to identify one of the perpetrators of the alleged December 2 robbery and to the court’s suppression of any identification of the other individual involved, he would rest his defense on what he perceived to be the weakness of the People’s identification evidence.

Defendants contended that under these circumstances it was error to have ordered consolidation of the indictments. The trial court again rejected defendants’ arguments and denied the motion for reconsideration.

Neither defendant took the stand at trial. The jury found both defendants guilty of the November 29 robbery and found defendant Wells guilty of the December 2 robbery but acquitted defendant Lane of that charge. The Appellate Division affirmed all judgments of conviction. We hold that the trial court did not err in consolidating the two indictments and affirm.

As a preliminary matter it is advisable to distinguish between consolidation and severance in the context of a criminal proceeding and briefly examine pertinent legislation in the area. Consolidation is the procedure by which the prosecutor or the defendant attempts to have two or more separate indictments combined for a single trial. To obtain consolidation the applicant must demonstrate to the satisfaction of the court not only that the offenses charged in the separate indictments are joinable in accordance with the statutory criteria set forth in CPL 200.20 (subd 2) but also that combination for a single trial is an appropriate exercise of discretion (CPL 200.20, subd 4).

By contrast, severance is the converse procedure by which the prosecutor or the defendant attempts to obtain separate trials of two or more counts contained in a single indictment. To effect a severance the applicant must either demonstrate that the counts were not joinable under the statutory criteria (CPL 200.20, subd 2) or seek a discretionary severance Under CPL 200.20 (subd 3). The latter subdivision applies, however, only with respect to counts which are joinable under paragraph (c) of subdivision 2 of the section (offenses defined by same or similar statutory provisions), and severance will be granted only if he can persuade the court that the severance should be granted “in the interest of justice and for good cause shown”.

It is significant that in the last-quoted phrase the Legislature has established a standard for the exercise of discretion on applications for severance in the single category of cases identified. All requests for consolidation, however, are governed under the statute simply by the permissive “may”.

Thus it is clear that the decision to consolidate separate indictments under CPL 200.20 (subd 4) is committed to the sound discretion of the Trial Judge in light of the circumstances of the individual case, and the decision is reviewable on appeal to this court only to the extent that there has been an abuse of that discretion as a matter of law. Trial courts should generally weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant’s interest in being protected from unfair disadvantage. While the trial courts must be afforded reasonable latitude in exercising discretion in these matters, we emphasize that compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated.

Consolidation can conceivably be opposed on a wide variety of grounds. The specific issue presented by the instant appeals is the degree to which a defendant must demonstrate some articulable prejudice in order to defeat a consolidation motion when the defendant’s root contention is that he wishes to testify as to a criminal transaction alleged in one indictment but desires to remain silent as to a criminal transaction alleged in the other indictment. The basis of the People’s consolidation motion is that the evidence relating to the two crimes would be admissible on each indictment even if they were tried separately.

We find it appropriate to adopt the standard espoused by the seminal decision governing defendants’ contention in the context of a motion to sever separate counts of a single indictment. In Baker v United States (401 F2d 958, 977, cert den 400 US 965), the court required that the defendant make “a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying”. This test has previously been applied in this State in the determination of severance motions (see People v Dodge, 72 Misc 2d 345), and in that the same considerations of fairness and prejudice apply we see no reason why the Baker standard should not also govern the exercise of judicial discretion in determining consolidation motions.

Our decision in People v Shapiro (50 NY2d 747) is entirely consistent with and supportive of the result we reach today. There the defendant was charged in Indictment No. 143 with 64 counts of repeated sodomitic acts over a 17-month period, and in Indictment Nos. 117 and 118 with the more serious offense of promoting the conduct in question but in relation to only a single event. After consolidation of the three indictments, defendant moved to sever trial on Indictment No. 143 from trial on Indictment Nos. 117 and 118 but the motion was denied. Defendant claimed that the multiplicity of the 64 counts in the former carried the potential of prejudicing his defense on the charges arising out of the latter, unrelated single incident, in that the promotion offense would be deemed simply a natural outgrowth of the numerous individual offenses. Additionally, the defendant swore that although he did not want to take the stand in Indictment No. 143, presumably electing to rely on his legal defenses, he desired to do so in Indictment Nos. 117 and 118 because he was the only one who could possibly deny the promotion charges.

We held that it was an abuse of discretion as a matter of law to deny the motion under the unique circumstances presented in Shapiro. Although we did not expressly apply the Baker test, we cited People v Dodge (supra), as precedent for our holding and, as noted above, Dodge did expressly adopt the Baker test. Moreover, we made it abundantly clear that the Baker standard was fully satisfied in Shapiro (People v Shapiro, 50 NY2d, at p 757).

Proceeding to the facts at bar, we find that the trial court did not abuse its discretion in granting the People’s motion and ordering the consolidation of Indictment Nos. 1065 and 1066. Assuming, arguendo, that defendants made a sufficient showing that they had important testimony to give regarding the November 29 robbery, we find that they did not convincingly demonstrate a strong need to refrain from testifying as to the December 2 robbery.

The stated desire to take advantage of a perceived weakness in the People’s case on the issue of identification is alone patently insufficient. Rather, it was incumbent upon defendants to articulate in concrete terms why they would be unduly prejudiced by giving testimony on the December 2 count either supporting misidentification or simply denying the charge. For example, the possibility of cross-examination regarding specific criminal convictions or prior sordid conduct and the attendant risk óf serious impeachment may justify a desire to refrain from testifying on one count but not on another where testimony is essential regardless of the risk of impeachment. However, speculative fears of exposure to cross-examination regarding undocumented events and abstract claims of impeachment, like the “conclusory generalities” and “self-serving representations” identified in Shapiro, should never be considered dispositive absent the most obviously egregious circumstances.

Finally, we note that if the defendant believes he would be revealing information to which the prosecution is not privy and which would unfairly expose his tactics or strategy, he should request the simple expedient of an in camera review of the damaging information or assertions. Given that the customary Sandoval motion will have been made or anticipated prior to the consolidation motion it is doubtful that this procedure will be necessary in most instances.

We have reviewed the other contentions raised by defendants and find them to be without merit.

Accordingly, in each case the order of the Appellate Division should be affirmed.

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

In each case: Order affirmed.