text:
    The People of the State of New York, Appellant, v Joseph Perri, Respondent.
    Argued May 1, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Alan D. Rubinstein of counsel), for appellant.

      Barry Gene Rhodes for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by Justice Charles Hargett at the Appellate Division (72 AD2d 106).

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Mamdoh S. Yaakob, Appellant, v Arnold and Marie Schwartz College of Pharmacy and Health Sciences of Long Island University, Respondent.
    Argued April 27,1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Charles D. Maurer for appellant.

      Eric Rosenfeld and Richard Schoolman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 884).

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


text:
    In the Matter of Robert Mersereau et al., Appellants, v Robert McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Argued April 30, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Irving P. Seidman, Joel L. Hecker and Lawrence H. Silverman for appellants.

      Allen G. Schwartz, Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 849).

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


text:
    John C. Giordano, Jr., et al., as Executors of Robert J. Schmertz, Deceased, Appellants, v James G. McMurtry et al., Defendants, and Peter W. Carmel, Respondent.
    Argued May 1, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Judith A. Livingston and Daniel Kramer for appellants.

      Anthony M. Sola and Richard A. Young for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (79 AD2d 548).

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


text:
    NAB Construction Corp. et al., Respondents-Appellants, v Great American Insurance Companies, Appellant-Respondent.
    Argued April 28, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Franklin E. Tretter for respondents-appellants.

      Eugene Wolian and Lawrence S. Greengrass for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, and the question certified answered in the affirmative.

We cannot say, as a matter of law, that the newly discovered evidence presented by plaintiff was insufficient to justify a grant of plaintiff’s motion to renew. In view of this new evidence, a question of fact exists as to whether defendant could properly cancel plaintiff’s insurance policy for nonpayment of premiums. Hence, summary judgment was properly denied.

We have examined the parties’ remaining contentions and have found them to be without merit.

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

Order affirmed, etc.


text:
    In the Matter of Joseph Ametrano, Appellant, v New York City Housing Authority, Respondent.
    Argued May 1, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Henry Schoenfeld and Michael M. Cohen for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 811).

Concur: Chief Judge Cooke and Judges Jasen, Gabri-Elli, Jones, Wachtler, Fuchsberg and Meyer.


author: Meyer, J.

text:
    In the Matter of Jonathan Kwitny, Respondent, v Robert J. McGuire, as Commissioner of Police of the City of New York, et al., Appellants.
    Argued April 28, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for appellants.

      Mark R. Hellerer and Robert D. Sack for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Richard W. Wallach at Supreme Court.

In response to the position advanced by the dissent it suffices to observe that while subdivision 3 of section 400.00 of the Penal Law prescribes the inclusion in the application of certain described data, nothing in that subdivision precludes expansion of the application by the licensing officer to require submission of additional relevant information. Nor does anything in subdivision 5 suggest that the “application” thereby made a “public record” is limited to the data required to be furnished under subdivision 3. Whether as a matter of sound policy disclosure of the contents of applications should be restricted is a matter for consideration and resolution by the Legislature.

Meyer, J.

(dissenting). Respectfully I disagree. Though subdivision 5 of section 400.00 of the Penal Law provides that “The application for any license, if granted, shall be a public record”, and subdivision 5 of section 89 of the Public Officers Law makes clear that the Freedom of Information Law does not “limit or abridge any otherwise available right of access * * * to records”, the holding of the majority fails to take account of subdivision 3 of section 400.00 of the Penal Law. The latter provision mandates that “An application shall state the full name, date of birth, residence, present occupation of each person or individual signing the same, whether or not he is a citizen of the United States, whether or not he complies with each requirement for eligibility specified in subdivision one of this section and such other facts as may be required to show the good character, competency and integrity of each person or individual signing the application.”

All that the Legislature has constituted a public record, therefore, is the data required by subdivision 3 to be stated. To the extent that the licensing officer may require information other than that listed above, subdivision 5 does not mandate public access and the Freedom of Information Law does not prohibit, indeed explicitly allows, abridgement of the right of access in specified instances. One such instance in which access may be denied is spelled out by section 87 (subd 2, par [f]) of the Public Officers Law: when the record “if disclosed would endanger the life or safety of any person”.

As the redacted applications in the record show, applications often, if not always, contain data concerning times when cash is, or other valuables are, transported by the prospective licensee. To open all the data concerning applicants to the public is to provide criminals with a ready source of information which if disclosed will endanger the life or safety of the applicant and possibly others. The Executive Director of the Committee on Public Access to Records recognized the potential danger in both of his letters to petitioner’s counsel, but looking only at subdivision 5 and not considering the relationship between it and subdivision 3 felt that only amendatory legislation could rectify the situation. The majority now falls into the same mistake.

The Freedom of Information Law permits deletions to be made from records before they are made available to the public (Public Officers Law, § 89, subd 2, pars [a], [c], cl i). The interests sought to be protected by the “public record” provision of subdivision 5 of section 400.00 of the Penal Law can be fully protected by making available to petitioner only so much of the application papers as contains the data specified in subdivision 3 and such other data as the licensing officer concludes cannot endanger the life or safety of the applicant. I would, therefore, reverse the order of the Appellate Division and direct that the judgment of Special Term be modified to allow access to the applications in question only after redaction therefrom of data, other than that specified in subdivision 3, which the licensing officer finds would endanger an applicant’s life or safety.

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

Order affirmed, with costs, in memorandum.

       Eligibility under subdivision 1 turns on good moral character, absence of conviction of a felony or serious offense, absence of mental illness or confinement for mental illness, and absence of good cause for denial of a license.


text:
    Samuel Emery, Sr., et al., Plaintiffs, v Depot Construction Company, Defendant and Third-Party Plaintiff-Respondent, et al., Defendants and Third-Party Plaintiffs. Roy Barnaby, Third-Party Defendant; Roy Barnaby, Inc., Third-Party Defendant-Appellant.
    Argued April 29, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Thomas P. Lynch, Judah Gribetz, John L. Altieri, Jr., and Edward H. Burnbaum, Jr., for appellant.

      Stephen D. Smyk for respondent.
   OPINION OF THE COURT

Judgment appealed from and the order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Justice Michael E. Sweeney at the Appellate Division (75 AD2d 102).

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


text:
    David C. Young, as Director of the Division of Buildings and Property Rehabilitation of the City of Syracuse, Appellant, v Ahleen Englestein, as Executrix of David Englestein, Deceased, et al., Respondents. Frank L. Canino, as Commissioner of Finance of the City of Syracuse, Intervenor.
    Argued April 30, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (James L. Gelormini of counsel), for appellant.

      Donald J. Ball for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Special Term reinstated. We need not resolve the apparent inconsistency between sections 22 and 47-a of the Syracuse Tax Act, for even if section 22 be mandatory it is not self-executing. Until such time as respondents are in fact divested of title they remain responsible for carrying out the demolition order made pursuant to the Housing Code.

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

Order reversed, with costs, and the order of Supreme Court, Onondaga County, reinstated in a memorandum.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v State Board of Equalization and Assessment, Appellant, and Village of Pleasantville et al., Intervenors-Appellants.
    Argued April 29, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Vernon Stuart and Michael S. Buskus of counsel), for appellant.

      Michael Whiteman and Melvin H. Osterman, Jr., for Westchester Municipalities, intervenors-appellants.

      Marvin S. Fink for Village of Scarsdale, intervenor-appellant.

      Henry J. Smith for City of Mount Vernon and others, intervenors-appellants.

      Allen G. Schwartz, Corporation Counsel (John P. McArthur of counsel), for City of New York, intervenorappellant.

      Martin B. Cowan, Ernest J. Williams, Robert G. Desmond, Robert A. Machleder and Mark S. Tulis for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (73 AD2d 31). Question certified answered in the affirmative.

Concur: Judges Jasen, Gabrielli, Wachtler and Fuchsberg. Chief Judge Cooke and Judges Jones and Meyer dissent and vote to reverse for reasons stated in the opinion by Justice Harold E. Koreman at Special Term (98 Misc 2d 491).


text:
    Joel Tahir, Appellant, v Emanuel Lamb et al., Doing Business as The Breakers, Respondents.
    Submitted April 30, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Bernard Fremont for appellant.

      Irwin M. Miller and Mary Ellen Cirrito for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 810).

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


text:
    The People of the State of New York, Appellant, v Claude M. Brown, Respondent.
    Argued May 1, 1981;
    decided June 2, 1981

      APPEARANCES OF COUNSEL

      Joseph Kelley, District Attorney (Steven Foyer of counsel) , for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Clinton County Court reinstated.

Defendant was indicted for the crime of operating a motor vehicle while in an intoxicated condition based on evidence of the results of a breathalyzer test and testimony of a police officer who observed the defendant at the time of his arrest. The jury was charged that it could find defendant guilty of driving while intoxicated (Vehicle and Traffic Law, § 1192, subd 3) or of operating a motor vehicle while having more than .10 of 1% of alcohol in his blood (Vehicle and Traffic Law, § 1192, subd 2). The court refused defendant’s request to charge the jury on the lesser offense of driving while one’s ability is impaired by alcohol consumption (Vehicle and Traffic Law, § 1192, subd 1). The jury found defendant guilty of violating subdivision 2 of section 1192 and acquitted him on subdivision 3 (driving while intoxicated).

The Appellate Division, in holding that it was reversible error to fail to charge the jury concerning the ability impaired offense, misapplied the law regarding lesser included offenses. While it is true, as both the majority and dissent below agreed, that driving while impaired is a lesser included offense of driving while intoxicated (see People v Hoag, 51 NY2d 632), this defendant was not prejudiced by the failure to charge the lesser offense, because he was found not guilty of driving while intoxicated. Prejudice cannot arise merely because defendant was convicted under subdivision 2, the blood alcohol level crime, because driving while impaired is not a lesser included offense of that charge.

A lesser included offense is one which must by definition be concomitantly committed in the commission of the greater offense (CPL 1.20, subd 37; see People v Cruz, 48 NY2d 419). Here that was not true, since driving while ability is impaired pertains to the driver’s motor coordination, while the charge on which defendant was convicted pertains only to blood alcohol level without regard to the effect which that alcohol may have on the driver. A driver need not be impaired to be convicted under subdivision 2 of section 1192, and therefore driving while impaired is not a lesser included offense of that crime.

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

Order reversed, etc,


text:
    American Home Assurance Co., Appellant, v Employers Mutual of Wausau, Respondent, and Santiago Suarez et al., Appellants, et al., Defendant.
    Submitted April 27, 1981;
    decided June 2, 1981
   (A) Motion to expand record on appeal denied.

(B) Cross motion to dismiss appeal taken as of right by defendants-appellants Suarez granted and appeal dismissed as untimely. (CPLR 5513, subd [a].) Cross motion to strike supplemental appendix granted.


text:
    Aware, Inc., et al., Appellants, v Nassau County et al., Respondents.
    Submitted March 30, 1981;
    decided June 2, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. Motion to dismiss the appeal taken as of right as against defendant United Parcel Service, Inc., granted and the appeal dismissed and, on the court’s own motion, appeal taken as of right as against the remaining defendants dismissed, each for lack of a substantial constitutional question, with costs and $20 costs of motion to defendant United Parcel only.


text:
    In the Matter of Palma Mitchell et al., Appellants, v Zoning Board of Appeals, City of Yonkers, et al., Respondents, and Christian Burckel, Intervenor-Respondent.
    Submitted April 20, 1981;
    decided June 2, 1981
   Motion to dismiss the appeal denied.


text:
    Herlou Card Shop, Inc., Appellant, v Prudential Insurance Company of America, Respondent.
    Submitted May 4, 1981;
    decided June 2, 1981
   Motion to vacate this court’s order of dismissal dated March 18, 1981 denied. [See 53 NY2d 704.]


text:
    The People of the State of New York, Respondent, v George Thomas, Appellant.
    Argued May 6, 1981;
    decided June 4, 1981
    APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Howard Birnbach and Timothy J. McGinn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this record, we cannot say that the evidence is insufficient as a matter of law to support defendant’s conviction of the crime of robbery in the first degree. This being so, our inquiry is at an end for we have no power to assess the credibility of the witnesses or the weight of the evidence. Such questions must be left to the trier of fact. (See, e.g., People v De Tore, 34 NY2d 199, 206-207; see, generally, Cohen and Karger, Powers of the New York Court of Appeals, § 198, p 742.)

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert Melhado, Appellant.
    Argued May 7, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Paul A. Lemole for appellant.

      Robert M. Morgenthau, District Attorney (Bruce Allen and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of reversing defendant’s conviction for criminal possession of a weapon in the second degree, the sentence entered thereon should be vacated, and that count of the indictment should be dismissed. As so modified, the order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of criminal possession of a weapon in the second and fourth degrees. (Penal Law, §§ 265.03, 265.01.) As to defendant’s conviction for possession of a weapon in the second degree, aside from the testimony that defendant was seen holding a pistol at about the time of the shooting and that shots were fired from the area where defendant was standing with two or three other individuals, there is no evidence that defendant was in possession of a loaded weapon. On the record before us, it can only be concluded that there is insufficient evidence to support defendant’s conviction of criminal possession of a weapon in the second degree.

We have examined defendant’s remaining contentions and found them to be without merit.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Dean Russell et al., Appellants, v State of New York, Respondent.
    (Claim No. 59204.)
    Argued May 4, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Robert J. Maloney for appellants.

      Robert Abrams, Attorney-General (Douglas L. Manley, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 907).

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


text:
    Checkrite Petroleum, Inc., Appellant, v Amoco Oil Company, Respondent.
    Argued May 6,1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Jacob E. Heller for appellant.

      Richard R. Lutz and Nina Shreve for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 880).

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


text:
    The People of the State of New York, Respondent-Appellant, v Kenneth Kase, Appellant-Respondent.
    Argued May 7, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Joel A. Brenner, David S. Greenfield and Paula Schwartz Frome for appellant-respondent.

      Robert M. Morgenthau, District Attorney (Allen Alpert and Robert M. Pitler of counsel), for respondent-appellant.
   OPINION OF THE COURT

Order affirmed for reasons stated in the Per Curiam opinion at the Appellate Division (76 AD2d 532).

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


text:
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Argued May 5, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Eve Cary and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Peter Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the present record, the issue of whether the defendant acted as the agent of the purchaser was properly submitted to the jury as a question of fact (People v Roche, 45 NY2d 78, cert den 439 US 958; People v Chong, 45 NY2d 65; People v Argibay, 45 NY2d 45).

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

Order affirmed in a memorandum.


text:
    Deborah Meier, Respondent, v Frederick J. Meier, Appellant.
    Submitted April 30, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Philip H. Schaeffer and Jane D. Connolly for appellant.

      Alfred W. Charles and Irving M. Wall for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 810).

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


text:
    The People of the State of New York, Respondent, v Paul De Cresgente, Appellant.
    Argued May 4, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      John W. McCauley for appellant.

      Daniel T. Smith, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There is an affirmed finding of fact that if the specific arrangement for a one-year sentence had been made it would have been reflected in the statements signed by defendant with his attorney’s approval, rather than the indefinite clauses: “with the understanding that I am given consideration for giving it” and that “I * * * will receive consideration for pending charges in County Court.” On the record before the courts below we cannot say that there is no evidence to support that finding or that the statement relating to the County Court charges should have been suppressed as not voluntarily given.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Harold Haff, Appellant.
    Argued May 5, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      John Joseph Sutter and Ruth C. Balkin for appellant.

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Subdivision 3 of section 107 of the Civil Service Law is a valid regulation of partisan political conduct. What it proscribes is the giving within a building occupied for governmental purposes by a public officer to his subordinates of notice that they are to collect- and-receive political contributions (People v Haff, 47 NY2d 695). Limited as to place, its regulation of speech is reasonable (Civil Serv. Comm. v Letter Carriers, 413 US 548; Broadrick v Oklahoma, 413 US 601; Ex Parte Curtis, 106 US 371). Nor, in view of the commonly understood meaning of the words in which it is phrased, can it be held void for vagueness (Broadrick v Oklahoma, supra, at pp 607-608).

The evidence of defendant’s guilt was sufficient since as People v Haff (supra) makes clear the section does not require that coercive language be used, and since there was nonaccomplice testimony fairly tending to connect defendant with the commission of the crime (People v Glasper, 52 NY2d 970).

We have examined defendant’s remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v William Landman, Appellant.
    Argued May 5, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      John Joseph Sutter and Ruth C. Balkin for appellant.

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed (see People v Haff, 53 NY2d 997, decided herewith).

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


text:
    The People of the State of New York, Respondent v William Phears, Appellant.
    Argued May 5, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      John Joseph Sutter and Ruth C. Balkin for appellant.

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contentions other than that based upon collateral estoppel are either not preserved or without merit. As to that argument, it is sufficient to quote People v Lo Cicero (14 NY2d 374, 380): “Since the State of New York was not a party to the Federal prosecution and had no control of that case, collateral estoppel may not be urged against it.”

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

Order affirmed in a memorandum.


text:
    Byron Van Vlack, Jr., et al., Respondents, v Vito Ternullo, as Director of Fishkill Correctional Facility, et al., Appellants.
    Argued May-7, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for appellants.

      Michael J. Smith for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the hearing officer reinstated.

While there was evidence that some civilian employees were threatened with violence if they crossed the correction officers’ picket lines, there was also testimony that some had crossed the lines without incident. There was no testimony of any actual violence or injuries on the picket lines. Offers were made to provide safe passage through the gates in trucks.

The hearing officer heard and saw the witnesses, particularly the petitioners who testified. He was best able to judge by observation of their demeanor and otherwise the credibility and probative worth properly to be accorded their testimony. Particularly is this so when the ultimate issue was the subjective state of mind of the witnesses. Based on all the testimony before him, the hearing officer found that there was no real demonstration of violence on the picket lines, and that petitioners had “failed to bear the burden of proof that their refusal to accept assignments was due to a bona fide fear of personal injury and/or future reprisals”.

Taking into account both the statutory rebuttable presumption that an employee “who abstains wholly or in part from the full performance of his duties * * * when a strike occurs, shall be presumed to have engaged in such strike” (Civil Service Law, § 210, subd 2, par [b]) and the testimony in the record with the inferences reasonably to be drawn therefrom, we conclude that there was substantial evidence to support the determination of the hearing officer that petitioners had violated section 210 of the Civil Service Law.

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

Judgment reversed, etc.


text:
    The People of the State of New York, Respondent, v Henry Luis Rivera, Appellant.
    Argued May 5, 1981;
    decided June 4, 1981
    APPEARANCES OF COUNSEL

      William E. Hellerstein and Steven M. Jaeger for appellant.

      Mario Merola, District Attorney (David H. Fromm and Charles L. Bach of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Well in advance of defendant’s trial the People served a notice on defense counsel indicating that an oral statement defendant had made to a police officer at the time of the arrest would be used by the People at trial (see CPL 710.30). Defendant now contends that the notice was wholly inadequate to meet the minimum statutory requirements because it failed to state the contents of the statement and the circumstances under which it was made. Notwithstanding this deficiency defendant never sought an amplification of the notice prior to trial and even declined an opportunity for a hearing concerning the admissibility of the statement (cf. People v Briggs, 38 NY2d 319).

In addition, at trial, when the police officer testified as to what defendant had said, defendant failed to assert surprise or prejudice resulting from the inadequacy of the statutory notice. Had that been done in this non jury trial, an adjournment or other corrective action designed to eliminate any unfairness might have been an available cure. Having failed to present this objection at a time when corrective action was possible, defendant has not preserved the matter for our review (see People v Martin, 50 NY2d 1029).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Charles Da Forno, Appellant.
    Argued May 7, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Alan S. Axelrod and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Robert Le Fevre, Alan A. Marrus and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the memorandum of that court (see, also, People v Mason, 48 NY2d 896). Nor will this court take cognizance of the alleged off-the-record plea negotiations on which the defendant seeks to rely (People v Selikoff, 35 NY2d 227, 242; People v Frederick, 45 NY2d 520, 528).

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

Order affirmed in a memorandum.


text:
    New York State Division of Human Rights, Appellant, v Liberty Mutual Insurance Company, Respondent. New York State Division of Human Rights, Appellant, v Nationwide Mutual Insurance Company, Respondent.
    Argued May 4, 1981;
    decided June 4, 1981

      APPEARANCES OF COUNSEL

      Lawrence Kunin, Ann Thacher Anderson and Alan J. Saks for appellant.

      Kalvin M. Grove, of the Illinois Bar, admitted on motion pro hac vice, Jeffrey S. Goldman, Martin K. Denis and Douglas Boeckmann for respondents.
   OPINION OF THE COURT

In each case: Order affirmed, with costs, for reasons stated in the opinion by Justice Theodore R. Kupferman at the Appellate Division (74 AD2d 16).

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


text:
    Ford Motor Credit Company, Appellant, v Hickey Ford Sales, Inc., et al., Respondents. James G. Hoehn et al., Respondents, v Ford Motor Credit Company et al., Appellants. State Bank of Albany, Respondent, v Ford Motor Credit Company et al., Appellants.
    Submitted May 18, 1981;
    decided June 4, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 11, p 43; § 43, pp 169-171; § 46, p 204).


text:
    New York State Higher Education Assistance Corporation, Respondent, v Harry G. Robbins, Appellant.
    Submitted May 18, 1981;
    decided June 4, 1981
   Motion to vacate the Court of Appeals order of dismissal dated April 16, 1981 denied. [See 53 NY2d 839.]


text:
    In the Matter of Floyd J. Thayer, Appellant, v City of Plattsburgh, Respondent.
    Submitted May 4, 1981;
    decided June 4, 1981
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the denial of petitioner’s motion for an order adjudging respondent in contempt of court, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    In the Matter of John E. Williams, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted May 11, 1981;
    decided June 4, 1981
   Motion to vacate the Court of Appeals order of dismissal dated April 20, 1981 denied. [See 53 NY2d 839.]


author:
      Per Curiam.
     Meyer, J.

text:
    Harry Klein, Appellant, v City of Yonkers, Respondent.
    Argued April 3,1981;
    decided June 9, 1981

      APPEARANCES OF COUNSEL

      Ellen Lefkowitz for appellant.

      Arthur J. Doran, Jr., Corporation Counsel (Howard M. Schupak and Dora M. Kane of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Section 50-i of the General Municipal Law requires that an action against a municipality for personal injury or property damage be commenced within one year and 90 days after “the happening of the event upon which the claim is based.” In Erickson v Town of Henderson (30 AD2d 282), a wrongful death case, this language was held to bar an action commenced more than one year and 90 days after the happening of the event causing death (30 AD2d, at p 286) even though the court acknowledged that under an accrual rule the action would have been timely (30 AD2d, at p 284). Since Erickson, courts have uniformly concluded that'the limitation period begins to run upon the happening of the event, irrespective of when the action accrued (e.g., Doyle v 800, Inc., 72 AD2d 761; Phillips v Village of Waterford, 48 AD2d 745, 746; Cota v Madison Cent. School Dist., 89 Misc 2d 646, affd 62 AD2d 1083). In our view, the plain language of the statute admits of no other interpretation. If the statute is to be amended, that must be accomplished by legislative action and not judicial fiat.

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

Meyer, J.

(dissenting). I would reverse the order of the Appellate Division and reinstate the order of Special Term denying defendant’s motion under CPLR 3211 (subd [a], pars 5, 7).

The complaint alleges that in 1964 defendant city negligently issued a certificate of occupancy for a multiple residence located at 197 Ravine Avenue, that the building did not conform to the filed plans or to the ordinances of the city in that it was built with defective and improper fire stops, that in reliance on the certificate of occupancy plaintiff purchased the building in February, 1969, that on January 15, 1973 fire destroyed the building without any fault of plaintiff, that a notice of claim was filed on April 11, 1973 and that more than 30 days had elapsed after the filing of the claim without any payment being made by the city.

Though Rottkamp v Young (21 AD2d 373, affd on opn at Appellate Division 15 NY2d 831) holds that, because the decision whether to do so is discretionary and quasi-judicial, no action will lie for refusal to issue a building permit, that holding does not bar the instant action. The distinguishing feature is that we deal in this action with a certificate of occupancy for a multiple residence, as to which the Legislature has expressly provided, in subdivision 5 of section 302 of the Multiple Residence Law that “A certificate, a record in the department, or a statement signed by the head of the department that a certificate has been issued, may be relied upon by every person who in good faith purchases a multiple dwelling”. I agree with the holdings of the Appellate Division, Fourth Department, in Gordon v Holt (65 AD2d 344, mot for lv to app den 47 NY2d 710) and Sexstone v City of Rochester (32 AD2d 737), and of the Second Department in Doyle v 800, Inc. (72 AD2d 761,762) that a municipality may in light of the Multiple Residence Law provision be held responsible for its negligent misrepresentation to a plaintiff who establishes his reliance in good faith on the certificate of occupancy. Accordingly, the first cause of action is valid and, that being so, the complaint could not be dismissed under CPLR 3211 (subd [a], par 7) (Siegel, New York Practice, § 265; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.38).

Nor can it properly be dismissed under subdivision 5 on Statute of Limitations grounds. The Appellate Division held that the word “event” as used in the clause “the happening of the event upon which the claim is based” contained in section 50-i (subd 1, par c) of the General Municipal Law, must “be deemed to be the issuance of the certificate of occupancy in July, 1964, not the destruction of the building by fire in 1973”. It reached that conclusion on the basis of its own earlier decision in Doyle v 800, Inc. (72 AD2d 761, supra), which in turn relied upon the review by the Fourth Department in Erickson v Town of Henderson (30 AD2d 282) of the legislative history of the act (L 1959, ch 788) by which section 50-i was added to the General Municipal Law. Simply put, the Erickson review of legislative history was not addressed to the instant question and Doyle’s use of it without closer evaluation of the issue in Erickson is clearly erroneous. Unless legislative intent is to be changed by judicial fiat, intentional or unintentional, Doyle’s error should now be corrected by a holding that, as the Legislature clearly intended, the word “event” in the quoted clause is synonymous with “accident” and limitations, therefore, do not begin to run until “the negligent act produced injury to the plaintiffs” (Sexstone v City of Rochester, supra).

Under consideration in Erickson was the fact that a cause of action for wrongful death did not under prior law “arise” or “accrue” until appointment of an estate representative (Christian v Village of Herkimer, 5 AD2d 62, affd 5 NY2d 818). Erickson did not define what was meant by the phrase “the happening of the event upon which the claim is based.” Rather it noted, quoting from the legislative note set forth at page 21 of the Report of the Joint Legislative Committee on Municipal Tort Liability (NY Legis Doc, 1959, No. 36), that while the period of limitations as to all municipalities had been one year, under some of the governing statutes the period ran from the happening of the event and under others from accrual of the cause of action, and that the Legislature’s purpose was to eliminate uncertainty by making the period run in all cases from the happening of the event, that being the uniform interpretation of “accrual of the cause of action” in any event. The effect was to reduce the period of limitations as to municipalities previously governed by “accrual” because under the revision proposed the limitations period would begin to run with the injury-causing event and would not be tolled by the time necessary to obtain appointment of a representative. The result reached in Erickson was fully consistent with the legislative intent evidenced by the Joint Committee Report, but was in no way dependent upon a definition of the word “event”, nor was there any need in that case to define that word, since the action was not begun until five days short of the second anniversary of decedent’s death.

The result reached in Doyle and in the instant case is, however, wholly inconsistent with the legislative understanding of the way in which.the word “event” was used. The study upon which the proposed new section 50-i was based appears in the report beginning at page 51 and contains irrefutable evidence that the words “happening of the event” were used to mean the injury-producing event, i.e., the time of the accident, not of the negligent act. Thus the conclusion of the study (at pp 60-62) stated that as to the time within which an action must be brought the common provision was one year but that period ran variously from (a) the date of the accident, (b) the accrual of the cause of action, or (c) the filing of a notice of claim. It then noted that “such decisional law as exists uniformly holds that the provision ‘from the date the cause of action accrued’ is to be interpreted as ‘from the date of the accident’ ” (at pp 61; emphasis supplied), that under subdivision 5 of section 50-e of the General Municipal Law application for permission to file a late claim “must be made ‘within the period of one year after the happening of the event upon which the claim is based’, i.e., from the time of the accident” (at p 61; emphasis supplied), and that the time to make the latter application “begins to run, therefore, at the same time as does the one year limitation upon the time in which an action must be brought” (id.). Thus, in extending the period to one year and 90 days the Legislature was allowing for the longest notice of claim period provided for in any statute, but providing for a uniform starting time in order to obviate the confusion in prior statutory provisions (id., at pp 13, 17, 60-62), that starting time being the date of the accident (accord Phillips v Village of Waterford, 48 AD2d 745, 746 [“the happening of the event causing the damage”] ; Cota v Madison Cent. School Dish, 89 Misc 2d 646, 648, affd 62 AD2d 1083 [“The Legislature intended the time limitation * * * to commence * * * when the accident occurred”]).

Nor can it properly be argued that the legislative history should not be referred to because the word “event” is unambiguous. In the first place, the word is modified by the phrase “upon which the claim is based.” Since there can be no claim without both breach of duty and injury, “the event” (emphasis supplied) upon which a claim is based is, logically, the time of the injury or accident, as the Legislature intended, and as we, in other contexts have held (Bloomfield Bldg. Wreckers v City of Troy, 41 NY2d 1102, 1103 [“the cause or causes of action, if any, accrued at the time of the sustaining of injury”]; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300 [“It is only the injury to person or property arising from negligence which constitutes an invasion of personal right, protected by law, and, therefore, an actionable wrong”] [emphasis in original]). Ignoring the article “the”, one could perhaps argue that “the event” is the combination of breach and injury, but by no stretch of logic can it be said that “event” means only and unambiguously the breach of duty without more. Moreover, as we held in New York State Bankers Assn. v Albright (38 NY2d 430, 436): “It has been said often, but with less than meticulous analysis, that an ‘unambiguous’ statute permits of no inquiry into legislative intention (see, e.g., McCluskey v Cromwell, 11 NY 593, 601; accord, e.g., Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 304, app dsmd 368 US 12; see, generally, McKinney’s Cons Laws of NY, Book 1, Statutes, § 120). Absence of facial ambiguity is, however, rarely, if ever, conclusive. The words men use are never absolutely certain in meaning; the limitations of finite man and the even greater limitations of his language see to that. Inquiry into the meaning of statutes is never foreclosed at the threshold; what happens is that often the inquiry into intention results in the conclusion that either there is no ambiguity in the statute, or that for policy or other reasons the prior history will be rejected in favor of the purportedly explicit statement of the statute (see, e.g., Matter of Barton v Lavine, 38 NY2d 785). Then it is often said with more pious solemnity than accuracy, that the clarity of the statute precludes inquiry into the antecedent legislative history.” Thus, legislative history may be used when it appears that the literal language of the statute contravenes the legislative intent or leads to an unreasonable or absurd result (Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298, 302; United States v American Trucking Assns., 310 US 534, 543-544).

Here, as Justice Gagliardi noted in denying the motion, to hold plaintiff’s action barred produces the absurd result “that plaintiff’s cause of action was time barred years before he became the owner of the apartment building, years before the fire occurred, and that the cause of action existed only at a time when plaintiff did not have any standing to bring it.” As former Chief Judge Breitel observed, dissenting from the now overruled majority decision in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, 346-347), “[I]t is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one. In those torts which give rise to a cause of action even without or before palpable damage, the limitations run from the commission of the wrong but there is also instanter a cause of action accrued as in libel, trespass and the like”.

Finally, it will not do to argue that to count the limitations period from the date of injury exposes the municipality to liability which may ripen into injury many years after the injury-causing breach of duty. Limitation periods are established only by legislative act. Too short a period may be unreasonable (see United States v Kubrick, 444 US 111; Urie v Thompson, 337 US 163, 169-170; Fernandi v Strully, 35 NJ 434; Developments in the Law — Statutes of Limitations, 63 Harv L Rev 1177,1200), but otherwise the length of the period (and consequent duration of exposure) is a matter of policy for the Legislature to determine and into the wisdom of which we cannot inquire. Here, as the legislative history above discussed makes clear, the policy determination made was that an action was timely if commenced within one year and 90 days “ ‘after the happening of the event on which the claim is based/ i.e., from the time of the accident” (NY Legis Doc, 1959, No. 36, p 61). To hold that the period began at the earlier time of the breach of duty is to flout the policy determination made by the Legislature as shown by the foregoing history. Moreover, consistency with the underlying legislative purpose to provide for a person injured by municipal wrongdoing a cause of action requires that any ambiguity in the word “event” be construed in favor of the injured person (see Fernandi v Strully, supra, at p 440).

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

Order affirmed, with costs.


text:
    Aaron Nussbaum, on Behalf of Himself and All Others Similarly Situated, Appellant, v New York City Employees’ Retirement System, Respondent.
    Argued May 4, 1981;
    decided June 9, 1981

      APPEARANCES OF COUNSEL

      Aaron Nussbaum, pro se, and Murray Rudman for Aaron Nussbaum, appellant.

      Allen G. Schwartz, Corporation Counsel (Pamela Seider Dolgow and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant, in accordance with this memorandum, and, as so modified, affirmed.

For the reasons stated by the Appellate Division, plaintiff was not unconstitutionally denied vested pension rights by legislation which created an additional, optional pension plan. Plaintiff could have remained in the existing plan without any of his rights being impaired. It was his decision not to do so that caused the alleged change in his rights. Instead of dismissing the complaint in this declaratory judgment action, however, the Appellate Division should have declared the rights of the parties. Accordingly, the order of that court should be modified to declare the challenged legislation constitutional.

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

Order modified, etc.


text:
    Robert Pfeiffer, Respondent-Appellant, v Patricia Byrne, Appellant-Respondent.
    Submitted April 27, 1981;
    decided June 9, 1981

      APPEARANCES OF COUNSEL

      J. Jeffrey Weisenfeld for respondent-appellant.

      Marcia Robinson Lowry for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

The appeal by Patricia Byrne, taken as of right, should be dismissed, without costs, upon the ground that the order of the Appellate Division does not finally determine the proceeding within the meaning of the Constitution. (CPLR 5601, subd [a].)

On the appeal by Robert Pfeiffer, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs, and the question certified answered in the affirmative.

The Family Court has the discretionary power to award counsel fees to the attorney for the mother in a filiation proceeding once an order of filiation is made (Family Ct Act, § 536), including an award for counsel fees incurred upon a motion seeking support on behalf of a child made within that proceeding. Since an order of filiation was made, the Family Court was statutorily empowered to make an award of counsel fees so long as it did not abuse its discretion in doing so. We cannot say, as a matter of law, that the Family Court abused its discretion in awarding counsel fees for legal services rendered to Patricia Byrne in connection with the filiation and child support aspects of the proceeding in issue. The fact that Patricia Byrne had absconded with the child does not, in and of itself, make such award an abuse of discretion as a matter of law.

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

On appeal by Patricia Byrne: Appeal taken as of right dismissed, without costs.

On appeal by Robert Pfeiffer: Order, insofar as appealed from, affirmed, without costs. Question certified answered in the affirmative.


text:
    In the Matter of the City of New York, Respondent-Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park Urban Renewal Project II, Stage III within the Area Bounded by 15th Avenue and Other Streets in the Borough of Queens. Leo Marinello et al., Appellants-Respondents.
    Argued April 29,1981;
    decided June 9, 1981

      APPEARANCES OF COUNSEL

      Michael J. Greco, Thomas R. Newman, Ignatius John Melito and Louis G. Adolf sen for appellants-respondents.

      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and Leonard Koerner of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

On the appeal by the City of New York, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the matter remitted to the Apellate Division, Second Department, for a review of the facts.

Special Term awarded claimants a 5% value increment for plottage. The court noted that while the customary award for plottage is 10%, a lesser award was appropriate here because this parcel was so large that it was nearing the point of “maximum utility” and its value as an aggregate of lots was only slightly greater than the sum of the values of the individual lots it contained. The Appellate Division held that Special Term’s 5 % award was erroneous as a matter of law and modified by increasing the plottage award on the entire parcel on the basis of a purported “concession” by the city.

We cannot agree that the city conceded that a 10% value increment for plottage should be applied to the entire parcel. Rather, the city’s appraiser stated that a 10% increment would be appropriate only if applied to the “net acreage” remaining after a deduction for streets which the appraiser viewed as necessary for development. The city’s concession was predicated upon its appraiser’s assumption that only such “net acreage” was entitled to a “plottage” award. This being so, it was error for the court below to increase the plottage award for the entire parcel from 5% to 10% on the basis of this “concession”.

Nor do we believe that Special Term’s award of a 5% increment for plottage on the entire parcel was erroneous as a matter of law. Hence, the Appellate Division’s modification of that award “on the law” was improper. However, inasmuch as this court has no power to determine whether, as a factual matter, Special Term erred in awarding a 5 % increment, we must remit the matter to the Appellate Division for a review of the facts. (CPLR 5613.)

The appeal taken as of right by claimants should be dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

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

On claimants’ appeal: Appeal dismissed, without costs.

On city’s appeal: Order, insofar as appealed from, reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Louis Roney, Appellant, v Leonore Janis, Respondent.
    Argued May 5, 1981;
    decided June 9, 1981

      APPEARANCES OF COUNSEL

      Walter S. Jennings and Lindsay J. Rosenberg for appellant.

      Alfred J. Swan and Hewitt L. Rubel for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s complaint fails to state a cause of action for fraud and deceit. As the Appellate Division noted, the alleged misrepresentations upon which plaintiff bases his claim of fraud are nothing more than the usual expressions of hope and statements of expectation made by one about to be married. Plaintiff’s complaint makes no factual assertions which, if proven, could lead a trier of fact to conclude otherwise. The mere fact that the expectations of the parties were eventually frustrated is an insufficient base upon which to predicate a claim of fraud.

Having determined that plaintiff’s complaint states no cause of action, we need not address the other grounds for dismissal urged by defendant.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v James Dunn, Appellant.
    Submitted. May 4, 1981;
    decided June 9, 1981
   Motion to vacate the Court of Appeals order of dismissal dated March 26, 1981 denied. [See 53 NY2d 704.]


text:
    In the Matter of Eden Park Health Services, Inc., et al., Appellants, v Robert P. Whalen, as Commissioner of Health of the State of New York, Respondent.
    Submitted May 26, 1981;
    decided June 9, 1981
   Motion to dismiss the appeal denied.


text:
    Fink, Weinberger, Fredman, Berman and Lowell, P. C., Respondent, v Milton Petrides, Appellant.
    Decided June 9, 1981
   Appeal dismissed, without costs, by the Court of Appeals sim sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Meyer taking no part.


text:
    In the Matter of the Claim of Lillie M. Griffin, Respondent, v Eastman Kodak Company, Inc., Appellant. Workers’ Compensation Board, Respondent.

      Submitted April 20, 1981;
    decided June 9, 1981
   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 (see Cohen and Karger, Powers of the New York Court of Appeals, § 12, p 56).


text:
    Hartwood Syndicate, Inc., Appellant, v Passaic Valley Council, Boy Scouts of America, Respondent.
    Submitted April 27,1981;
    decided June 9, 1981
   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.

Chief Judge Cooke taking no part.


text:
    The People of the State of New York, Respondent, v Steven Johnson, Appellant.
    Submitted May 4,1981;
    decided June 9, 1981
   Motion to vacate the Court of Appeals order of dismissal dated April 20, 1981 denied. [See 53 NY2d 839.]


text:
    The People of the State of New York, Respondent, v Richard P. Lucas, Appellant.
    Submitted April 27,1981;
    decided June 9, 1981
   (A) Motion by respondent for reargument or clarification denied.

(B) Cross motion by appellant for clarification denied. [See 53 NY2d 678.]


text:
    In the Matter of McLean Trucking Company, Appellant, v State Human Rights Appeal Board et al., Respondent.
    Submitted May 18,1981;
    decided June 9, 1981
   Motion to dismiss appeal as against respondent Wayne Travers granted and the appeal as against said respondent dismissed, without costs, upon the ground that there was no dissent at the Appellate Division in the proceeding relating to Wayne Travers.


text:
    In the Matter of Richard L. Woll et al., Appellants, v Erie County Legislature et al., Respondents.
    Argued June 9, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Dennis E. Wood and Daniel J. Ward for appellants.

      Robert E. Casey, Jr., County Attorney (Justyn E. Miller of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memórandum at the Appellate Division.

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


text:
    The People of the State of New York, Respondent, v Richard Bassik, Appellant.
    Argued May 8, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Edward M. Chikofsky for appellant.

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in refusing defendant’s request to have the jury instructed concerning the possibility of his being civilly committed if found not guilty by reason of insanity. At the time of this trial it was well settled that the defendant was not entitled to such a charge (People v Adams, 26 NY2d 129, 138). The legislative change in this rule (CPL 300.10, subd 3) did not go into effect until September 1, 1980 (L 1980, ch 548), after this trial had concluded.

We have considered the defendant’s remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Central School District No. 1 of the Towns of Malone, Bangor, Burke, Constable, Bellmont, Westville, Brandon, Duane and Franklin, Appellant, v Perfetto and Whalen Construction Corp. et al., Defendants, and Quentin L. Reutershan et al., Respondents. (And Another Action.)
    Decided June 11, 1981

      APPEARANCES OF COUNSEL

      Michael J. Cunningham for appellant.

      Jeremiah M. Hayes for Quentin L. Reutershan, respondent in first action.

      George K. Myrus for Quentin L. Reutershan, respondent in second action.

      Charles M. Manheim for Max 0. Urbahn, respondent,
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion in granting the motions to dismiss the action as against defendants Urbahn, Reutershan, Koppers Company, Inc., and Aetna Casualty and Surety Company pursuant to CPLR 3216 (Pennisi v City of New York, 53 NY2d 779).

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


text:
    In the Matter of Joseph Zurlo, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued May 8, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Emanuel Tobachnik, Bernard F. Ashe and Rocco Solimando for appellant.

      James H. Whitney, Robert D. Stone and Jean M. Coon for Gordon M. Ambach, respondent.

      Thomas C. Mack for Board of Education of Medina Central School District, respondent.
   OPINION OF THE COURT

Memorandum.

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

As a physical education teacher whose full-time position was abolished, petitioner was entitled to preference for appointment to a vacancy thereafter occurring in a similar position whether part time or full time (Education Law, § 2510, subd 3). He was accorded that preference by being given a half-time physical education position. But the limitations in subdivision 1 of section 2510 with respect to abolishing, a position and creating another for performance of similar duties, and in subdivision 3 of that section to a position consolidated with another position without creating a new position, refer in each instance to the terminated teacher’s position. Here there has been consolidation not of petitioner’s former position, but of the position which became vacant when another teacher resigned at the end of the year after petitioner’s original position was abolished, and of the half-time position to which petitioner had been appointed, to create two three-quarter time positions.

Section 2503 (subd 5) empowers the board to “create, abolish, maintain and consolidate such positions * * ' * as, in its judgment, may be necessary for the proper and efficient administration of its work”. Since the consolidation of positions to which petitioner objects does not, on the facts of this case, violate section 2510, we need not consider further the relative priority of the two sections. Nor, the matter being one entrusted by the Legislature to the judgment of the board, should we, as petitioner would have us do, second guess the board’s decision. It is enough that, as shown by the facts that petitioner was retained at half time, has now been increased to three-quarter time, and remains on the preferred list for any full-time vacancy, there is no basis for finding that the board acted in bad faith.

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 the Arbitration between Neirs-Folkes, Inc., Respondent, and Drake Insurance Company of New York, Appellant.
    Argued May 6, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Harold F. McGuire, Jr., Walter Barthold and Arthur V. Nealon for appellant.

      Martin I. Shelton and Dean G. Yuzek for respondent.
   OPINION OF THE COURT

Memorandum.

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

On this record, it is unnecessary to reach appellant’s argument that it would violate public policy to uphold the award of damages because petitioner was not licensed to act as an insurance agent in New York. The licensing issue was raised before the arbitration panel, and whether petitioner had indeed acted as an insurance agent in the State was a question for that tribunal to resolve. As evidenced by the dissenting arbitrator’s opinion, the majority of the arbitrators must have considered the question and determined that petitioner had not acted as an insurance agent in this State. This court may not now review that determination for legal or factual error.

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 the Arbitration between Dobbs Ferry Union Free School District, Appellant, and Dobbs Ferry United Teachers et al., Respondents.
    Argued May 8, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Raymond G. Kuntz for appellant.

      James J. Brady and James R. Sandner for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 924; see, also, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7-8).

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


text:
    Vito Servido, Appellant, v Superintendent of Insurance, as Rehabilitator of Allcity Insurance Company, Respondent.
    Argued April 29, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Bertram Herman for appellant.

      Philip Hoffer, Leonard H. Minches and Isabella Natale for respondent.

      Robert Abrams, Attorney-General (Daniel M. Cohen and Shirley Adelson Siegel of counsel), for Superintendent of Insurance, amicus curiae.

   OPINION OF THE COURT

Order reversed, with costs, for reasons stated in the dissenting opinion by Justice Joseph P. Sullivan at the Appellate Division (77 AD2d 70, 76-86) and case remitted to Supreme Court, New York County, for determination of benefits claimed.

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

Meyer, J.

(concurring). There is no question (indeed the dissenters below, whose point of view is now accepted, conceded), that in terms of the policies upon which the No-Fault Insurance Law was based the award of first-party benefits to petitioner is aberrational, for the holding now made means that the number of persons owning uninsured vehicles who can collect first-party benefits under one insurance policy is limited only by the number of persons related to the policyholder who can be found to be regular residents of the policyholder’s household. To provide first-party benefits to the owner of a vehicle who fails to insure at all because he happens to be related to and reside in the household of an automobile owner who has insured a separate vehicle is so contrary to the accepted principles of insurance upon which no-fault is grounded that the Legislature, had the issue been brought to its attention, clearly would have specifically excluded it.

Based on the unreasonableness of the result, the policies underlying enactment of the No-Fault Insurance Law, and the powers granted the Superintendent by section 21 of the Insurance Law to interpret the statute in terms of the policies upon which its enactment was based, I would, therefore, have no difficulty voting to affirm had the accident in which petitioner was involved occurred prior to December 1, 1977, the effective date of chapter 892 of the Laws of 1977. However by the amendment, enacted by that chapter, of subdivision 1 of section 672 of the Insurance Law to exclude from eligibility for first-party benefits “occupants of a motorcycle” who otherwise were eligible for such benefits (because the statutory definition of motor vehicle excluded motorcycles), the Legislature has, in effect, interpreted the exclusions spelled out in the statute as a limitation upon the Superintendent’s power, through interpretation of the statute in light of its policy, to imply additional exclusions. That fact and the rule enunciated by us in Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451, 459) constrain me to join my colleagues in voting for reversal. I write not only to give the reasons for my vote but in order to suggest to the Superintendent and the Legislature the desirability of prompt amendment of the law to make clear that in the future first-party benefits need be paid only for loss arising out of the use or operation of an uninsured motor vehicle not owned by the recipient of the first-party benefits.

Order reversed, etc.


text:
    Richard Lattanzi et al., Respondents, v State of New York et al., Appellants.
    (Claim No. 58288.)
    Argued May 8, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz, Shirley AdelsonSiegel and Dennis Hurley of counsel), for appellants.

      Norman H. Daehs and Beth J. Goldmacher for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Michael E. Sweeney at the Appellate Division (74 AD2d 378).

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


text:
    The People of the State of New York, Respondent, v Carlos Castro, Appellant.
    Decided June 11, 1981

      APPEARANCES OF COUNSEL

      A. Isadore Eibel for appellant.

      Robert M. Morgenthau, District Attorney (Diana L. W. Fernandez of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed. The police had reasonable suspicion to warrant the stop which was reasonably related in scope and intensity to the circumstances surrounding the encounter. Based on reasonable suspicion, the police were entitled to neutralize defendant for their own protection as well as that of bystanders (People v Chestnut, 51 NY2d 14).

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


text:
    The People of the State of New York, Respondent, v Edward Stahl, Appellant.
    Argued May 6, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Nathan R. Sobel and David Lenefsky for appellant.

      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There was sufficient evidence to sustain the jury verdict on both counts. The contention that the judgment of conviction must be set aside for failure of proof that the conversation to which the evasive answer was addressed did in fact occur was not preserved for appellate review in consequence of the absence of specific reference to the asserted deficiency as a basis for the general motion for a trial order of dismissal (People v Cona, 49 NY2d 26, 33, n 2). Nor was any protest registered concerning the trial court’s omission to charge the jury with respect to the necessity for such proof. Indeed, this contention appears to have first been advanced on defendant’s behalf on the motion for reargument in the Appellate Division.

We cannot say that it was error to refuse the offer of proof made by defendant with respect to the testimony of the proposed judicial witness.

The contention that the verdicts of the jury were “repugnant” was not preserved for our review in consequence of the failure to register any protest concerning this issue prior to the discharge of the jury when the infirmity in the verdicts, if any, might have been remedied by resubmission to the jury for reconsideration of its verdicts (cf. People v Bruckman, 46 NY2d 1020).

We have examined appellant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Metropolitan Life Insurance Company, Appellant, v Tax Commission of the City of New York et al., Respondents.
    Argued May 6, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Sol Pottish for appellant.

      Allen G. Schwartz, Corporation Counsel (Stanley Buchsbaum and Edith I. Spivack of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, First Department, should be reversed, with costs, and the proceeding remitted to that court for determination of the facts.

“The determination of market value essentially is a question of fact” (Grant v Srogi, 52 NY2d 496, 510). Similarly, the subsidiary question of whether capitalization of net income premised upon a single rather than a multiple tenant basis more accurately reflected the market value of the buildings in question was one of fact. That in mind, on the record here, it cannot be said that the determination of value by the trial court was erroneous as a matter of law.

We also note that, while the Appellate Division, no doubt because of the otherwise complete record here, elected not to remand the case to Special Term for its failure to have followed the injunction of subdivision 2 of section 720 of the Real Property Tax Law, ordinarily it is preferable that nisi prius comply with the requirements of that statute (cf. Lord v State of New York, 48 NY2d 711).

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

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


text:
    The People of the State of New York, Respondent, v William Waymer, Appellant.
    Argued May 8, 1981;
    decided June 11, 1981

      APPEARANCES OF COUNSEL

      Henriette D. Hoffman and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the second confession should have been suppressed as the tainted fruit of the first (see People v Chappie, 38 NY2d 112) must be rejected. Custody is a factual question (see, e.g., People v Albro, 52 NY2d 619). But Criminal Term, in suppressing the first statement, based its decision solely on “the interest [s] of justice”. While it, of course, is possible that the court thereby intended to indicate that it had made a factual finding to that effect, it did not say so. Absent such an express finding, there was no basis for concluding that the Miranda warnings were mandated until the defendant had been placed under arrest and the second interrogation commenced (People v Yukl, 26 NY2d 585), at which time, concededly they were administered.

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

Order affirmed in a memorandum.


text:
    Dobess Realty Cobp. et al., Plaintiffs, and 137th Street Associates et al., Appellants, v City of New York et al., Respondents. (Action No. 1.) (And Five Additional Actions.)

      Submitted May 18,1981;
    decided June 11, 1981
   Motion to dismiss the appeals taken against the City of New York granted and the appeals dismissed as against the City of New York, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order insofar as it unanimously affirmed the judgments in favor of the City of New York.


text:
    Nassau Chapter of the Civil Service Employees Association, Inc., Appellant, v County of Nassau, Respondent.
    Submitted June 8, 1981;
    decided June 11, 1981
   Motion to vacate the court of appeals order of dismissal dated May 21, 1981 granted. [See 53 NY2d 940.]


text:
    Joseph O’Heany, Appellant, v Gratia O’Heany, Respondent.
    Decided June 11, 1981
   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, § 41).


text:
    In the Matter of Carl R. Scacchetti, Jr.
    Submitted June 10, 1981;
    decided June 11, 1981
   Honorable Carl R. Scacchetti, Jr., having been convicted in the United States District Court for the Western District of New York, the March 28, 1980 suspension by this court from his office of Judge of the City Court of the City of Rochester, New York, is continued, on this court’s own motion and on the submissions by the parties, and it shall be without pay, effective immediately pursuant to article VI (§ 22, subds f, g) of the New York State Constitution and section 44 (subd 8, pars [b], [c]) of the Judiciary Law. [See 49 NY2d 890.]


text:
    Scarburgh Company, Inc., Appellant, v American Manufacturers Mutual Insurance Company, Respondent.
    Submitted May 11,1981;
    decided June 11, 1981
   ■ Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the orders to reopen the trial and to amend the amended complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion, insofar as it otherwise seeks leave to appeal, etc., denied. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    Margaret R. Stillman, Appellant, v John S. Stillman, Respondent.
    Submitted June 8, 1981;
    decided June 11, 1981
   Motion for a stay granted to the extend that, while arbitration may proceed, announcement of any arbitration award is stayed pending determination of the appeal herein.


author: Chief Judge Cooke.

text:
    Vivian G. Schauer, Plaintiff, v Patrick J. Joyce et al., Defendants and Third-Party Plaintiffs-Appellants. Thomas W. Gent, Jr., et al., Third-Party Defendants-Respondents.
    Argued September 1, 1981;
    decided October 22, 1981

      POINTS OF COUNSEL

      Hugh C. Humphreys for defendants and third-party plaintiffs-appellants.
    I. Gent, as a successive and independent tort-feasor, caused at least part of the same damage to plaintiff as plaintiff alleges was suffered by her on account of Joyce’s conduct. (Dole v Dow Chem. Co., 30 NY2d 143; McMahon v Butler, 73 AD2d 197; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267.) II. No show of privity or an attorney-client relationship is required in order for Joyce to assert a third-party claim against Gent. (Taft v Shaffer Trucking, 52 AD2d 255.) III. The third-party complaint set forth a sufficient cause of action.
      (Robinson v Binghamton Constr. Co., 277 App Div 468; Hobbs v Scorse, 59 AD2d 1037.) IV. A third-party claim for contribution is the appropriate procedure for Joyce to follow in attempting to reduce his liability. (Lipson v Gewirtz, 70 Misc 2d 599; Addiego v Interboro Gen. Hosp., 81 Misc 2d 96.)

      Paul C. Gouldin for third-party defendants-respondents.
    I. A third-party complaint sounding only in negligence does not state a cause of action in favor of third-party plaintiff against an attorney when the third-party complaint alleges no attorney-client relationship or privity of contract with third-party plaintiff and no fraud or collusion on the part of said attorney. (Savings Bank v Ward, 100 US 195; Drago v Buonagurio, 46 NY2d 778; Gifford v Harley, 62 AD2d 5; Hahn v Wylie, 54 AD2d 629; Victor v Goldman, 74 Misc 2d 685, 43 AD2d 1021; Joffe v Rubenstein, 24 AD2d 752; Maneri v Amodeo, 38 Misc 2d 190; D. & C. Textile Corp. v Rudin, 41 Misc 2d 916; Hakala v Van Schaick, 171 Misc 418.) II. A third-party complaint under the facts here presented does not give to third-party plaintiff a cause of action for contribution, on the basis of the doctrine enunciated in Dole v Dow Chem. Co. in favor of third-party plaintiff against said attorney. (Rogers v Dorchester Assoc., 32 NY2d 553; Sage v Hale, 80 Misc 2d 812; Addiego v Interboro Gen. Hosp., 81 Misc 2d 96; McMahon v Butler, 73 AD2d 197; North Colonie Cent. School Dist. v MacFarland Constr. Co., 60 AD2d 685; Wiseman v 37k Realty Corp., 54 AD2d 119; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267; Coffey v Flower City Carting & Excavating Co., 2 AD2d 191, 2 NY2d 898; Zucchelli v City Constr. Co., 286 App Div 842, 4 NY2d 52; Wilmot v State of New York, 32 NY2d 164.)
   OPINION OF THE COURT

Chief Judge Cooke.

In this case, the court must decide whether appellant, a lawyer being sued by a former client for malpractice, properly brought a third-party claim for contribution against respondent, another attorney who subsequently represented the client in the same matter. It is held that appellant’s third-party claim is sufficient to withstand a motion to dismiss.

Vivian G. Schauer retained lawyer Patrick J. Joyce, the appellant, in November, 1975 to represent her in a matrimonial action. Joyce, on behalf of Mrs. Schauer, obtained from Supreme Court in January, 1976 a divorce judgment by default that included an award of $200 per week in alimony, counsel fees and possession of the marital residence. No alimony, however, was ever received by Mrs. Schauer under this decree. In fact, Mr. Schauer, who had been living in Michigan at the time of the divorce judgment, moved to vacate those parts of the judgment concerning alimony, counsel fees, and possession of the marital residence on the ground that the affidavit of regularity submitted in support of the default judgment falsely stated that he had not appeared in the action. Supreme Court granted Mr. Schauer’s motion in April, 1977, and transferred jurisdiction over these matters to the Delaware County Family Court. Soon thereafter, Mrs. Schauer discharged Joyce and retained Thomas W. Gent, Jr., to represent her in the matrimonial matter. Through Gent’s efforts, she began receiving support payments from her former husband in November, 1977. In January, 1978, Mrs. Schauer began a malpractice action against Joyce, retaining another attorney not associated with either Joyce or Gent. Mrs. Schauer alleged that Joyce caused her to lose alimony and counsel fees through a variety of actions and omissions, particularly the filing of a false affidavit of regularity with Supreme Court that caused the partial vacatur of the divorce judgment. As a result of Joyce’s malpractice, Mrs. Schauer claimed, she lost $200 per week alimony from December, 1975 to November, 1977, and $75 per week thereafter.

Joyce then brought this third-party action against Gent, alleging that after Gent took over Mrs. Schauer’s case in April, 1977, Gent negligently failed to seek reinstatement of the vacated alimony award or to make any other application to obtain alimony for the period prior to the vacatur. In addition, Joyce alleged, Gent failed to seek a prompt Family Court hearing to obtain prospective alimony payments.

Special Term dismissed Joyce’s third-party complaint for failure to state a cause of action. The Appellate Division affirmed, with two Justices dissenting. For the reasons that follow, the third-party complaint should not have been dismissed.

CPLR 1401, which codified this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), provides that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” The section “applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative, and even intentional tortfeasors” (Siegel, New York Practice, § 172, p 213; see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363).

Respondent Gent maintains that he was not in contractual privity with appellant Joyce and that there is no other basis on which it can be said that he owed a duty to Joyce. This misses the point. The relevant question under CPLR 1401 and Dole is not whether Gent owed a duty to Joyce, but whether Gent and Joyce each owed a duty to Mrs. Schauer, and by breaching their respective duties contributed to her ultimate injuries (e.g., Smith v Sapienza, 52 NY2d 82, 87; Barry v Niagara Frontier Tr. System, 35 NY2d 629, 633; Rogers v Dorchester Assoc., 32 NY2d 553, 564; see, generally, 2A Weinstein-Korn-Miller, NY Civ Prac, pars 1401.10-1401.14). There is no need to search “for the existence of an elusive 'legal relationship’ between the wrongdoers” (Twentieth Ann Report of NY Judicial Conference, 1975, p 216).

It is beyond dispute that Joyce and Gent were each retained by Mrs. Schauer, at different times, in connection with her claim for support. Mrs. Schauer’s complaint against Joyce alleges that Joyce’s malpractice cost her substantial sums of lost alimony and other damages. The question is whether the third-party complaint against Gent alleges negligence by Gent that could have contributed to this loss.

The Appellate Division held that there was nothing alleged that could make Gent even partially liable for Mrs. Schauer’s loss of alimony. This conclusion is erroneous. The pleadings set forth an ample basis for holding that the alleged negligence of both attorneys was responsible for the same injury. The primary injury of which Mrs. Schauer complains is the loss of alimony. She seeks $200 per week to compensate her for the back alimony due under a December, 1975 temporary award and the January, 1976 final judgment but not recovered because of the partial vacatur of the final judgment in April, 1977. She also seeks $200 per week for the period from April, 1977 to November, 1977, after which Mrs. Schauer began receiving support. Finally, she seeks $75 per week for the period beginning November, 1977, which apparently reflects the difference between the vacated judgment and the level of the support she eventually received.

Mrs. Schauer had discharged Joyce in April, 1977. A substantial portion of the damages she claims to have suffered thus occurred after she had replaced Joyce as her attorney with Gent. It may be that the loss of alimony after April, 1977, stemmed from the partial vacatur of the original divorce judgment. But if Gent was negligent in not quickly obtaining a new hearing on alimony and support, as Joyce’s third-party complaint alleges, Gent could be found at least partially responsible for this loss. Likewise, if Gent negligently failed to seek reinstatement of the vacated alimony judgment, as Joyce alleges, he may well be partially responsible for the loss of the alimony that had been due under that judgment prior to its vacatur. In effect, Joyce has raised a claim that Gent, as an independent, successive tort-feasor, has contributed to or aggravated Mrs. Schauer’s injuries. This is clearly the type of claim encompassed by CPLR 1401. That Joyce may raise the defense of Mrs. Schauer’s failure to mitigate damages does not affect his ability to also assert a third-party claim for contribution against Gent for those injuries for which Joyce may be liable to Mrs. Schauer.

In conclusion, both Joyce and Gent may be liable to Mrs. Schauer, if their respective representations of her were negligent, for at least a portion of the same damages claimed by her. Joyce’s third-party complaint for contribution therefore states a valid cause of action and should not have been dismissed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion to dismiss the third-party complaint should be denied.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order reversed, etc.

       Mrs. Schauer alleged as a second cause of action that Joyce’s submission of the false affidavit of regularity was an attempt intentionally to deceive herself and the court and thus subjected Joyce to liability for treble damages pursuant to section 487 of the Judiciary Law. No question concerning this cause of action is involved in this appeal.