text:
    Utica Mutual Insurance Company, Respondent, v Prudential Property and Casualty Insurance Company, Appellant, et al., Defendants.
    Argued March 22, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      James R. McCarl for appellant.

      Bernard J. Sommers and H. W. Bernstein 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 Leon D. Lazer (103 AD2d 60).

We add that Prudential’s argument based upon Warner Hardware Co. v Allstate Ins. Co. (309 Minn 529, 245 NW2d 223) that the risk involved is a general business risk covered by Utica’s policy rather than an automobile risk covered by its policy having been first raised in this court has not been considered by us (see, Telaro v Telaro, 25 NY2d 433, 438). Moreover, on the facts of this case the “complete operation” rule declared in Wagman v American Fid. & Cas. Co. (304 NY 490, 494) is without consequence, the injuries on which the underlying action is predicated having arisen out of and resulted from negligence in the loading of the vehicle insured by Prudential (see, Cosmopolitan Mut. Ins. Co. v Baltimore & Ohio R.R. Co., 18 AD2d 460; Employers Mut. Liab. Ins. Co. v Aetna Cas. & Sur. Co., 7 AD2d 853, lv denied 6 NY2d 705).

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of County of Broome et al., Appellants-Respondents, v Mario M. Cuomo, as Governor of the State of New York, Respondent-Appellant.
    Argued March 21, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      David E. Peebles for appellants-respondents.

      Robert Abrams, Attorney-General (Lew A. Millenbach, Robert Hermann and Peter H. Schiff of counsel), for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (102 AD2d 266).

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


text:
    Robert E. Walsh, Individually and as Administrator of the Estate of Margaret T. Walsh, Deceased, Appellant, v Prudential Insurance Company of America, Respondent.
    Argued March 21, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Christopher Massaroni for appellant.

      George P. McAloon and H. Charles Livingston, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (101 AD2d 988).

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


text:
    The People of the State of New York, Respondent, v Lowell P. Pereau, Jr., Appellant.
    Submitted March 22, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Livingston L. Hatch for appellant.

      John C. McDonald, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for so much of the reasons stated in the memorandum of that court as holds that the jury could infer defendant’s intent to rape from his conduct and the surrounding circumstances (People v Bracey, 41 NY2d 296, 301) and could find that he acted to “carry the project forward within dangerous proximity to the criminal end to be attained” (People v Werblow, 241 NY 55,61). We also agree that it was not error under these circumstances for the trial court to refuse to charge the misdemeanor of coercion in the second degree as a lesser included offense of the felony of coercion in the first degree (People v Glover, 57 NY2d 61; People v Discala, 45 NY 38, 42-43).

The defendant’s other contentions are either unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Schultz Management et al., Appellants, v Board of Standards and Appeals of the City of New York et al., Respondents, and Susan Harman et al., Intervening Respondents.
    Argued March 21, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Owen McGivern, Allan R. Freedman, Marc E. Fleischman and Beth A. Finley for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis, Leonard Koerner, Pamela Seider Dolgow and Howard Weiss of counsel), for respondents.

      Kenneth G. Schwarz for intervening respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (103 AD2d 687).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Cabrini Medical Center, Respondent, v Cesar L. Desina et al., Defendants, and Humphreys & Harding, Inc., Appellants.
    Argued March 19, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      John J. Abberly and Richard Hagouel Langsam for appellants.

      Gregory E. Ronan and Julius L. Schapira for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and arbitration of plaintiff’s claims against defendants-appellants permanently stayed.

In July 1971, plaintiff, Cabrini Medical Center, retained defendants, Humphreys & Harding and Corbetta Construction Company, to serve as contractor and construction manager (the terms were by contract deemed synonymous) for the building of a 16-story addition to Cabrini’s medical complex in Manhattan. Article 7 of their contract stated: “Final payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by the Owner to the Contractor Twenty (20) days after Substantial Completion of the Work * * * provided the Work has then been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect.” On December 20, 1973, the architect issued the certificate of substantial completion, and final payment was made to defendants. On November 22, 1974, plaintiff instructed its architect to release whatever funds had been retained pending completion of punch-list work. By that time a permanent certificate of occupancy had been issued and plaintiff had fully occupied the new facility. The retained funds were released on January 28, 1975.

On May 25, 1983, nearly a decade after final payment, occupancy of the building and release of the retained funds, the present suit was commenced, asserting a single cause of action against defendants for breach of contract based on fraud and negligence in construction of the building. Relying on the fact that masonry repair work was performed on the building in March 1977 and again in October 1981, Special Term denied defendants’ motion to stay arbitration and dismiss the complaint on Statute of Limitations grounds, and granted the alternative relief sought by defendants, compelling the parties to proceed to arbitration. The Appellate Division affirmed. Because plaintiff’s claim accrued prior to May 25, 1977, and is therefore time-barred, we reverse and direct that arbitration be permanently stayed.

A cause of action against a contractor for defects in construction generally accrues upon completion of the actual physical work (see, State of New York v Lundin, 60 NY2d 987). By itself instructing its architect to release all funds payable to defendants, plaintiff here signaled the completion of work under the terms of the contract. Moreover, the issuance of a final certificate of payment by the architect (see, Board of Educ. v Celotex Corp., 58 NY2d 684, affg 88 AD2d 713) and complete occupancy of the building by plaintiff (see, State of New York v Lundin, 60 NY2d 987, 990-991, supra) further indicate that completion occurred prior to May 25, 1977. The repair work performed by defendants’ masonry subcontractor in October 1981 — installation of some eight square feet of back-up concrete block — was at most incidental to construction of the building and cannot serve to extend the accrual date of plaintiff’s cause of action (see, Phillips Constr. Co. v City of New York, 61 NY2d 949, 951; State of New York v Lundin, 60 NY2d 987, 989, supra). Accordingly, plaintiff’s action for breach of contract is barred by the applicable six-year Statute of Limitations.

Plaintiff’s assertions of fraud and negligence contained within its breach of contract claim against defendants cannot serve to extend the Statute of Limitations. Even if a separate cause of action had been stated, plaintiff could not by allegations of fraud that are incidental to its complaint for breach of contract extend the life of its claim (see, Queensbury Union Free School Dist. v Walter Corp., 101 AD2d 992, 993, affd 64 NY2d 964; New York Seven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 1052, affd 61 NY2d 828). While plaintiff invokes the “continuous treatment” doctrine (CPLR 214-a), neither the requisite professional relationship nor a course of “continuous treatment” after January 28,1975 were shown (see, Borgia v City of New York, 12 NY2d 151, 156-157; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 214.22a). Nor is there any indication that plaintiff had a fiduciary relationship with its contractor, so as to bring itself within the equitable estoppel doctrine (see, e.g., Erbe v Lincoln Rochester Trust Co., 13 AD2d 211, appeal dismissed 11 NY2d 754).

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

Order reversed, etc.

       Only so much of the order as denied a permanent stay of arbitration is before us, since the denial of defendants’ motion to dismiss is nonfinal and defendants were not aggrieved by the order insofar as it granted their alternative motion to compel arbitration. An order denying a permanent stay of arbitration is considered a final order in a special proceeding and, as such, is appealable to this court (see, Cohen and Karger, Powers of the New York Court of Appeals § 31, at 129, n 11 [rev ed]). Defendants’ motion having been made under CPLR 7503, a motion to dismiss the complaint under CPLR 3211 would not now be barred by CPLR 3211 (e).


text:
    In the Matter of Thomas RR., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Submitted March 22, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Michael V. Coccoma, County Attorney (Albert E. Clune of counsel), for appellant.

      Richard A. Rothermel, Public Defender, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the adjudication of juvenile delinquency reinstated, and the case remitted to the Appellate Division, Third Department, for consideration of the facts (CPLR 5613).

Respondent, aged 14, allegedly fired a shotgun at three motorcyclists in a field near his home. Following a fact-finding hearing, Family Court determined that he had violated section 265.05 of the Penal Law, which declares that any person under the age of 16 who possesses certain otherwise lawful weapons shall be adjudged a juvenile delinquent. The court rejected respondent’s contention that he should have been subject only to the sanctions of the Environmental Conservation Law (ECL) for having exceeded the scope of his hunting license. The Appellate Division unanimously reversed, concluding that the ECL exclusively governed respondent’s conduct.

Preliminarily, we note that Family Court had jurisdiction to determine whether respondent violated section 265.05 of the Penal Law. Although generally a person cannot be adjudicated a juvenile delinquent unless he has committed an act that would have constituted a crime if performed by an adult (Family Ct Act § 301.2 [1]), section 265.05 of the Penal Law reflects a specific legislative intent to proscribe certain conduct when engaged in by juveniles, and by defining such conduct as juvenile delinquency the Legislature has provided Family Court with appropriate jurisdiction (Family Ct Act § 302.1). On the merits, there is support in the record for the affirmed finding that respondent’s possession of the shotgun, while he was unaccompanied but observable from the house by his mother, was not in compliance with the conditions of his hunting license (ECL 11-0701 [1]; 11-0929 [1]). While the Appellate Division noted that respondent’s conduct could not be the basis for a delinquency determination under Penal Law § 265.05, because he possessed a shotgun, not an air rifle, the statute is not limited to air rifles and includes weapons “in or upon which any loaded or blank cartridges may be used”.

We disagree with the conclusion of the Appellate Division that the sanctions contained in the ECL for violation of a hunting license supersede the provisions of the Penal Law proscribing what would otherwise be criminal conduct. Absent here is any evidence of a legislative intention to make the ECL the exclusive means of punishing such conduct (cf. People v Valenza, 60 NY2d 363, 371). To the contrary, the ECL provides that “[n]o provision or language of the Fish and Wildlife Law [11-0101 et seq.; 13-0101 et seq.] shall be construed as amending, repealing, superseding or limiting any provision of the Penal Law * * * except to the extent that such provision or language is expressly stated to be applicable notwithstanding such law” (ECL 71-0905 [1]). The provision violated by respondent, ECL 11-0701 (1), is expressly stated to be applicable notwithstanding the Penal Law. Thus, so long as a person between the ages of 14 and 16 observes the limitations of his hunting license, including the requirement — breached here — that he be accompanied by a licensed adult, he cannot be prosecuted for what otherwise would subject him to liability under the Penal Law. A juvenile who exceeds the scope of his license, however, is not immune from prosecution under the Penal Law.

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

Order reversed, without costs, adjudication of juvenile delinquency reinstated, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


text:
    Farm Stores, Inc., Appellant, v School Feeding Corp. et al., Respondents.
    Argued March 19, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Irving Levine for appellant.

      Hannah K. Flamenbaum and Donald N. David for respondents.
   OPINION OF THE COURT

Memorandum. •

The order of the Appellate Division, insofar as it modified and, as so modified, affirmed the judgment of Supreme Court entered September 28,1982, should be affirmed for the reasons stated in the opinion by Justice Moses M. Weinstein (102 AD2d 249). We add only that the order of Supreme Court entered January 18, 1983, merely recognized that a statutory stay of the September 28,1982judgment was in effect pursuant to CPLR 5519 (a) (2) in favor of respondent Lifton, and thus vacated the entry of the money judgment against Lifton. As such, this order merely administered the course of the litigation and, therefore, petitioner’s appeal from the Appellate Division order insofar as it affirmed this order should be dismissed for nonfinality.

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

Order affirmed, with costs, insofar as it modified and, as so modified, affirmed the judgment of Supreme Court entered September 28, 1982; and appeal from so much of the order as affirmed the order of Supreme Court entered January 18, 1983 dismissed in a memorandum.


text:
    In the Matter of Horton Memorial Hospital, Inc., Appellant, v New York State Department of Health et al., Respondents.
    Argued March 22, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Robert H. Iseman for appellant.

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

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (101 AD2d 915).

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


text:
    Manhattan Theatre Club, Inc., Appellant, v Bohemian Benevolent and Literary Association of the City of New York, Respondent.
    Argued March 19, 1985;
    decided April 23, 1985

      APPEARANCES OF COUNSEL

      Kevin P. Hughes and Jeffrey S. Klein for appellant.

      John T. Morin and Kevin J. Farrelly for respondent.
   OPINION OF THE COURT

Memorandum.

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

Both parties are not-for-profit corporations.

In May 1979, plaintiff, a lessee of premises owned by defendant, evidenced a desire to renew its lease. Preliminary negotiations evolved into discussions for a proposed sale of the property to plaintiff, which were followed by more extensive negotiations between representatives of the respective parties and their attorneys in efforts to formulate the specific provisions for a contract of sale. Two years later, on June 13,1981, a final draft of the proposed contract of sale was handed to defendant’s president, Henry Yochman, just prior to his attendance at a special meeting of the membership where he was to preside. The contract had been signed by plaintiff’s representative the previous day in Yochman’s absence. Defendant’s attorney asked Yochman to sign on behalf of defendant prior to entering the meeting, assuring him that the contract, though signed, would not be delivered until they had reviewed it further. Yochman then signed. Plaintiff’s attorney was contemporaneously notified by his counterpart of the execution of the contract, but with the caveat that there was “trouble” with approval of the sale and “bad news” for the prospect of an ultimate consummation of the contract.

This contract was never returned to plaintiff’s attorney after the meeting of the membership where strenuous objection to the sale was voiced by a number of those present. Attempts by the parties to reconcile persisting problems were of no avail. On August 6,1981, defendant’s counsel sent a letter stating that no binding agreement had been reached and thereafter returned the deposit which had accompanied the final draft.

Dismissal of the complaint in the ensuing action for specific performance was proper since the circumstances presented here fail to demonstrate the requisite objective manifestation of intent of the parties to enter into a contract (see, Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399-400; Arnold v Gramercy Co., 15 AD2d 762, affd 12 NY2d 687).

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

Order affirmed, with costs, in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Cobleskill Central School District, Appellant, v Harold R. Newman et al., Constituting the Public Employment Relations Board, Respondents, and Cobleskill Teachers Association, Intervenor-Respondent.
    Submitted March 4, 1985;
    decided April 23, 1985
   Motion, insofar as it seeks leave to appeal from the January 11, 1985 order, dismissed upon the; ground that the order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order dated November 5, 1984, denied. Twenty dollars costs and necessary reproduction disbursements to respondent PERB.


text:
    Richard Oelsner, as Administrator of the Estate of Catherine Oelsner, Deceased, Respondent, v State of New York, Appellant.
    Submitted March 18, 1985;
    decided April 23, 1985
   Motion to dismiss the appeal in part denied as unnecessary. Defendant’s appeal from the January 17, 1985 Court of Claims judgment brings up for review only the prior nonfinal Appellate Division order of December 5, 1983 (CPLR 5601 [d]; 5501 [b]; Gilroy v American Broadcasting Co., 46 NY2d 580, 584).


text:
    The People of the State of New York, Respondent, v Craig Crimmins, Appellant.
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Julia Pamela Heit and Kenneth J. Aronson for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The court in submitting the voluntariness of the confession to the jury did not err in refusing to charge that the police had an obligation to let family members or friends communicate with a competent adult in custody (cf. People v Townsend, 33 NY2d 37; People v Bevilacqua, 45 NY2d 508; People v Casassa, 49 NY2d 668; People v Fuschino, 59 NY2d 91). We note that there was no evidence that these persons had retained counsel for the defendant. Nor was there any evidence that the defendant sought the assistance of these individuals or that the police discouraged him from doing so. There was only testimony that certain family members sought unsuccessfully to communicate with the defendant while he was being questioned by the police. Therefore the court’s refusal to give the charge requested by defense counsel did not constitute error.

The defendant also contends that the court erred during the suppression hearing in refusing to make factual findings as to whether the police isolated the defendant from family and friends seeking to communicate with him while he was being questioned. However, the defendant was not prejudiced by the absence of such findings. The suppression court assumed for the purposes of the motion the essential truth of the defendant’s evidence and nevertheless found the confession was voluntary, as did the Appellate Division by its affirmance on this mixed question of law and fact.

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

Order affirmed in a memorandum.


text:
    In the Matter of Joseph P. Sullivan, Respondent, v Superintendent of Insurance, Appellant.
    Argued March 27, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin, Robert Hermann and Peter H. Schiff of counsel), for appellant.

      Terence L. Kindlon for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for the reasons stated in the memorandum at the Appellate Division (103 AD2d 914).

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


text:
    Carletha Bridges, Appellant, v Riverbay Corporation et al., Respondents.
    Argued March 27, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Martin S. Rothman, Perry Pazer and Alyne I. Diamond for appellant.

      Roy E. Pomerantz, Alvin P. Bluthman and Alan J. Brill for Riverbay Corporation, respondent.

      Steven B. Prystowsky for Auth Electric Company, Inc., respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (102 AD2d 800).

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


text:
    T. D. Fender, Respondent, v T. Gene Prescott, Appellant, et al., Defendant.
    Argued March 21, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Owen McGivern, Allan R. Freedman and Beth A. Finley for appellant.

      Edward N. Meyer, Robert E. Kushner and Vicki L. Dexter for respondent.
   OPINION OF THE COURT

Memorandum.

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

Execution of a buy-sell agreement between plaintiff and defendant with respect to the stock of National Cold Storage Co., Inc., did not automatically release defendant from his obligation as a shareholder, officer and director of that close corporation not to co-opt a viable corporate opportunity of which he became aware in such capacities. There being, at least, a triable issue of fact concerning the viability of National’s negotiations for acquisition of Merchant’s Refrigerating Co., defendant’s motion for summary judgment as to that opportunity was properly denied.

Summary judgment was also properly denied defendant as to his acquisition of National Gypsum Company’s Gold Bond Division prior to execution of the buy-sell agreement. That National Cold Storage engaged in purchasing and operating cold storage facilities did not preclude its entry into other fields and the affidavits establish that it negotiated for acquisition of businesses widely diverse from cold storage. There are, therefore, triable issues of fact as to that acquisition as well.

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

Order affirmed, etc.


text:
    T. D. Fender, Respondent, v T. Gene Prescott, Appellant.
    Argued March 21, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Owen McGivern, Allan R. Freedman and Beth A. Finley for appellant.

      Edward N. Meyer, Robert E. Kushner and Vicki L. Dexter for respondent.
   OPINION OF THE COURT

Order affirmed, with-costs, for the reasons stated in that part of the opinion by Justice Bentley Kassal at the Appellate Division as deals with specific performance (101 AD2d 418).

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


text:
    Lawrence Miller et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v General Motors Corporation, Respondent, et al., Defendant.
    Argued March 22, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Irwin M. Berg for appellants.

      Barrington D. Parker, Jr., Kim J. Landsman, Charles E. King, III, Patrick F. McCartan and Edward C. Wolfe for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the memorandum of the Appellate Division (99 AD2d 454; see, UCC 2-318, as amended by L 1975, ch 774).

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


text:
    City of Rochester, Respondent, v LeCesse Bros. Contracting, Inc., Appellant.
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Thomas A. Fink for appellant.

      Louis Kash, Corporation Counsel (Daniel J. Tallon of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 1022).

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


text:
    In the Matter of Thomas Goglia, Respondent, v Thomas J. Sardino, as Chief of Police of the City of Syracuse, et al., Appellants.
    Argued March 26, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (Robert J. Jenkins of counsel), for appellants.

      John E. Butler for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum decision (see, 101 AD2d 1013) and in the decision of Justice John W. Grow at Special Term (119 Misc 2d 907; see also, Cleveland Bd. of Educ. v Loudermill, 470 US_, 105 S Ct 1487).

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

Order affirmed, with costs, in a memorandum.


text:
    29 W. 25th Street Parking Corp. et al., Respondents-Appellants, v Penn Post Parking, Inc., Appellant-Respondent.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Jack Rabin and Judith Roth for appellant-respondent.

      Owen McGivern, Allan R. Freedman, Marc E. Fleishman and Leon Liner for respondents-appellants.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal taken as of right by defendant dismissed, without costs, upon the ground that the dissents at the Appellate Division are not on questions of law (CPLR 5601 [a] [i]). Order, insofar as appealed from by plaintiffs, reversed, with costs, and the judgment of Supreme Court, New York County, reinstated. The Appellate Division denied plaintiff tenant, 29 W. 25th Street Parking Corp., an extension of the lease term (as the lease requires in the case of the landlord being unable to give possession on the date specified), because it held that plaintiff caused the delay in possession by holding over at the expiration of the prior lease. However, that plaintiff did not cause the delay; it was caused by the holdover of the other plaintiff, W. 25th Street Parking Corp., with which plaintiff tenant, 29 W. 25th Street Parking Corp., had no connection until months later.

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


text:
    Long Island Rail Road Company, Appellant, v Long Island Lighting Company, Respondent.
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Bernard E. Gegan, Thomas M. Taranto and Roger J. Schiera for appellant.

      Michael Lesch, Ronald D. Lefton and David H. Pikus for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified not answered as unnecessary.

This is a proceeding under EDPL 207 to review the determination of respondent, Long Island Lighting Company (LILCO), to acquire certain limited easements in real property and rights of way owned by appellant, Long Island Rail Road Company (LIRR). The Appellate Division held that LILCO had the statutory power to condemn LIRR’s property even though devoted to a prior public use because the presence of LILCO’s facilities on the rights of way will not cause substantial interference with LIRR’s operation. In this court, LIRR centers its argument on the alleged material interference with its operations, an argument we reject for the reasons stated by Justice James F. Niehoff at the Appellate Division (103 AD2d 156, 167-168).

Appellant’s remaining contentions, three of which we address specifically, are similarly without merit. First, the easements do not effect a taking of LIRR’s skill and labor, because LIRR has no obligation to furnish them. Rather, LIRR has the right to approve modifications of circuits, to review and approve plans prior to the relocation, maintenance or repair of facilities, and to provide flagmen in connection with these activities — at LILCO’s expense — if it chooses. Second, since the services of LIRR’s personnel are not being “taken”, it follows that the fact that LIRR may in the future be reimbursed for the cost of such services does not violate the requirement that the condemnee receive just compensation at the time of the taking. Third, while appellant argues that the various covenants contained in the proposed easements are mere “promissory stipulations”, the scope of the condemned easements is determined not by extrinsic promises but by the covenants contained in the recorded document itself, which limit and define LILCO’s interest.

Judges Jasen, Meyer, Simons, Kaye, Alexander and Kane concur in memorandum; Chief Judge Wachtler taking no part.

Order affirmed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Andrew Peter H. T., an Infant. Timothy De V. et al., Appellants; Mark T., Respondent.
    Argued March 26, 1985;
    decided April 25, 1985
    APPEARANCES OF COUNSEL

      Joyce R. Parker for appellants.

      Noel Tepper for respondent.

      Robert Abrams, Attorney-General (Robert Hermann, Maryellen Weinberg, Robert J. Schack and Esther Furman of counsel), in his statutory capacity pursuant to Executive Law § 71.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court, Dutchess County, for further consideration in accordance with this memorandum.

Respondent, Mark T., is the natural father of the proposed adoptive child, Andrew, who was born out of wedlock on September 11,1977. Mark never married the child’s mother, Catherine H., but they lived together for several years prior to their separation in 1979. Catherine and her husband, Timothy De V., whom she married in 1982, wish to adopt Andrew. They seek to do so without the consent of Mark, who opposes the adoption. After a hearing, Family Court dismissed the petition, finding that Mark’s refusal to consent barred the adoption because he had not evinced “an intent * * * to forego his parental rights,” and the Appellate Division affirmed.

In 1980, the Legislature established guidelines for determining whether the father of a child born out of wedlock has demonstrated a substantial relationship with his child, giving him a right to veto the child’s adoption (L 1980, ch 575, § 1; see, Caban v Mohammed, 441 US 380, 393). Under the statute, a natural father seeking to bar the adoption of his child must show that he has: “maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father’s means, and either (ii) the father’s visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father’s regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child” (Domestic Relations Law § 111 [1] [d]). Only after the natural father establishes his right of consent to the adoption, by satisfying both the support and the communication provisions of the statute, does the court proceed to determine whether he has forfeited that right by evincing “an intent to forego his * * * parental * * * rights and obligations as manifested by his * * * failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so” (Domestic Relations Law § 111 [2] [a]; see generally, Matter of Amy SS, 64 NY2d 788, revg 100 AD2d 657; Matter of Corey L v Martin L, 45 NY2d 383).

Family Court found, and the Appellate Division affirmed, that Mark had maintained constant telephone communication with Andrew and Catherine; that his financial condition precluded travel from California to New York (where Catherine and Andrew ultimately settled); that when he did come to New York, Catherine refused to allow him to see his son; and that after her marriage to Timothy, she discouraged all contact between Mark and Andrew. These affirmed findings may justify a conclusion that Mark met the communication requirement of section 111 (1) (d) (iii), and did not abandon his child within the meaning of section 111 (2) (a). But neither court considered whether Mark satisfied, or was somehow excused from satisfying, the threshold support provision of section 111 (1) (d) (i), and the matter must therefore be remitted to Family Court.

In view of this disposition, it is premature to address Mark’s argument, raised both before the Appellate Division and Family Court, that section 111 (1) (d) of the Domestic Relations Law violates his constitutional right of equal protection.

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

Order reversed, etc.


text:
    Ismael Olan, Appellant, v Farrell Lines Incorporated, Respondent.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Paul C. Matthews and Morgan Kennedy for appellant.

      Stephen K. Carr and Bernard J. Vaughn for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum (105 AD2d 653). We add only that, before considering whether plaintiff put forth sufficient proof to defeat defendant’s motion for summary judgment, the issue of whether defendant established its defense must first be addressed (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In this instance, defendant put forth sufficient evidentiary proof in admissible form, and plaintiff raised no issue of material fact to support its claim of negligence and unseaworthiness. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affidavit annexing plaintiff’s deposition testimony and other proof, rather than affidavits of fact on personal knowledge, does not defeat defendant’s right to summary judgment (see, Gaeta v New York News, 62 NY2d 340, 350; Zuckerman v City of New York, supra, p 563).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Barbara Wildman, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Daniel F. Mathews, Jr., for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 875).

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


text:
    Corinne Sutter, Individually and on Behalf of All Others Similarly Situated, Appellant, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Bryan D. Hetherington and Edwin J. Lopez-Soto for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein, Robert Hermann and Peter H. Schiff of counsel), for Cesar Perales, as Commissioner of the New York State Department of Social Services, respondent.

      James A. Robinson and Milo I. Tomanovich for W. Burton Richardson, as Director of the Monroe County Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (103 AD2d 1029; see, Matter of Jones v Blum, 64 NY2d 918).

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


text:
    In the Matter of the Claim of Nina Kaye, Respondent, v Brewster Central School District Boarl of Education, Respondent. Workers’ Compensation Board, Appellant.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Howard B. Friedland of counsel), for appellant.

      Paul Moore for claimant-respondent.

      Rochelle J. Auslander for Brewster Central School District Board of Education, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 870).

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


text:
    In the Matter of Queens Borough Public Library, Respondent, v Public Employment Relations Board of the State of New York, Appellant, and Queens Borough Library Guild, Local 1321, District Council 37, AFSCME, AFL-CIO, Intervenor-Appellant.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Martin L. Barr, Jerome Lefkowitz and Richard A. Curreri for appellant.

      Anthony H. Atlas for respondent.

      Beverly Gross and Irving H. Glasgow for intervenor-appellant.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the' Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 993).

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


text:
    John Gazda, on Behalf of Himself and All Other Shareholders of T.J.’s Big Boy, Inc., and in the Right of T.J.’s Big Boy, Inc., Appellant, v Anthony T. Kolinski et al., Respondents. (And Another Action.)
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      John Benjamin Carroll for appellant.

      Thomas E. Myers and John J. Dee for respondents.
   OPINION OF THE COURT

Appeal insofar as it seeks review of that portion of the prior order of the Appellate Division which enjoined expansion pending the accounting dismissed for mootness; order appealed from and order brought up for review otherwise affirmed, with costs, for the reasons stated in so much of the memorandum at the Appellate Division as pertains to management fees and punitive damages (91 AD2d 860).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Gladys Lynch, Respondent, v New York City Employees’ Retirement System et al., Appellants.
    Argued February 13, 1985;
    decided March 26, 1985

      APPEARANCES OF COUNSEL

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

      Susan I. Lubowitz, Stephen F. Gordon and Jeffrey L. Kreisberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, for the reasons stated in the dissenting opinion of Justice Samuel J. Silverman (103 AD2d 695, 697), except we conclude that there remains no issue of fact relating to the meaning and effect of the stipulation and, therefore, the petition should be dismissed.

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

Order reversed, with costs, and petition dismissed in a memorandum.


text:
    In the Matter of Maria Laureano et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents, and Delores Hancock et al., Intervenors-Appellants.
    Argued March 20, 1985;
    decided April 2, 1985

      APPEARANCES OF COUNSEL

      Andrew Scherer, Susan Barrie, Lucy Billings, John E. Kirklin, James C. Francis, IV, and Scott A. Rosenberg for appellants and intervenors-appellants.

      Frederick A.O. Schwarz, Jr., Corporation Counsel (June A. Witterschein, Leonard Koerner and Jeffrey Schanback of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to dismiss the proceeding for mootness. We decline to exercise our discretion to retain jurisdiction despite mootness (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 718) for the reason that in this instance the City has in fact published regulations.

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Sam & Mary Housing Corp., Respondent, v Jo/Sal Market Corp., Appellant.
    Argued March 25, 1985;
    decided April 25, 1985

      APPEARANCES OF COUNSEL

      Alan D. Levine and Ira H. Futterman for appellant.

      Sheldon Ostro for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (100 AD2d 901).

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


text:
    In the Matter of the Arbitration between Allstate Insurance Company, Appellant, and Frank Giordano et al., Respondents.
    Submitted April 1, 1985;
    decided April 25, 1985
   Motion for a stay granted only to the extent of staying announcement of the arbitration decision pending determination of the appeal herein; motion otherwise denied.


text:
    F & G Heating Company, Inc., Appellant, v Board of Education of the City of New York, Respondent.
    Submitted March 11, 1985;
    decided April 25, 1985
   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, the severance being related only to an item of damages and not to a separate cause of action.


text:
    Tom Kerrigan, Respondent, v John Kenny, Appellant.
    Decided April 25, 1985
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie because the constitutional validity of a statutory provision is not the only question involved (NY Const, art VI, § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Joan McNamara, Appellant, v Commissioner of Education, New York State Education Department, et al., Respondents.
    Submitted April 8, 1985;
    decided April 25, 1985
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for “summary judgment” dismissed as academic.


text:
    The People of the State of New York, Respondent, v Gene Scalise, Appellant.
    Submitted April 1, 1985;
    decided April 25, 1985
   Motion for leave to appeal treated as motion for reargument of motion for leave to appeal which was denied by this court on January 15,1985, dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 64 NY2d 604, 884.]


text:
    Harold Shorr, Appellant, v Cohen Bros. Realty & Construction Corp. et al., Respondents.
    Submitted February 4, 1985;
    decided April 25, 1985
   Motion, insofar as it seeks leave to appeal from Appellate Division order of December 11,1984, granted; motion otherwise denied upon the ground that it is unnecessary.

Cross motion, insofar as it seeks to dismiss the appeal taken as of right from the Supreme Court judgment of August 16, 1983, granted and that appeal dismissed, without costs, upon the ground that an appeal lies only from the Appellate Division order finally determining the appeal from that judgment (CPLR 5601 [d]; see, First Westchester Natl. Bank v Olsen, 19 NY2d 342, 346-347); cross motion otherwise denied.


text:
    In the Matter of Tammie Z. and Others, Alleged to be Neglected Children. Chemung County Department of Social Services, Respondent; Owen Dennis Z., Appellant.
    Submitted March 11, 1985;
    decided April 25, 1985
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).


text:
    The People of the State of New York, Respondent, v Charles Lewis, Appellant.
    Argued January 9, 1985;
    decided April 30, 1985
    APPEARANCES OF COUNSEL

      Gerald V. Hayes for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Viewing the entirely circumstantial evidence in a light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn therefrom (People v Way, 59 NY2d 361, 365; People v Montanez, 41 NY2d 53, 57), we agree with the majority at the Appellate Division that defendant’s guilt was proved beyond a reasonable doubt, as the facts from which the inference of his guilt is drawn, when perceived as a whole, are inconsistent with his innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v Way, supra; People v Barnes, 50 NY2d 375, 380; People v Montanez, supra; People v Benzinger, 36 NY2d 29, 32).

Defendant was convicted after a jury trial of murder in the second degree for intentionally causing the death of his girlfriend, 20-year-old Lynn Bailey, whose body was found floating in a secluded lake in Ulster County on September 15, 1981. Bailey was tied in a fetal position and wrapped in a black vinyl bag along with rocks and stones, apparently to help sink the body. She had last been seen at approximately 9:40 p.m. on September 10 when she and defendant left the home of a friend in Woodstock to return to the apartment they shared in that same town. The following morning, defendant placed all the belongings of Bailey remaining in the apartment, including her car registration and driver’s license, into plastic bags and took them to a town dump. He then, pursuant to a prior agreement with his rental agent, returned the key to the apartment and received the $600 security deposit. Defendant, who worked as a taxi driver, next, ostensibly on an errand for his employer, drove a taxi into Kingston. He left the car near the bus station in Kingston, purchased a ticket for Los Angeles and boarded a bus.

On September 15, 1981, defendant called Woodstock Town Constable Milton Holsapple. Although defendant stated in this conversation that he was in Los Angeles, toll records later revealed that he called from Las Vegas. At the time of this phone call, Constable Holsapple did not know that Bailey had been murdered, nor had any police department received a report that she was missing. Defendant stated that he was calling to inquire as to whether there was a warrant for his arrest for stealing his employer’s taxicab and to let the police know that he had abandoned it after it broke down, and he had notified his employer’s father of this fact. Defendant then mentioned that he had learned that Bailey was missing. Although defendant claimed in a subsequent phone conversation that he heard about Bailey’s disappearance from a friend, Barry Titus, Constable Holsapple testified that in the first phone conversation defendant stated that he had learned this from her parents. Bailey’s parents both testified that they had not spoken with the defendant at any time in September 1981.

Defendant, pursuant to Holsapple’s request, called again the following day, September 16. As the police by then knew that Bailey had been found dead, the second phone conversation, as well as a third one on September 17, were recorded and the tapes of these two conversations were introduced at trial. Defendant, not aware during these conversations that the police knew of Bailey’s death, stated that he and Bailey had an argument on the evening of September 10 which led to a decision to break up. He then agreed to drive her to a nearby town. He told Constable Holsapple that the argument continued in the car because she did not want him to know exactly where she was going and that he finally stopped the car in a secluded area and told her to get out. Defendant asserted that he last saw her when she left his car, at approximately 2:30 a.m. on September 11, and he denied harming her. Defendant discussed his relationship with Bailey at great length in the September 16 and 17 calls, which totaled over 2V2 hours, and the conversations revealed their frequent arguments and breakups, the significant emotional and economic difficulties he faced, and his deep jealousy of her interest in and relationships with other men.

The September 17 conversation was traced and defendant was arrested at a pay phone in San Francisco. At some time between the evening of September 10 and his arrest on September 17, defendant had altered his appearance by substantially shortening the length of his hair and shaving off all his facial growth.

We must assume that the jury, as it was entitled to do, credited Constable Holsapple’s testimony that defendant stated in their first conversation that Bailey’s parents had told him she was missing, credited the parents’ testimony that no such conversation occurred, and rejected defendant’s claim in the second conversation that he had learned of her disappearance from Barry Titus. Constable Holsapple also testified that defendant told him that he had permission to charge calls to his parents’ home phone, and the prosecution introduced phone records which revealed that while defendant had, in fact, charged all of his calls to the Woodstock Police Department to his parents’ number, there was no call placed to Barry Titus charged to that number. The jury could thus permissibly draw the inference that defendant had not heard from anybody else that Bailey was missing prior to telling Constable Holsapple this on September 15, which would indicate that he knew she was missing because he had killed her.

There are numerous other pieces of evidence which point towards defendant’s guilt. Defendant was the last person seen with Bailey. By his own admission, they had a fight on the evening of September 10, which caused them to break up. His own description of their relationship and his feelings towards her reveal a motive. After dumping her belongings, he fled New York and dramatically altered his appearance. In his first conversation with Holsapple, he falsely stated that he was in Los Angeles. The jury was entitled to construe his placement of the calls to Holsapple as a feigned posture of cooperation aimed at misleading the police and avoiding becoming a suspect (cf. People v Harris, 306 NY 345, 348-349).

In sum, the evidence, when viewed in its totality, entitled the jury to find, beyond a reasonable doubt, that defendant intentionally caused the death of Lynn Bailey.

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

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

Order affirmed in a memorandum.


text:
    Farmland Market Corp., Appellant, v North River Insurance Company et al., Respondents, et al., Defendant.
    Decided April 30, 1985

      APPEARANCES OF COUNSEL

      Ira M. Myers for appellant.

      Robert S. Newman for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 602).

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


text:
    Tappan Motors, Inc., Appellant, v Volvo of America Corporation et al., Respondents.
    Argued March 18, 1985;
    decided April 30, 1985

      APPEARANCES OF COUNSEL

      Julius W. Cohn for appellant.

      Frederick L. Whitmer, pro hac vice, and William E. Brandon, P. C., for respondents.

      Robert E. Helm and Matthew E. Moloshok for New York State Automobile Dealers, Inc., and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The Appellate Division order appealed from and the prior nonfinal Appellate Division order brought up for review should be affirmed, with costs (see, CPLR 5501 [b]).

Tappan Motors brought this action in November 1979 alleging that Volvo’s threatened termination of its dealer franchise violated section 197 of the General Business Law, which prohibited such termination “except for cause.” After a nonjury trial, the court enjoined Volvo from terminating the franchise, finding that Tappan had complied with the obligations of the franchise agreement. Reversing, on the law and the facts, the Appellate Division interpreted section 197 as “precluding a distributor such as Volvo from terminating a franchised dealer either in bad faith or in the absence of good cause shown”. (85 AD2d, at p 625.) However, the majority considered the termination justified in light of several deficiencies in Tappan’s performance.

We conclude that the weight of the evidence more nearly comports with the holding of the Appellate Division that Volvo had good cause to terminate the dealership because of the insufficiency of Tappan’s performance, particularly breach of its contractual duty to maintain on premises an adequate parts inventory to meet the current and reasonably anticipated service requirements of its customers. Accordingly, we need not determine whether section 197 imposed a “good cause” requirement or, as Volvo claims, protected only against arbitrary and capricious terminations.

Chief Judge Wachtler and Judges Jasen, Simons and Kaye concur; Judges Meyer and Alexander dissent and vote to reverse upon the ground that the weight of the evidence more nearly comports with the findings made by Supreme Court in the original decision on the analysis advanced in the dissenting memorandum of Justice Vito J. Titone at the Appellate Division (85 AD2d 624, 626-633).__

Order appealed from and order brought up for review affirmed, with costs, in a memorandum.

       The Legislature has since enacted article 17-A of the Vehicle and Traffic Law (the Franchised Motor Vehicle Dealer Act), including standards for dealer termination, which became effective July 1, 1984.


text:
    The People of the State of New York, Respondent, v Victor Velazquez, Appellant.
    Decided April 30, 1985

      APPEARANCES OF COUNSEL

      Jeffrey G. Stein and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Steven L. Kessler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Refusing to discredit the uncontradicted testimony of the sole witness at the suppression hearing, the Appellate Division affirmed the finding that the car in which defendant was riding was stopped because it was speeding. We have no occasion to disturb either this affirmed finding, which is supported by the record, or the conclusion that the stop was therefore valid (see generally, People v Ingle, 36 NY2d 413).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    Marina Velez, Appellant, v Union Sanitorium Association, Inc., Respondent.
    Decided April 30, 1985

      APPEARANCES OF COUNSEL

      Alyne I. Diamond for appellant.

      Ricki E. Roer for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff brought a medical malpractice action against the Union Health Center and the International Ladies Garment Workers Union as well as the treating physician. Defendant, Union Sanitorium Association, Inc. (USA), answered that complaint, stating in the pleading that USA was the proper name for the corporate entity allegedly responsible for the injuries. Plaintiff accepted the answer without objection. Under these circumstances, the Appellate Division correctly found that USA was a party to the action. Accordingly, there was no error in dismissing plaintiff’s subsequent action against USA under CPLR 3211 (a) (4).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    Maidgold Associates, Appellant, v City of New York, Respondent. Maidgold Associates, Appellant, v City of New York et al., Respondents.
    Argued March 18, 1985;
    decided April 30, 1985

      APPEARANCES OF COUNSEL

      Richard S. Bernstein and Andrew Zajac for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

In these two cases, which arise out of the same facts, the respective orders of the Appellate Division appealed from should be affirmed, with costs.

In May 1979, plaintiff Maidgold Associates (Maidgold), a tenant at 75 Maiden Lane, New York City, entered into negotiations with defendant City of New York (City), which was represented by Alex Liberman, to sublease the seventh, eighth and ninth floors at 75 Maiden Lane to the City. On August 16,1979, the Board of Estimate, by resolution, authorized the City to sublease the space “for use by the Mayor’s Office of Operations, or for such other purpose as the Commissioner of General Services may direct.” The resolution provided that the sublease would have no force and effect until approved by the New York State Financial Control Board (FCB) and the Mayor. By letter dated August 23,1979, Liberman requested that Maidgold proceed with necessary renovations, and assured Maidgold that it would be reimbursed for the work should the FCB withhold approval of the sublease.

In September 1979, the City decided that the space was not suitable for the Mayor’s Office of Operations, and advised Maid-gold to stop the renovation work and seek an alternate tenant. The City remained interested in the space and sought to locate other agencies that might find the space suitable. In November 1979, Maidgold submitted a sublease to the City containing the terms authorized by the Board of Estimate resolution including the requirement of FCB approval. This sublease was fully executed by December 3, 1979, but FCB approval was not then obtained. In May 1980, it was determined that it would be feasible for another City agency, the Department of Housing Preservation and Development (HPD), to occupy the seventh and ninth floors. At about the same time the Housing Development Corporation (not a City agency) expressed an interest in the eighth floor, and eventually entered into a lease for that space, commencing November 1, 1980. On August 5, 1980, the City and Maidgold executed an agreement modifying the sublease so as to exclude the eighth floor. This modification was to have no force and effect until the FCB and the Mayor approved both the modification and the original sublease. FCB and the Mayor’s Office of Management and Budget (OMB) approved the documents and the sublease, as modified, became effective.

Maidgold commenced an action against the City and Liberman seeking damages in tort on the ground that the City, through Liberman, misled it into believing that it was bound by the executed sublease, and thus was not free to lease the space to another tenant. Maidgold also asserted that the City, in bad faith, delayed obtaining the necessary approval of the sublease. In its answer, the City alleged as a defense the failure of the complaint to allege that the sublease had been approved by the Mayor as required by the Board of Estimate resolution. Maid-gold thereafter commenced a second action against the City seeking to eject HPD from the seventh and ninth floors, alleging that HPD’s occupancy was illegal because the required approval from the Mayor’s office had not been obtained.

In Maidgold’s action for damages based on the City’s alleged tortious conduct, the Appellate Division affirmed, without opinion, the order of Special Term granting the City’s motion for summary judgment dismissing the complaint. In the ejectment action the Appellate Division, two Justices dissenting, also affirmed an order of Special Term dismissing the complaint for failure to state a cause of action. The dissenters viewed the City’s affirmative defense in the first action of failure to allege Mayoral approval of the sublease as an attempt by the City to argue in one case that the sublease was invalid, and in the other that the sublease was validly approved.

With respect to Maidgold’s action for damages, there is no evidence in this record that supports Maidgold’s contention that the City, in bad faith, delayed obtaining the necessary approvals of the sublease. Moreover there is no dispute that Maidgold was aware that the sublease would be of no force and effect until FCB and Mayoral approval was obtained. It had negotiated with the City’s agents previously and was bound to know the limits of their power (Moore v Mayor of City of N. Y., 73 NY 238; see also, Oswego Falls Corp. v City of Fulton, 148 Misc 170, affd 241 App Div 650) and it had no right to rely upon representations they may have made beyond the extent of their authority, which authority is a matter of public record (Lindlots Realty Corp. v County of Suffolk, 278 NY 45). Even assuming that Maidgold held the space for the City in reliance on misrepresentations by Liberman that approval would be obtained expeditiously, Liberman had no authority to make such representations, and thus the City is not responsible for any hardship resulting from restraint on Maidgold’s part in exercising its right to find a substitute tenant (see, Pauk v Board of Higher Educ., 62 AD2d 660, 664-665, and authorities cited therein).

Maidgold’s action to eject HPD was properly dismissed as legally insufficient. FCB and OMB approval of the modified sublease was obtained. The Board of Estimate resolution authorized a sublease either to the Mayor’s Office of Operations or any other City agency. Since the space eventually was occupied by HPD, a City agency, the Board of Estimate resolution was complied with and no further certification of HPD’s occupancy was required. The City’s challenge to the legal sufficiency of the complaint in a separate action, dealing with unrelated issues, based upon the failure to allege proper approval of the sublease cannot be viewed as a “judicial admission” of the illegality of the City’s occupancy.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    Eddie Lovett et al., Appellants, v Allstate Insurance Company, Respondent.
    Decided April 30, 1985

      APPEARANCES OF COUNSEL

      David J. Goldstein for appellants.

      Frederic R. Mindlin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and orders of the Appellate Division brought up for review affirmed with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 545).

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


text:
    The People of the State of New York, Respondent, v Juan De Jesus, Appellant.
    Argued March 26, 1985;
    decided April 30, 1985

      APPEARANCES OF COUNSEL

      Norman L. Reimer for appellant.

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

Order affirmed for reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (101 AD2d 111).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Commissioner of Labor of the State of New York, Respondent, v Barbara J. Hinman, Appellant.
    Submitted February 11, 1985;
    decided April 30, 1985
   Motion to vacate the Court of Appeals order of dismissal dated December 31, 1984 denied. [See, 64 NY2d 756.]


text:
    Alexandra Getz, Appellant, v City of New York et al., Respondents.
    Submitted April 8, 1985;
    decided April 30, 1985
   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 (Cohen and Karger, Powers of the New York Court of Appeals § 36, at 144).


text:
    In the Matter of Stuart R. Kramer, an Attorney and Counselor-at-Law, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted April 22, 1985;
    decided April 30, 1985
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division, absent the direct involvement of a substantial constitutional question (NY Const, art VI, § 3; CPLR 5601; Cohen and Karger, Powers of the New York Court of Appeals § 47, at 208).

Motion for leave to appeal denied with $20 costs and necessary reproduction disbursements.

Motion for a stay dismissed as academic.


text:
    Wallace P. Mitchell et al., Appellants, v State of New York, Respondent.
    Submitted March 25, 1985;
    decided April 30, 1985
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the order of unanimous affirmance, absent the direct involvement of a substantial constitutional question (NY Const, art VI, § 3; CPLR 5601; Cohen and Karger, Powers of the New York Court of Appeals § 47, at 208).

Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent-Appellant, v Wayne Bouyea, Appellant-Respondent.
    Argued March 22, 1985,
    decided May 2, 1985

      APPEARANCES OF COUNSEL

      James M. Dungan and Gerald T. Barth for appellant-respondent.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Beth J. Van Doren of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating defendant’s sentence as a second felony offender and remitting to the Appellate Division for a review of the sentence in the interests of justice.

The record discloses that, in the presence of counsel and before the sentencing court, defendant admitted the existence, nature and time of his prior felony conviction, as well as the length and location of the prior sentence he served. Moreover, defendant informed the court that he understood and intended to accept the plea agreement on the present felony which included imposition of the sentence in question. Defendant raised no challenge to the court’s consideration of the prior conviction and, at the time of sentencing a month later, he made no objection to being sentenced as a predicate felon.

The statutory purposes for filing a predicate statement (CPL 400.21) have been satisfied, to wit: apprising the court of the prior conviction and providing defendant with reasonable notice and an opportunity to be heard. The People’s failure to file a predicate statement was harmless, and remanding for filing and resentencing would be futile and pointless. (People v Harris, 61 NY2d 9, 20; see also, People v Morse, 62 NY2d 205, 225.) Accordingly, it was error for the Appellate Division to vacate the sentence as a matter of law. However, that court should be permitted to exercise its power to review the sentence in the interests of justice. (See, People v Creech, 60 NY2d 895; People v Cona, 49 NY2d 26, 33-34.)

We have considered the remaining contentions of both the People and defendant on their respective appeals and have found them to be without merit.

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

Order modified and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Allen Davis, Appellant.
    Argued March 27, 1985;
    decided May 2, 1985
    APPEARANCES OF COUNSEL

      Philip H. Dixon for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

On this appeal, it is argued that a police officer’s instruction to defendant to place a plastic bag in his possession on the ground, and the officer’s subsequent search of the bag, were unsupported by reasonable suspicion as a matter of law. Reasonable suspicion involves a mixed question of law and fact, which is beyond the review powers of this court if there is evidence adduced at the suppression hearing which supports the determination made by the courts below. (People v Harrison, 57 NY2d 470, 477.)

In this case, defendant was a passenger upon a moped which was operated without license plates, at 2:30 a.m., in a high crime area. Neither defendant nor his companion could produce any form of identification. Upon the officer’s inquiry as to what was in a plastic bag in his possession, defendant removed a pair of pants from the bag, impliedly suggesting that the bag contained nothing else, whereupon a bulge appeared in the bottom of the bag from a heavy object within. The officer perceived the situation to be dangerous, and ordered defendant to place the bag on the ground. In the bag the officer discovered a .45 caliber weapon. We are presented with affirmed factual findings that the officer’s conduct was based upon reasonable suspicion under the circumstances, and that the officer perceived the situation to be a dangerous one. Accordingly, it cannot be said that the officer’s conduct was unwarranted as a matter of law.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Fred Foster and Gregory Reed, Appellants.
    Argued March 20, 1985;
    decided May 2, 1985

      APPEARANCES OF COUNSEL

      Richards W. Hannah and Joseph A. Doran for Fred Foster, appellant.
    .Robert S. Dean and William E. Hellerstein for Gregory Reed, appellant.

      Elizabeth Holtzman, District Attorney (Michael Gore and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to reverse the conviction of Gregory Reed and dismiss the indictment as to him and, as so modified, should be affirmed.

As to the disqualification of the trial juror who had served on a Federal Grand Jury during the two years prior to trial of the present case, we agree with the Appellate Division, for the reasons set forth in the opinion of Justice Leon D. Lazer, that defendants Fred Foster and Gregory Reed waived the issue. Defendants argue that because the Judiciary Law speaks separately to qualifications (§ 510) and disqualifications (§ 511) and CPL 270.20 (1) provides that, “A challenge. for cause is an objection to a prospective juror and may be made only on the ground that: (a) He does not have the qualifications required by the judiciary law” (emphasis supplied), they could not have challenged the juror for cause and, therefore, were not required by CPL 270.20 (2) to join in the peremptory challenge to the juror in order to preserve the error. They point to the fact that the only statutory provision relating to discharge of disqualified jurors is Judiciary Law § 518, which provides that, “The court shall discharge a person from serving as a trial or a grand juror whenever it satisfactorily appears that he is not qualified or is disqualified” (emphasis supplied), and argue, first, that only the Trial Judge has the power to purge the panel of disqualified persons and, second, that the obligation of the Trial Judge being to discharge a disqualified person “whenever it satisfactorily appears that he is * * * disqualified,” how or by whom the disqualification comes to, or is brought to, the attention of the Trial Judge is irrelevant.

The argument has surface appeal but exalts form over substance. The qualifications of citizenship, age, residence, mental and physical ability, intelligence, character and ability to read and write English and speak English understandably go to the substance of a juror’s function, to listen, understand and deliberate, whereas the disqualifications — for service in the Armed Forces, as an elected or appointed government official, Federal or State Judge or as a juror within two years past — relate not to competence or ability to serve as a juror but to governmental policy: with respect to prior service, as Justice Lazer noted, to discourage professional jurors and render jury service more attractive by minimizing its burdens. Thus, despite the wording of CPL 270.20 (1), defendants should have, as did Jerry Foster, challenged the juror for cause because of his prior service. Whether they would have preserved the error, despite that failure, had they joined in Jerry Foster’s peremptory challenge to the juror and thereafter exhausted their peremptory challenges, we need not decide, for by refusing to join in that challenge they waived any objection based on the juror’s prior service (People v Cosmo, 205 NY 91,100-101; State v Strodes, 48 Ohio St 2d 113, 357 NE2d 375).

Both defendants argue also that the evidence was insufficient to sustain their respective convictions. In reviewing legal sufficiency we are required to view the evidence , in the light most favorable to the prosecution and decide whether a rational trier of fact could have found the elements of the crime proved beyond a reasonable doubt (Matter of Anthony M., 63 NY2d 270, 280; People v Contes, 60 NY2d 620, 621; Jackson v Virginia, 443 US 307, 319). Applying that standard, we conclude that the conviction of Fred Foster should be sustained but that as to Gregory Reed the indictment should be dismissed.

Although Fred Foster did not take the stand, his statement in which he admitted that he was at the scene and saw the stabbing and that he had been looking for the victim was introduced. Pierce testified that Fred Foster had previously threatened to kill the victim, that he saw Fred Foster at the scene as he passed it on his way to Gregory Reed’s apartment, that after he had been at Reed’s apartment a short time Fred Foster came in and said that “if anybody comes up asking for him, that he was upstairs painting along with Greg,” and that Fred Foster called him repeatedly thereafter, asking him to testify that he was not around when the crime was committed and threatening to kill him if he did not. Clearly, therefore, the evidence was sufficient to establish Fred Foster’s guilt beyond a reasonable doubt.

With respect to Gregory Reed, however, the situation is quite different. He did testify and his testimony was that he had been painting his apartment and learned about the incident from others but had nothing to do with it. That testimony was consistent with his prior statements to the police, with the statements of Fred Foster and Jerry Foster, both of whom made statements which were introduced in evidence and both of whom stated that Gregory Reed was not present when the victim was stabbed, and with the testimony of eyewitness Donald Mason that none of the three defendants were involved. Pierce testified, as already noted, that when he passed the scene he saw Fred Foster, but continued on and went directly to Gregory Reed’s apartment, where he found Reed painting, and that Fred Foster came in a little while later.

The only witness who identified Reed as a participant in the stabbing was Jashel Leslie. But he conceded that for some time prior to the incident he claimed to have witnessed he had been drinking and smoking marihuana, and his testimony not only as to the time of the incident but also as to the location of the crime scene, as to what he did after he witnessed the crime, and as to the event itself were all “involved in ‘hopeless contradictions’ ” (People v Ledwon, 153 NY 10, 21). Illustrative is that as to the incident itself, Leslie testified that defendant had a knife and had stuck the victim, but also testified that Jerry Foster had stabbed the victim, then changed that testimony to state that Fred Foster stabbed the victim and Jerry Foster was holding a pipe gun on him, but the next day testified that his prior testimony that Jerry Foster had stabbed the victim was truthful, then that Greg and Reed (defendant’s name is Gregory Reed) had stabbed the victim, then that Jerry Reed and Greg Reed had stabbed the victim, then that when he talked about Greg and Reed sticking the victim he meant Jerry Foster. Defendant’s guilt “cannot be established beyond a reasonable doubt by the testimony of such a witness, who is, evidently, either from moral or mental defects, irresponsible” (id., p 22; see also, People v Reed, 40 NY2d 204; People v Stewart, 40 NY2d 692).

We have considered the other issues raised by defendant Fred Foster and find them to be either unpreserved or without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Alexander and Kane concur in memorandum; Judge Kaye taking no part.

Order modified, etc.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Carmel Collision Specialists, Inc., Respondent, v Commissioner of Motor Vehicles et al., Appellants.
    Decided May 2, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert E. Rearman of counsel), for appellants.

      Charles T. Matthews for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, with costs, and determination of the Commissioner of Motor Vehicles reinstated (see, Matter of Sil-Tone Collision v Foschio, 63 NY2d 406).

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


text:
    Edwin B. Dexter, as President of New York Council, Navy League of the United States, Respondent, v James P. McAllister et al., as Trustees of the New York Council Navy League Scholarship Fund, Appellants.
    Argued March 27, 1985;
    decided May 2, 1985

      APPEARANCES OF COUNSEL

      Peter Tufo and Anita Fisher Barrett for appellants.

      Israel G. Seeger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the rights of the parties under article V of the trust agreement of July 30, 1964 declared in accordance with this memorandum.

This action involves a dispute over the election of trustees and interim trustees to fill unexpired terms on the Board of the New York Navy League Scholarship Fund. The Fund was created in July 1964 by a trust instrument executed by the New York Council, Navy League of the United States, which appointed certain named trustees and assigned assets to them to administer and distribute to members of Navy families. Over the years, as trustees resigned or died, they were replaced by elections of the Board of Trustees, acquiesced in by the Council. In December 1980 and May 1981 vacancies occurred because of the deaths of two trustees during their terms. The Board of Directors of the Council, acting in accordance with the instructions of the trust instrument as they read it, selected a nominating committee and transmitted its nominations to the Board of Trustees for consideration at their next annual meeting.

At that meeting in December 1981 the trustees rejected the nominations of the Council’s committee and instead elected their own candidates.

Plaintiff, president of the Council, brought this action for declaratory judgment, claiming that the trust agreement required that vacancies on the Board of Trustees be filled only by nominees selected by the Council’s nominating committee. Defendants, undisputed members of the Board of Trustees, contended that they had the right to fill the vacancies and were not required to abide by the Council’s nominations. On the parties’ cross motions for summary judgment, Special Term vacated the elections insofar as the newly elected trustees continued to fill the vacancies for the unexpired terms, holding that the Board must select successor trustees to fill such unexpired terms from candidates designated by the Council’s nominating committee, although the trustees could reject specific nominees and request new names. It also held that upon the expiration of a former trustee’s term, the trustees were free to select whoever they wished, without regard to candidates suggested by the nominating committee.

On plaintiff’s appeal, the Appellate Division modified by vacating the elections in their entirety. It declared the trust agreement mandated that the Board of Trustees consider persons designated by the Council’s nominating committee in all instances where vacancies are to be filled, except when trustees succeeded themselves. It also held that the Board of Trustees must choose from the candidates selected by the Council’s nominating committee, although they could reject the names submitted and request additional ones.

Article V designates the original trustees and then provides: “Thereafter, on each year commencing with the annual meeting of the Board of Trustees to be held September 9, 1965 two trustees shall be elected by the majority vote of the trustees then in office to serve for three years or until their respective successors are elected and qualify * * * In the event of a vacancy in an office of trustee, or in the event the office óf a trustee, whose term shall have been completed shall not be filled at an annual meeting or duly taken adjournment thereof, the Secretary of the Board of Trustees shall notify the President and Secretary of the New York Council of the Navy League of the United States and through its Board of Directors the Council shall promptly select a Nominating Committee and the nominations of the Nominating Committee shall be transmitted for consideration by the Board of Trustees at its next meeting.”

We interpret the provisions of article V to permit election to the Board of Trustees to fill an expired term at an annual meeting by election of a majority vote of the trustees then in office without any requirement that nominees submitted by the Council be considered. However, if a mid-term vacancy occurs in the office of trustee or if a vacancy created by an expired term is not filled at an annual meeting, then plaintiff shall be notified and a nominating committee selected by it may select names of nominees to fill such vacancies which it may transmit to the Board of Trustees for consideration at its next meeting. The nominees selected shall be considered by defendant’s trustees but are not binding on them.

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

Order reversed, etc.


text:
    In the Matter of Henry Meyer, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Executive Chairman of the Board of Trustees of the Police Pension Fund, Article II, of the City of New York, et al., Respondents.
    Decided May 2, 1985

      APPEARANCES OF COUNSEL

      Jeffrey L. Goldberg for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with directions to remand to respondent Board for reconsideration in accordance with this memorandum.

On August 13, 1979, petitioner, a New York City Police officer, suffered a line of duty injury when he fell while investigating a fire. At the direction of the police department, petitioner was examined by the department’s orthopedic consultant on February 4, 1980. This consultant stated: “My impression is that Mr. Meyer has ankylosing spondylitis related to his Crohns Disease which became clinically active after sustaining his injury.” On March 3, 1980, petitioner applied for an accident disability retirement, pursuant to the Administrative Code of the City of New York § B18-43.0, claiming that the injuries sustained in the fall had permanently incapacitated him. The Medical Board of the Police Pension Fund recommended to the Board of Trustees that petitioner be retired with an ordinary disability, instead of an accident disability, because he was unable to perform his police duties “due to the ankylosing spondylitis which is unrelated to the line of duty injury and was pre-existing”. Petitioner’s own physician, however, stated in a letter dated June 18, 1980 that, since the accident, petitioner had been complaining of pain and stiffness in the cervical spine region, and that “this condition is related and connected to the injury he sustained on 8/13/79”.

At the Board of Trustees’ meeting, Dr. Robinson, a member of the Board of Trustees and the supervising chief surgeon of the police department, stated that he regarded as reasonable the Medical Board’s determination that petitioner had “a condition of the spine which is known to be disabling and which has no relationship to any injury of any sort”. When pressed by other members of the Board of Trustees as to whether the accident could have acted as a catalyst for the disability, Dr. Robinson replied: “The question of whether the injury accelerated it, I don’t think it is that important”. On a tie vote of 6 to 6, the Board of Trustees confirmed the Medical Board’s determination and retired petitioner with an ordinary disability pension.

Petitioner then commenced the present proceeding, and Supreme Court, in the interests of justice, annulled the agency determination and remanded to the Board of Trustees for a fact-finding hearing. The Appellate Division reversed, vacated the judgment in petitioner’s favor, dismissed the petition and reinstated the Board of Trustees’ determination.

In Matter of Tobin v Steisel (64 NY2d 254), this court held applicable to accident disability determinations the causation rule of tort law “that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury” (id., at p 259). Inasmuch as the agency determination in this case was prior to our decision in Tobin, and in light of the conflicting views in the record as to the cause of petitioner’s disabling condition and the apparent failure of the Board of Trustees to address whether the injury precipitated the development of a latent condition or aggravated a preexisting condition, we reverse the order of the Appellate Division and remit the matter to Special Term with directions to vacate the agency determination and to remand the matter to the Board of Trustees for reconsideration in accordance with Matter of Tobin v Steisel (supra).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye anc^ Alexander concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Riva Bennett et al., Appellants, v Rockrose Development Corp. et al., Respondents.
    Decided May 2, 1985

      APPEARANCES OF COUNSEL

      Jeff H. Galloway and George D. Sullivan for appellants.

      Steven L. Schultz for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 256). Plaintiffs’ constitutional challenge to the retroactive application of revised Real Property Law § 226-b was considered and rejected in Vance v Century Apts. Assoc. (61 NY2d 716). (See also, Blum v West End Assoc., 64 NY2d 939.)

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


text:
    In the Matter of Helen C. Pollock, Deceased. Lucille Genovese, Respondent; Godfrey P. Schmidt, Appellant; George J. Henke, Respondent.
    Decided May 2, 1985

      APPEARANCES OF COUNSEL

      Godfrey P. Schmidt, appellant pro se, and Kalman I. Nulman for Godfrey P. Schmidt, appellant.

      Milton M. Rosenbloom for George J. Henke, respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, a lawyer, during 1977 prepared a will and codicil for decedent, then approximately 85 years old, in which appellant was named executor, his son substitute executor, and his stepdaughter — who had served as decedent’s companion and housekeeper for some two years — the residual beneficiary of two thirds of the estate. Respondent, executor under decedent’s 1973 will naming her nephew the principal beneficiary, filed objections, challenging decedent’s competence to make the 1977 will and codicil, and alleging that they were procured by fraud and undue influence. Appellant’s motion for summary judgment dismissing respondent’s objections and recognizing appellant’s status as executor was denied by the Surrogate, who found that there were questions of fact requiring trial. This order was affirmed by the Appellate Division which then, without any writing giving the benefit of the court’s views on a presumably significant issue, simply certified to us the question, “Was the order of the Surrogate’s Court, as affirmed by this Court, properly made?”

While summary judgment may be available in probate proceedings (Matter of Pascal, 309 NY 108), that remedy is inappropriate in any case where there are material issues of fact (see, CPLR 3212 [b]). Here, in light of the disputed affidavits and testimony regarding decedent’s condition and the circumstances surrounding the will and codicil, we cannot say that the Surrogate erred in the conclusion that there were triable issues relating to the matters raised by respondent’s objections. While appellant also seeks to challenge the Surrogate’s earlier order permitting respondent to file objections, that order is not before us. Where the jurisdictional predicate for an appeal to this court is a certified question, the appeal brings up for review “only the question or questions so certified”. (NY Const, art VI, § 3 [b] [4].)

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur in memorandum; Judge Alexander taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), on the appeal by Godfrey P. Schmidt, order affirmed, with costs, and question certified answered in the affirmative. Appeal by Lucille Genovese dismissed, without costs, upon the ground that no appeal lies as of right from the nonfinal order of the Appellate Division.


text:
    Son Fong Lum, Appellant, v Domenico Antonelli et al., Respondents, and The Long Island Savings Bank, Appellant. (And Third-Party Actions.) (And Another Proceeding.)
    Argued February 14, 1985;
    decided May 2, 1985

      APPEARANCES OF COUNSEL

      Joseph Schutzman for Son Fong Lum, appellant.

      Matthew Dollinger for The Long Island Savings Bank, appellant.

      Samuel Kirschenbaum for Domenico Antonelli, respondent.

      Michael Permut for Yee Woo Lum and another, respondents.

      Richard T. Farrell for Alfonso Duarte, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to defendants Domenico Antonelli, and Yee Woo Lum and Po Wah Lum (the “defendants Lum”), against plaintiff and defendant The Long Island Savings Bank.

The weight of the evidence more nearly comports with the findings at the Appellate Division (102 AD2d 258). We add only that there is no basis for recovery of attorneys’ fees by the bank against the defendants Lum, or against defendant Antonelli. As to the defendants Lum, any such liability they might have had under the original mortgage was discharged when the mortgage was assumed, with an increased interest rate and term, by Antonelli (see, 38 NY Jur, Mortgages and Deeds of Trust, § 183). Nor can the bank now recover attorneys’ fees against Antonelli, since it asserted no such claim against him below.

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

Order affirmed, etc.


text:
    In the Matter of Harry Vickery, Appellant, v Village of Saugerties, Respondent.
    Decided May 2, 1985

      APPEARANCES OF COUNSEL

      Richard J. Goldman for appellant.

      Daniel N. Lamb, Sr., and Harvey Mandelkern for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs. The Appellate Division did not abuse its discretion as a matter of law (see, Matter of City of New York [James St.], 21 NY2d 293; see also, Amsterdam Sav. Bank v City View Mgt. Corp., 45 NY2d 854).

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


text:
    In the Matter of Stephen Galatti, Respondent, v County of Dutchess et al., Appellants.
    Decided April 25, 1985

      APPEARANCES OF COUNSEL

      Stephen J. Wing, County Attorney, for appellants.

      Thomas D. Mahar, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue is whether petitioner has been demoted in “grade and title” or otherwise subjected to a disciplinary penalty which entitles him to a hearing pursuant to Civil Service Law § 75.

Petitioner was appointed to the position of Director of Continuing Services in the Dutchess County Department of Mental Hygiene. This position is a permanent appointment in the competitive class of the civil service. Petitioner later received the “functional title” of Division Head of Continuing Services. A functional title is an intradepartmental noncivil service title established for administrative convenience. The duties of Division Head and Director are substantially similar and the title of Division Head carries no increase in salary or benefits. Petitioner was subsequently removed from the position of Division Head, without a hearing. Although he retained his grade and civil service title, he lost most of his duties and responsibilities. Petitioner commenced this article 78 proceeding seeking reinstatement. Special Term granted the petition on the ground that petitioner’s dismissal from his functional position was a demotion without a hearing in violation of Civil Service Law § 75. The Appellate Division affirmed and we granted leave to appeal.

Civil Service Law § 75 (1) provides that a person holding a permanent appointment in the competitive class of the civil service “shall not be removed or otherwise subjected to any disciplinary penalty provided in this section” without a hearing (emphasis added). The disciplinary penalties provided in Civil Service Law § 75 (3) include “demotion in grade and title”. In this case, petitioner has not lost his civil service grade or title, nor has he been subjected to any other disciplinary penalty provided in Civil Service Law § 75. Consequently, although petitioner may have been demoted in the sense that he was dismissed from his functional position, he was not demoted within the meaning of Civil Service Law § 75 (3) and thus was not entitled to a hearing.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.