author: Meyer, J.

text:
    Rosa Velazquez, Appellant, v Water Taxi, Inc., et al., Respondents.
    Submitted December 14,1979;
    decided February 12, 1980

      APPEARANCES OF COUNSEL

      Dimitrios C. Fotopoulos for appellant.

      Jacob M. Dinnes, Victor Roger Rubin and William Dinkes for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when the taxi in which she was riding, owned by defendant Water Taxi, Inc., collided with a "hit and run” driver. She commenced arbitration proceedings pursuant to the uninsured motorist indorsement, and a legal action against Water Taxi, the driver Campbell and the driver’s employer, Ramp Maintenance Corp. In the proceeding as well as in the action, plaintiff sought $1,000,000 in damages. The arbitrator rendered an award for $2,500 noneconomic loss, which was reduced to judgment which in turn was satisfied by Water Taxi, a self-insurer. Defendants in the legal action then moved for summary judgment, contending that the arbitration award bars this action. We agree.

It is well settled that the satisfaction of a judgment rendered against one tort-feasor discharges all joint tort-feasors from liability to the plaintiff (Bundt v Wallach's Auto Rental, 21 NY2d 1032, affg sub nom. Bundt v Embro, 27 AD2d 931; Restatement, Judgments, §95; see Goines v Pennsylvania R. R. Co., 6 AD2d 531, 533; cf. Walsh v New York Cent. & Hudson Riv. R. R. Co., 204 NY 58, 62-63). Here, the arbitration award, which was reduced to judgment, and satisfied, represented a recovery against one of the joint tort-feasors, the hit-and-run driver. The arbitrator was authorized to award all sums which plaintiff would have been entitled to recover from the hit-and-run driver or owner, not to exceed $10,000 (Insurance Law, § 167, subd 2-a). As a joint tort-feasor, of course, the hit-and-run driver was legally responsible for the total amount of damages suffered, and not merely those stemming from his own conduct (see, e.g., Klinger v Dudley, 41 NY2d 362, 367; Restatement, Torts, § 875). Thus, the damages awarded by the arbitrator must be considered, prima facie, to be the total damages due plaintiff for her noneconomic loss.

Contrary to plaintiff’s contention, there is no indication that the arbitrator limited his award to those damages directly caused by the hit-and-run vehicle. The award itself stated:

"1. WATER TAXI, INCORPORATED hereinafter referred to as Respondent, shall pay to ROSA VELASQUEZ the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00).

"2. The award is for non-economic loss. No issue as to economic loss was submitted to this arbitration.”

There is an outright direction that Water Taxi pay to Velazquez $2,500 with no limitation. Stipulation "2” is irrelevant for present purposes and at most explains that the award covers loss of a "non-economic” nature, since no claim or proof as to "economic loss was submitted to this arbitration.”

Had plaintiff established that the arbitrator did adjudicate only the dollar value of the hit-and-run vehicle’s apportioned share of the liability, this might well be a different case. In a similar vein, there is no indication that the $10,000 maximum on uninsured motorist awards influenced the amount of damages set by the arbitrator. If the arbitrator had found that total damages were in excess of $10,000, surely he would not have awarded plaintiff the significantly lesser sum of $2,500.

Meyer, J.

(dissenting). Because the majority fails to take account of the difference between plaintiff’s common-law cause of action against Water Taxi for the negligence of its own driver and plaintiff’s right against Water Taxi as a self-insurer answerable in compulsory arbitration for the negligence of the hit-and-run driver whose vehicle collided with the taxi in which plaintiff was a passenger, and improperly imposes upon plaintiff rather than Water Taxi the burden of establishing what the arbitrator in fact decided, I respectfully dissent. The thrust of the majority memorandum is that the taxi driver and the hit-and-run driver were joint tort-feasors, that recovery from one joint tort-feasor bars recovery from any other and that having accepted payment of the judgment based on the arbitration award plaintiff has barred herself from recovery unless she can show that the arbitrator considered only the hit-and-run driver’s liability. Though not disputing the first two legs of the syllogism, I cannot accept the third which in my view runs counter to the purpose of the Legislature in enacting uninsured motorist coverage and to our own prior decisions concerning burden of proof in collateral estoppel cases.

The facts as stated in the majority memorandum are correct so far as they go but require supplementation in the following respects: The collision occurred on May 25, 1974. The civil action which is the subject of this appeal was begun by service of summons on August 19, 1974, and the complaint dated September 12, 1974 was apparently served on defendants’ attorneys on September 19, 1974. Plaintiff’s notice of intention to make a claim under the uninsured motorist indorsement was served September 6, 1974. Plaintiff’s demand for arbitration, served September 28, 1974, stated that the claim was "for personal injuries by Rosa Velazquez in the sum of $1,000,-000.00” but also checked the box next to the words "HIT-AND-RUN”. Defendants moved to stay arbitration on a number of grounds, including that this civil action was pending. Their motion was denied by order entered December 11, 1974, on the basis of a decision in which Mr. Justice Nathaniel Helman pointed to the separateness of the causes of action against Water Taxi in its "two distinct capacities” as the basis for holding that arbitration of the hit-and-run claim was not waived by the bringing of the civil action. The matter then proceeded to arbitration with the result detailed in the majority memorandum, followed by denial of defendants’ motion for summary judgment, and the Appellate Division’s reversal of that denial, the subject of the present appeal.

While it is the general rule that causes of action cannot be split and that, therefore, satisfaction of a judgment obtained against one joint tort-feasor will bar action against any other, that rule, like other phases of the rules of res judicata and collateral estoppel, is predicated upon the policy of conserving judicial resources and preventing harassment of one party by another (cf. White v Adler, 289 NY 34, 42). As with many rules of law, especially those based in policy, the rule is not without exception. Thus it has long been held in New York that when a defendant’s wrongful act causes injury to plaintiff in both person and property, the separate injuries give rise to separate and distinct causes of action and that, therefore, satisfaction of a judgment obtained for one is not a bar to maintenance of an action for the other (Reilly v Sicilian Asphalt Paving Co., 170 NY 40; Timian v Whelan, 128 Misc 192, affd on opn below 219 App Div 859; Finnerty. v Consolidated Tel. & Elec. Subway Co., 82 NYS2d 529; see Jacobus v Colgate, 217 NY 235; and Hunterfly Realty Corp. v State of New York, 74 Misc 2d 345, both holding injury to realty and to personalty to create separate causes of action; see, also, Rosenberg, Collateral Estoppel in New York, 44 St John’s L Rev 165, 168, "seriatim suits may be brought [for personal injury and property damage] without the danger of merger, bar, or the related obstacle of splitting the cause of action”). The basis for the exception we are told in the Annotation entitled Simultaneous Injury to Person and Property As Giving Rise To a Single Cause of Action (62 ALR2d 977, 1003-1004) is "the differences between personal injury and property loss claims in relation to such matters as applicable periods of limitation, assignability and survival, methods of enforcement, measure of damages and their distribution and evidentiary proof’. A further reason for not applying the rule to bar a cause of action is that being a Judge-made rule to promote public policy it should not be applied to frustrate legislatively declared policy, such as the statutory liability created by the State against bank stockholders for the benefit of bank creditors (White v Adler, 289 NY 34, 43-45, supra).

Clearly the exception rather than the rule should be applied in the instant case. The purpose of article 17-A of the Insurance Law is the protection of innocent victims of hit-and-run and other uninsured drivers and the apparent purpose of the arbitration provision included in the indorsement pursuant to statutory authority and the approval of the Superintendent of Insurance (Insurance Law, § 606, subd [b]) is to keep the time and the cost involved in determining the amount to be paid under the indorsement commensurate with the $10,000 per person maximum fixed by subdivision 2-a of section 167 of the Insurance Law. Rights under article 17-A of the Insurance Law are subject to conditions precedent (reporting a hit-and-run accident to the police within 24 hours; filing a notice of intention to make a claim within 90 days, Insurance Law, § 608), while the common-law action is subject only to the three-year limitation provision established by CPLR 214. Article 17-A rights of adults are required to be arbitrated (see footnote above), while a common-law negligence recovery against Water Taxi must be obtained by litigation unless both parties agree to arbitration. The majority memorandum holds satisfaction of the judgment entered on the arbitration award to bar plaintiffs negligence action without any discussion of these policy and procedural differences or of the policies behind the holding of the Reilly line of cases (as distinct from the holding of those cases itself), and notwithstanding that until today the case law has clearly been that subdivision 2-a of section 167 and article 17-A of the Insurance Law contemplate prosecution of the rights of a passenger injured in a collision resulting from the negligence of his or her host and the driver of a hit-and-run vehicle in separate proceedings and in different forums (Matter of O’Brien [Aetna Cas. & Sur. Co.], 33 AD2d 1085; Matter of Powers [Continental Ins. Co.], 29 AD2d 1041; Matter of Alston [Amalgamated Mut. Cas. Co.], 53 Misc 2d 390). The order of the Appellate Division should, therefore, be reversed because, as a matter of law, satisfaction of the judgment entered on the arbitration award cannot bar plaintiff’s common-law action.

Were I to agree that the judgment could collaterally estop plaintiff (as the last paragraph of the majority memorandum seems to suggest), I would nonetheless vote to reverse, for it is the burden of the defendant when he pleads res judicata or collateral estoppel to show that the issue as to which he claims bar, estoppel or preclusion was decided in the prior proceeding. This has long been the rule in New York (Clark v Scoville, 198 NY 279; Lewis v Ocean Nav. & Pier Co., 125 NY 341; Litz Enterprises v Standard Steel Inds., 57 AD2d 34; Rosenberg, op. cit, supra, at p 182; see Rembrandt Inds. v Hodges Int., 38 NY2d 502). Nothing in- the moving papers upon which this appeal is based other than defendant’s ipse dixit supports the conclusion that the arbitrator decided anything more than the dollars and cents value of the hit-and-run vehicle’s apportioned share of the liability. Even under the majority’s theory, therefore, the Appellate Division erred in granting summary judgment and dismissing the complaint, instead of remanding the matter for trial.

For the foregoing reasons, I would reverse the order of the Appellate Division and reinstate the order of Special Term denying defendants’ motion for summary judgment.

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

Order affirmed.

       That personal injury and property damage give rise to two distinct causes action is a principle with which there is no quarrel. But that rule can find no application here, as plaintiff has not asserted separate claims for injury and property damage. Indeed, plaintiff has interposed no claim for property damage. Rather, she has sought to recover from one joint tort-feasor after satisfaction of judgment against another joint tort-feasor.

         That phrase, the institution of the civil action before service of the notice of intention and the simultaneous processing by plaintiffs attorneys of both, negate the conclusion of the Appellate Division majority, based solely upon the amount claimed, that plaintiff had voluntarily submitted both to arbitration. Whether arbitration by an insured of a "hit-and-run” claim be regarded as originating in contract or statute (as to which see Motor Vehicle Acc. bid. Corp. v National Grange Mut. Ins. Co., 19 NY2d 115, 118-119, characterizing the rights of hit-and-run victims as "statutory” in contrast with the contractual. rights of an insured injured by an uninsured motorist) is not determinative of the rights of plaintiff, who had no contract with Water Taxi or the other defendants, and is required to arbitrate her hit-and-run claim against Water Taxi only because section 370 (subd 1, par [b]) of the Vehicle and Traffic Law mandates that a self-insured taxi company’s bond "provide for uninsured motorists coverage in the minimal amount and in the form provided for” in subdivision 2-a of section 167 of the Insurance Law (see, also, Insurance Law, § 606, subd [b]; 11 NYCRR § 60.4; and New York Automobile Accident Indemnification Endorsement Paragraph 7 [requiring arbitration when "any person making claim” and the insurer do not agree]; and Chemick v Hartford Acc. & Ind. Co., 8 AD2d 264, affd 8 NY2d 756 [dictum that a passenger seeking to recover under indorsement is bound by its arbitration provision];, accord Matter of Alston [Amalgamated Mut. Cas. Co.], 53 Misc 2d 390, 395).


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Pablo Juan Maneiro, Appellant.
    Argued December 14, 1979;
    decided February 12, 1980

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

      Lawrence T. Kurlander, District Attorney (Kenneth R. Fisher of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court made a specific factual determination that the People had not contributed in any way to the disappearance of the informant and further found that the People had acted with reasonable diligence in attempting to locate the informant when it became apparent that his testimony might be relevant to defendant’s case. Inasmuch as these findings, which were affirmed by the Appellate Division, were based upon sufficient evidence and were not otherwise infected by error of law, they must be treated as binding for purposes of the present appeal (People v Budd, 46 NY2d 930). Accordingly, under the standards established in People v Jenkins (41 NY2d 307), defendant was not entitled to an automatic dismissal of the charges against him, even though he made a preliminary showing through his own testimony that the informant might have information that would support his position at trial. As we noted in Jenkins (supra, at p 310), "the People should not be penalized when the informant has, on his or her own initiative, effectively disappeared after relinquishment of government control”.

Nor may defendant find solace in that portion of the analysis in Jenkins in which we indicated that dismissal of the charges might be required under certain limited circumstances where the informant’s unavailability is not due to the People’s bad faith or failure to exert diligent efforts to locate him. We stated in Jenkins (at p 311) that, in cases such as this, where the People have in all respects acted in good faith, the defendant will not be entitled to dismissal unless he "demonstrates affirmatively that the testimony of the informant was not only relevant but also that it is likely to have been favorable * * * in tending to exculpate [him]”.

In this case, defendant failed to meet this higher burden of persuasion. His bare, uncorroborated assertion at trial that he and the informant had prepared "dummies”, packets of harmless powder disguised to resemble heroin, in order to dupe the undercover officer was insufficient to establish that the informant’s testimony would likely have been exculpatory, particularly in view of the fact that no explanation was offered regarding how the purported "dummies” were transformed into packets of real heroin before they were delivered by defendant and the informant to the officer. Under these circumstances, defendant’s testimony standing alone did not warrant dismissal of the charges against him solely because the informant was unavailable to testify at trial.

Finally, we note that the prosecutor’s refusal to disclose the name and address of the informant prior to trial does not present a reviewable question of law in this case, since defendant failed to challenge the adequacy of the People’s bill of particulars at the appropriate time (CPL 470.05, subd 2). Moreover, even if there were no jurisdictional barriers to our considering this question, we would not reverse on this record, since defendant failed to demonstrate his need for the information during the pretrial proceedings and since disclosure was in fact ordered as soon as it appeared that the informant’s testimony might be relevant (see People v. Peltak, 45 NY2d 905; People v Goggins, 34 NY2d 163).

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

Order affirmed in a memorandum.


author: Per Curiam.

text:
    Liang Ren-Guey, Appellant, v Lake Placid 1980 Olympic Games, Inc., Respondent.
    Argued February 12, 1980;
    decided February 12, 1980

      APPEARANCES OF COUNSEL

      Bernard H. Goldstein, David M. Goldberg and Glenn Reisman for appellant.

      William S. Greenawalt and William Kissel for respondent.

      Benjamin R. Civiletti, Attorney General (Mark C. Rutzick, Alice Daniel, George H. Lowe and Dennis Linder of counsel), for the United States.
   OPINION OF THE COURT

Per Curiam.

In view of the statement of interest submitted by the Attorney General of the United States on behalf of the Department of State pursuant to section 517 of title 28 of the US Code, we are persuaded that the courts of our State must refrain from the exercise of jurisdiction to resolve a dispute which has at its core the international "two-Chinas” problem.

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

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

Order affirmed.


text:
    In the Matter of Randolph Jenkins, Appellant, v Sybil H. Kooper, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted January 28, 1980;
    decided February 12, 1980
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Darrell Sargent, Appellant, v John R. Starkey, as a Justice of the Supreme Court, Kings County, et al., Respondents.
    Submitted January 28, 1980;
    decided February 12, 1980
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion for poor person relief dismissed as academic.


author: Meyer, J. Wachtler, J.

text:
    The People of the State of New York, Respondent, v Robert Marino, Appellant.
    Argued January 10, 1980;
    decided February 14, 1980
    APPEARANCES OF COUNSEL

      Richard A. Greenberg and Gretchen White Oberman for appellant.

      John J. Santucci, District Attorney (Ira I. Schreiber and Charles N. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sole issue raised for our consideration is whether the absence in the record of proof that the District Attorney complied with the direction of the court issuing the warrant to file interim progress reports during the pendency of a wiretap necessitates suppression of the tapes obtained pursuant to that warrant.

The wiretap was authorized by an eavesdropping warrant issued on March 14, 1974 which required that "reports * * * be made to this Court by the District Attorney of Queens County, or his agent, fifteen (15) days after the installation of the electronic equipment stating the substance of the conversations seized and the progress of the investigation”. The record does not disclose compliance with this direction. On April 16, 1974, based on an application which reported the results of the ¡entire month’s interceptions, the eavesdropping warrant was extended for a second 30-day period.

The statute (CPLR 700.50, subd 1) does not itself require the filing of interim reports; rather it authorizes the issuing court to require such reports, apparently to facilitate judicial supervision of the wiretap. Whatever may be the range of judicial sanctions for failure to comply with such a directive, failure to do so, at least in the absence of any demonstration of substantial prejudice to the defendant, does not require suppression of the tapes or of derivative evidence. In this instance, defendant claims no prejudice other than pointing to the speculative possibility that had the required report been made the tap might have been terminated. Even this theoretical possibility may be disregarded in this instance, however, in view of the subsequent issuance of the extension order based on the delayed but more comprehensive report of the results of the original tap. In any event we observe that, while an interim report if filed as directed might have precipitated a termination of the wiretap by the issuing Justice, the failure to file such a report in no way exposed the intercepts themselves to risk that their fidelity might be compromised.

Meyer, J.

(concurring). I concur in the result on the ground that the evidence adduced at the hearing shows that the evidence that would be suppressed was available in other forms and that, therefore, any error in failure to suppress the tapes was harmless (cf. People v Grant, 45 NY2d 366).

Wachtler, J.

(dissenting). The order of the Appellate Division should be reversed and the motion to suppress granted.

In the course of an investigation into alleged illegal drug activity the District Attorney of Queens County obtained a wiretap warrant in order to determine the source of the drugs and identify the suppliers. The warrant, issued on March 14, 1974, authorized interceptions for a period of 30 days. It provides, however, that "reports shall be made to this Court by the District Attorney of Queens County, or his agent, fifteen (15) days after the installation of the electronic equipment stating the substance of the conversations seized and the progress of the investigation.” On April 16 the warrant was extended for an additional period of 30 days. Despite the extended telephonic surveillance the drug suppliers were never found.

At a hearing held on the defendant’s motion to suppress the People were unable to show that they had made a progress report to the issuing Justice at the end of the initial 15-day period as required by the warrant. Indeed even on the day the original warrant was due to expire and an extension was needed, they did not report to the Justice who had issued the warrant, but applied instead to another Justice who was then at a funeral parlor attending the wake of the assistant prosecutor who had previously been in charge of this investigation.

Nevertheless the People argued at the suppression hearing that the court should excuse their failure to make progress reports on the theory that the second Justice implicitly did so by signing the extension order, and that the issuing Justice presumably would have done the same. The suppression court agreed, additionally observing that the reporting requirement was in any event purely ministerial in nature.

Central to all requirements relating to authorized wiretapping is the concept of strict judicial supervision. The sensitivity of the subject matter — the intimate and apparently confidential conversations of individuals — and the duration of the intrusion, often extending over several months, requires the courts to be especially vigilant in insuring that this particular type of search be conducted in strict compliance with all legal requirements and limitations. The court’s role is not to passively monitor but to actively regulate the activity from the original warrant application through all phases of its execution (see, e.g., People v Washington, 46 NY2d 116, 124).

A court issuing a wiretap warrant may direct that the prosecutor periodically report on the progress of the investigation (CPL 700.50, subd 1). This permits a conscientious court to make an informed judgment as to whether there is in fact a "need for continued eavesdropping” (CPL 700.50, subd 1). It is a practice for which the court has expressed a "strong preference” (People v Floyd, 41 NY2d 245, 253).

By statute, once the court directs the prosecutor or his agent to make progress reports, the requirement is mandatory (CPL 700.50, subd 1), like the requirement that the tapes be sealed upon the expiration of the warrant (CPL 700.50, subd 2). We have held that this latter requirement must be strictly observed by those executing the warrant. A failure to seal the tapes (People v Nicoletti, 34 NY2d 249) or any unwarranted delay in doing so (People v Washington, 46 NY2d 116, supra) calls for suppression of the evidence. Indeed even when the tapes have been sealed, any unauthorized breaking of the seals, if only on the eve of trial in order to prepare the case, must nevertheless result in suppression of the evidence (People v Sher, 38 NY2d 600). It is also important to note that this failure to fully observe the sealing requirement was held to be fatal, even though the lower court could have authorized unsealing, and presumably or implicitly did so or would have done so, in view of its later admission of the unsealed tapes at trial'over defense objections.

In these cases, law enforcement officials were placed on notice that they "must be sensitive to the fact that, just as a warrant to wiretap may only be granted upon a showing of strict compliance with the law, so will its execution have been for nought unless there has been meticulous adherence to the terms of the warrant and the statute pursuant to which it issued” (People v Washington, supra, p 124). We have noted that strict compliance with the warrant, requirements serves to prevent potential abuses. There is no need for the defendant to show actual prejudice when the authorities have violated the warrant’s terms (People v Nicoletti, supra, p 253; People v Sher, supra, pp 604, 605; People v Washington, supra, p 123).

The requirement that the authorities make progress reports when directed by the court is no less important than the requirement that they seal the tapes when the warrants have expired. The sealing requirement is principally designed to insure the authenticity of evidence which has already been seized (People v Washington, supra, p 123). The progress report requirement, on the other hand, enables the court to actively control and minimize the State’s intrusion on private conversations. That is not a collateral consideration, nor is it a purely ministerial task. On the contrary it is the. court’s primary obligation in overseeing wiretap activities under the Fourth Amendment.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Eddie Howell, Appellant.
    Argued January 10,1980;
    decided February 14, 1980

      APPEARANCES OF COUNSEL

      Michael Young for appellant.

      Mario Merola, District Attorney (Philip M. Gaynor and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted, and the plea vacated.

The trial court was in error in its conclusion that merely because reckless driving is a misdemeanor rather than a traffic violation, the arrest was inevitable. An arrest in a situation such as was presented in this case was neither called for nor the preferred procedure (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 150.20).

Based on no more than what the police considered to be erratic driving on the part of the defendant, they approached the defendant with guns drawn and proceeded to "frisk” the defendant. The police officer testified at the suppression hearing that this search was conducted on his belief that the defendant might be armed; however, there is no testimony or finding as to what circumstances led the police officer to that conclusion.

The defendant was never informed that he was under arrest for reckless driving and was never charged with that offense. As we observed in People v Troiano (35 NY2d 476, 478): "There is, perhaps, an area of traffic violation 'arrest’ where a full-blown search is not justified, but it might seem to be confined to a situation where an arrest was not necessary because an alternative summons was available or because the arrest was a suspect pretext (cf. People v. Marsh, 20 N Y 2d 98; People v. Adams, 32 N Y 2d 451, 455, and dissenting opn. at pp. 456-457; but see A. L. I., Model Code of Pre-Arraignment Procedure [O.D. No. 1, 1972], § SS230.2, including, however, the accompanying note).”

On the facts of this case, the police conduct would fall within that rule.

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

Order reversed, motion to suppress granted, plea vacated and indictment dismissed in a memorandum.


text:
    In the Matter of Matthew J. Troy, Jr., Appellant, v Howard Jones, as Acting Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted February 4, 1980;
    decided February 14, 1980
   Motion for leave to appeal and for a stay dismissed, and cross motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, each upon the ground that the issues presented are moot.


text:
    Pan American World Airways, Inc., Respondent, v Overseas Raleigh Manufacturing, Ltd., Appellant.
    Submitted February 7,1980;
    decided February 14, 1980
   Motion for a stay denied, without prejudice to appellant’s right to obtain an automatic stay upon the posting of security pursuant to CPLR 5519 (subd [a], par 2).


text:
    Leonard Pressler, Appellant, v New England Traders, Inc., et al., Respondents.
    Submitted February 4, 1980;
    decided February 14, 1980
   Motion for clarification, etc., denied. [See 48 NY2d 1005.]


text:
    Port Authority of New York and New Jersey, Respondent, v Port Authority Police Benevolent Association, Inc., et al., Appellants.
    Argued January 11, 1980;
    decided February 20, 1980
    APPEARANCES OF COUNSEL

      David Schlachter for appellants.

      Arthur P. Berg, Patrick J. Falvey and Joseph Lesser for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the application for a stay of arbitration should be denied.

Section 21 of the memorandum of agreement between the parties provides expressly that an alleged violation of any of the agreement’s provisions (with one exception not relevant here) is subject to the grievance-arbitration procedure, and a grievance is defined for such purposes "as a complaint limited to the application or interpretation by the Port Authority of any provision of the Memorandum of Agreement * * * which application or interpretation is alleged to constitute a violation of the said Memorandum of Agreement or any provision thereof’. PAI 20-1.10, which is incorporated into the memorandum of agreement by section 26 thereof and which delineates the disciplinary procedure to be employed, states unequivocally that "[n]o disciplinary action shall be taken against any permanent classified employee except for good and sufficient cause or reason”.

The essence of the grievance here is not only that Officer Manente was not guilty of the improprieties charged, but, also, that even if he were guilty, his actions "do not constitute sufficient grounds for discipline”. Inasmuch as this grievance involves , a claimed violation of the substantive provision incorporated in the memorandum of agreement — transgression of the standard "good and sufficient cause or reason” — and the arbitrator is empowered to resolve grievances involving the application or interpretation of the collective bargaining agreement by the Port Authority, the parties contemplated by their agreement that this grievance be submitted to arbitration. While we agree with respondent Port Authority that review of the departmental proceeding by an arbitrator in this matter gives rise to a cumbersome, even duplicative, proceeding, the parties, by their agreement, have charted their own procedural course and must be held to the terms thereof.

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

Order reversed, etc.


text:
    Julie A. Jump, an Infant, by Her Parent, Robert G. Jump, et al., Appellants, v Donna Jump, Respondent. Jeri L. Jump, an Infant, by Her Parent, Robert G. Jump, et al., Appellants, v Donna Jump, Respondent.
    Argued February 8, 1980;
    decided February 20, 1980

      APPEARANCES OF COUNSEL

      Thomas E. Reilly for appellants.

      John J. Ryan, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Donigi v American Cyanamid Co., 43 NY2d 935). Although the order of the Appellate Division recites that the reversal was on the law, the memorandum of the Appellate Division makes clear that it was predicated on that court’s view of the weight of the evidence.

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


text:
    The People of the State of New York, Appellant, v Dominick Maschi, Respondent.
    Argued February 14, 1980;
    decided February 20, 1980

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Meredith Anne Feinman and Robert M. Pitler of counsel), for appellant.

      E. Thomas Boyle for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for further consideration in accordance with this memorandum.

One of the substantive issues tendered for consideration on this appeal is whether it was proper to permit the prosecutor on cross-examination to impeach an eyewitness to defendant’s arrest, called by the defense, for failure to report to law enforcement authorities or the office of the District Attorney exculpatory information to which he testified on trial. The Appellate Division held that the issue had been preserved for appellate review and that such cross-examination was "unfair and improper” and "impinged upon defendant’s right to a fair trial”, mandating a new trial (65 AD2d 405).

Our examination of the record discloses that defendant did not register a timely or effective protest to the challenged cross-examination and therefore failed to preserve the error, if any, for appellate review. After the prosecutor, without objection, had asked some 19 questions relevant to the failure of the witness to come forward, when he asked the twentieth, capping question defense counsel interposed an unembellished "objection” which was overruled. We conclude there was no timely objection to this line of cross-examination and note that when objection was finally made defense counsel did not advance the theory of error which he now asserts (22 NYCRR 604.1 [d] [4]).

In this procedural posture, the case must be remitted to the Appellate Division for that court to determine whether to exercise its discretionary power to review defendant’s claim of reversible error in the absence of adequate protest and, if it so determines, then to rule thereon (People v Cona, 49 NY2d 26, 33-34). We do not reach or consider other assertions of error advanced by defendant.

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

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


text:
    The People of the State of New York, Appellant, v Charles Darrisaw, Respondent.
    Argued. February 6, 1980;
    decided February 20, 1980

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Kenneth Larywon, Alan D. Marrus and Colin A. Moore of counsel), for appellant.

      David H. Shapiro for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for further consideration in accordance with this memorandum.

The substantive issue tendered for consideration on this appeal is whether defendant, on trial for sale and possession of controlled substances, was entitled to a charge with respect to an agency defense. The Appellate Division held that this issue had been preserved for appellate review and that "in the circumstances of this case, the failure to charge agency constituted reversible error” (68 AD2d 822, 823).

Our examination of the record discloses that defendant did not register a protest to the omission to charge with respect to the agency defense and therefore failed to preserve the error, if any, for appellate review. It is true that in argument at the close of the prosecution’s case with respect to limitations on cross-examination of defendant should he take the witness stand (see People v Sandoval, 34 NY2d 371), reference was made to attempts that might be made through defendant’s testimony to establish an agency defense. At the close of all the evidence, however, defense counsel made no request for such an instruction, made no mention of it in his summation, and took no exception at the conclusion of the court’s charge which made no reference to the subject.

In this procedural posture, the case must be remitted to the Appellate Division for that court to determine whether to exercise its discretionary power to review defendant’s claim of reversible error in the absence of adequate protest and, if it so determines, then to rule thereon (People v Cona, 49 NY2d 26, 33-34).

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

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


text:
    In the Matter of the Guardianship of Daniel Aaron D., an Infant. Louise Wise Services, as Guardian and Custodian of Daniel Aaron D., Respondent; Phoebe D., Appellant.
    Argued January 11, 1980;
    decided February 20, 1980

      APPEARANCES OF COUNSEL

      Terry Milburn for appellant.

      Michael A. Neff for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted for a new hearing for the reasons stated and in accordance with the dissenting opinion of Mr. Justice Arnold L. Fein at the Appellate Division.

Under former section 384 (subd 7, par [a]) of the Social Services Law, the constitutionality of which has not been challenged here, before a court severs parental ties in a proceeding of this sort the parent must have been found to be "presently and for the foreseeable future unable to provide proper and adequate care, by reason of mental illness”. Section 384 (subd 7, par [d]) requires that the finding of mental illness be made "only upon clear and convincing proof’. There must be strict adherence to that statutory mandate. In this proceeding the agency did not meet its burden.

The record of the hearing presents a sharp conflict in the opinions expressed by the psychiatrists as to the present condition and future capacity of the mother to care for and assume custody over her child. Although the matter of credibility is clearly one for the trial court, we agree with the dissenters at the Appellate Division that the doctor testifying on behalf of the agency was equivocal as to the natural mother’s inability to provide adequate care "for the foreseeable future”. In addition the doctor had last examined the mother 10 months prior to the hearing and could not render with assurance any positive opinion as to her present condition. Under these circumstances a new hearing should be held after a current psychiatric examination is directed by the Family Court.

CPLR 1201 provides, in part, that a person shall appear by guardian ad litem "if he is an adult incapable of adequately prosecuting or defending his rights”. Although we cannot say in this case that the appointment of a guardian to represent the interests of the mother was mandated by statute, the magnitude of the rights at stake, as well as the allegations of mental illness, indicate that the court on the rehearing of this matter should seriously consider whether the mother’s interests can be adequately protected except by the appointment of a guardian.

We also agree with the dissenters that the exclusion of the mother from the courtroom during the testimony of the court-appointed psychiatrist was error. There is nothing in the record to indicate that there was a compelling necessity for her exclusion nor is there an indication of a knowing and intelligent waiver by her of her right to be present during the crucial testimony upon which the court relied to terminate her rights.

Judges Jones, Wachtler, Fuchsberg and Meyer concur. Chief Judge Cooke and Judges Jasen and Gabrielli dissent and vote to affirm for reasons stated in the memorandum of the Appellate Division (66 AD2d 728).

Order reversed, with costs, and the motion remitted to the Family Court, New York County, for a new hearing in a memorandum.


text:
    Maria Marzan, Appellant, v Park Avenue Enclosed Market Merchants Association, Inc., Respondent.
    Submitted January 11, 1980;
    decided February 20, 1980

      APPEARANCES OF COUNSEL

      Ernest Holzberg for appellant.

      William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 849).

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


text:
    Automated Ticket Systems, Ltd., Appellant, v John D. Quinn, as Director of the New York State Division of the Lottery, et al., Respondents.
    Argued February 6, 1980;
    decided February 20, 1980;
    remittitur amended April 1, 1980

      APPEARANCES OF COUNSEL

      Samuel Gottlieb and Milton Shalleck for appellant.

      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by deleting therefrom the words "and complaint dismissed” and as modified affirmed on the memorandum of the Appellate Division, without costs. What was transferred to Albany Supreme Court by New York County Supreme Court was a motion made in the New York County action, which the court held was more properly the subject of an article 78 proceeding. The underlying action was not transferred and the record does not reveal whether it is still pending in New York County. It was, therefore, error on appeal from the judgment in the Albany County article 78 proceeding to dismiss the complaint in the New York County declaratory judgment action.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.

April 1, 1980

Motion to amend remittitur, considered as a motion to amend memorandum, granted to the extent that the first sentence of the memorandum is replaced with the following two sentences: The order of the Appellate Division is modified by deleting therefrom the words "and complaint dismissed” and inserting in lieu thereof the words "without prejudice to plaintiff raising the issues sought to be litigated in the article 78 proceeding in such other litigation as plaintiff may be advised to pursue, including, if it be still pending, the action originally brought in New York County.” As so modified the order is affirmed on the memorandum of the Appellate Division, without costs.


text:
    The People of the State of New York, Appellant, v Willie Clemons, Respondent.
    Argued February 6,1980;
    decided February 20, 1980
   Appeal dismissed upon the ground that the Appellate Division determination of modification was not "on the law alone” (CPL 450.90, subd 2, par [a]; People v Johnson, 47 NY2d 124; People v Adams, 46 NY2d 1047).


text:
    The People of the State of New York, Appellant, v Rafael Lanzot, Respondent.
    Argued February 4, 1980;
    decided February 20, 1980
   Appeal dismissed upon the ground that the Appellate Division determination of reversal was not "on the law alone” (CPL 450.90, subd 2, par [a]; People v Johnson, 47 NY2d 124).


text:
    Hyman Horowitz et al., Respondents, v Michael Haselkorn, Appellant.
    Submitted February 4, 1980;
    decided February 20, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 16, pp 68-69).


text:
    Myron M. Hunt et al., Doing Business as Mymar Associates-Georgia, Respondents, v Bankers and Shippers Insurance Company of New York, Appellant.
    Submitted January 28, 1980;
    decided February 20, 1980
   Motion to dismiss in part the appeal herein denied.


text:
    State Division of Human Rights, on the Complaint of Kwesimanni Y. Abintenya, Appellant, v FMC Corporation, Respondent.
    Decided February 20, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved and upon the further ground that there was no dissent at the Appellate Division.


text:
    In the Matter of Upset, Inc., Appellant, v Public Service Commission et al., Respondents.
    Submitted November 26, 1979;
    decided February 20, 1980
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]; Matter of Weinstock, 37 NY2d 748). Motion to treat motion for leave to appeal as notice of appeal denied (CPLR 5514, subd [a]; 5515).


text:
    Samuel Volk, Appellant, v State Division of Human Rights et al., Respondents.
    Submitted February 4, 1980;
    decided February 20, 1980
   Motion by respondent Yeshiva University to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie as of right (CPLR 5601).


text:
    Nicholas J. Meleo et al., Appellants, v Rochester Gas & Electric Corporation et al., Appellants, and Dollinger Corporation, Respondent. (And 20 Other Titles.)
    Submitted February 4, 1980;
    decided February 20, 1980
   Motions by respondent Dollinger Corporation to dismiss appeals taken as of right by (A) plaintiffs Meleo et al., (B) defendant Rochester Gas & Electric Corporation, (C) defendant Fisher Controls Co., (D) defendant Rockwell Manufacturing Company, and (E) defendant Web Seal, Inc., granted, said appeals dismissed, with costs and $20 costs of each motion, and, on the court’s own motion, appeals taken as of right by defendants Meleo et al., dismissed, without costs, upon the ground that the orders appealed from do not finally determine the actions within the meaning of the Constitution. Motions by (F) Rochester Gas & Electric Corporation, (G) Rockwell Manufacturing Company, (H) Web Seal, Inc., and (I) Meleo et al., as defendants, for leave to appeal to the Court of Appeals each dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Lawrence Gaines, Appellant, v Everett Jones, as Superintendent of Great Meadow Correctional Facility, et al., Respondents.
    Submitted January 14, 1980;
    decided February 20, 1980
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion for assignment of counsel, etc., dismissed as academic.


text:
    Jacob M. Shapiro, Appellant, v Aetna Casualty and Surety Company, Respondent, et al., Defendant.
    Submitted January 28, 1980;
    decided February 20, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 39).


text:
    Suffolk Housing Services et al., Appellants, v Town of Brookhaven et al., Respondents.
    Submitted January 7,1980;
    decided February 20, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination of the Appellate Division.


text:
    Robert O. Williams, Respondent, v City of Buffalo et al., Appellants, et al., Defendants.
    Submitted February 4,1980;
    decided February 20, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    In the Matter of Al Obermeier et al., Appellants, v Stanley P. Amelkin et al., Constituting the Zoning Board of Appeals of the Town of Huntington, Respondents, and Carinthia Heights Civic Association, Inc., IntervenorRespondent.
    Argued February 5, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Malcolm L. Tillim and Anthony J. Sacca for appellants.

      Ronald Glickman, Town Attorney (Frank J. Mack of counsel), for respondents.

      Steven M. Schapiro for intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (65 AD2d 574).

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


text:
    In the Matter of the Arbitration between Todd Shipyards Corporation, Appellant, and Marine Vessel Leasing Corporation et al., Respondents.
    Argued February 7,1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Herbert L. Fenster, of the District of Columbia Bar, pro hac vice, and Robert J. Kheel for appellant.

      Grant B. Hering, Benjamin Sendor and Aurora Christidis for respondents.
   OPINION OF THE COURT

Appeal from the order of the Appellate Division, entered January 18, 1979, which granted respondents’ motion to strike portions of petitioner’s appendix dismissed, without costs, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. The Appellate Division orders of affirmance, entered January 18, 1979, affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (67 AD2d 646) and in the opinions by Mr. Justice Nathaniel T. Helman at Special Term.

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


author: Jasen, J.

text:
    Anthony Leone, an Infant, by Rosemary Leone, His Mother, et al., Respondents, v City of Utica, Appellant.
    Argued February 6, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Lawrence P. George, Corporation Counsel (Bernard Samuels and Eric M. Alderman of counsel), for appellant.

      Earle C. Bastow, Waddie N. Kalil and John E. Hunt for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed with costs, for those reasons relating to duty and proximate cause stated in the opinion of Presiding Justice Michael F. Dillon at the Appellate Division (66 AD2d 463). We note, in addition that the trial court did not abuse its discretion in denying appellant’s belated application for permission to assert a cross claim.

Jasen, J.

(concurring). While I vote for affirmance, I do so solely on constraint of this court’s prior decision in Scurti v City of New York (40 NY2d 433). In my opinion, it is both unreasonable and improvident to hold a landowner liable for personal injuries sustained on adjoining property which he does not own, where, as here, the precautions which the landowner would be required to undertake to prevent such injury would be unduly burdensome.

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

Order affirmed, with costs, in a memorandum.


text:
    Vito Camporese et al., Plaintiffs, v Port Authority of New York and New Jersey et al., Defendants-Appellants and Third-Party Plaintiffs-Appellants. Bentley Painting Co., Inc., Third-Party Defendant-Respondent.
    Argued February 5, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      William H. Morris and Maurice Carrion for appellants.

      William F. McNulty, Joseph W. Conklin and Anthony J. McNulty for respondent.
   OPINION OF THE COURT

Memorandum.

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

This case is governed by the law of New Jersey. Under the decisional law of that State a third-party action for common-law indemnity or contribution does not lie against the employer of the injured workman where, as here, the injury sustained by the employee is covered by workers’ compensation insurance (Arcell v Ashland Chem. Co., 152 NJ Super 471; Farren v New Jersey Turnpike Auth., 31 NJ Super 356; cf. Schweizer v Elox Div. of Colt Inds., 70 NJ 280, 288; see 2A Larson, Workmen’s Compensation Law, § 76.21, pp 14-295 to 14-298). There is no basis for concluding, as appellant urges, that the present case falls within some "special legal relationship” exception referred to in the Arcell case.

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

Order affirmed.


text:
    In the Matter of Patricia A. Mercurio, Respondent, v New York State Liquor Authority, Appellant.
    Submitted February 5, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Robert Conciatori and Warren B. Pesetsky for appellant.

      Harvey A. Arnoff for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner argues that the authority’s disapproval of her application was premised solely and, hence, impermissibly, on the fact of her marriage to one whom the authority considered an unacceptable licensee. There was more here, however, including petitioner’s admitted inexperience in the management of such an enterprise and her avowed intention not to terminate her present employment, which meant that she frequently would not be present during operating hours. Upon this record, taken as a whole, including the fact the husband had previously been found to have operated a licensed establishment as an undisclosed principal, there appearing a reasonable basis to support the authority’s considered judgment that petitioner would not be the sole party in interest in the premises or the applied for license, its action cannot be said to be arbitrary or capricious (Matter of Wager v State Liq. Auth., 4 NY2d 465, 468; see Matter of Intino v Hostetter, 29 AD2d 625; Alcohol Beverage Control Law, §§ 2, 17).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli dissents and votes to affirm in the following memorandum: Since I cannot concur in the majority’s blithe acceptance of a determination premised solely upon the abhorrent concept of guilt by association, I vote to affirm the judgment appealed from for the reasons stated in the memorandum at the Appellate Division (70 AD2d 953).

Judgment reversed, etc.


text:
    In the Matter of Alice J. Schilling, Appellant, v Frank X. Garguilo et al., Constituting the Board of Elections of the City of New York, and Maxwell M. Rabb et al., Respondents.
    Argued March 17, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Richard E. Coven for appellant.

      Robert D. Clark for respondents.
   OPINION OF THE COURT

Memorandum.

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

The disposition of this election case turned wholly on factual determinations beyond the power of our court to review; we perceive no questions of law on which the grant of leave to appeal could have been predicated. The effect of any inference to be drawn from the failure of certain individuals to take the witness stand was for resolution by the Special Referee, Special Term and the Appellate Division. Their unanimous refusal to accord conclusive effect to such inference could not be error as a matter of law.

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

Order affirmed.


text:
    Robert R. Cooper et al., Respondents, v Ateliers de la Motobecane, S. A., Appellant.
    Argued February 4, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Richard Kent Bernstein and Pierre Cournot for appellant.

      James David Jacobs and Richard Stewart Heller for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the judgment of Supreme Court, New York County, denying the application for a stay of arbitration, reinstated (see Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358).

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


text:
    The People of the State of New York, Respondent, v George Baffi, Appellant.
    Argued February 5, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Richard I. Rosenkranz for appellant.

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

Memorandum.

Defendant George Baffi appeals, on grounds of ineffective assistance of counsel, from his conviction of possession of gambling records in the first degree, and promoting gambling in the second degree.

George and his brothers Albert and Nicholas were identically charged in a single indictment, based on evidence gathered in the search of an apartment pursuant to a warrant.

George and Nicholas were present in the apartment when the police, with a no-knock warrant, broke in through a rear window to search for gambling records and paraphernalia; Albert entered the apartment while the search was in progress. The police found various gambling records in the apartment and on the persons of George and Albert, but not on Nicholas. The police also noted certain spontaneous statements made by George during the search.

At trial one attorney represented all three defendants. The jury convicted George and Albert, but acquitted Nicholas!

During the course of a pretrial suppression hearing the attorney for the three defendants made this statement: "Your Honor, we’re going to go ahead but I want to put on the record, I advised these defendants of the possibility of a conflict in this case and they wish [me to] represent each and everyone of them; however, in the event that on further discussions with the defendants, there is a possibility of maybe another attorney representing one or two of them, this will not hinder the trial in any way whatsoever. I just want to put this on the record, of what I advised the defendants of to protect myself. Thank you very much.” The trial court gave no response and made no further inquiry, nor did the defendants, who were apparently present, make any statements.

Although the trial court may place some reliance on the statement by counsel that he has informed his clients of the pitfalls of joint representation and gotten their consent. (People v Gomberg, 38 NY2d 307), such a statement alone does not relieve the trial court of the obligation "independent of the attorney’s obligation” (People v Macerola, 47 NY2d 257, 263) to probe the defendants’ awareness of the risks in the manner suggested by our discussion in Maceróla. It is clear on this record that the trial court did not make the necessary inquiry. The failure to do so, however, does not mandate a new trial unless the defendant demonstrates an actual conflict of interest "or at least the significant possibility thereof’ (Macerola, at p 264).

In this case, pronounced variations in the type and quantum of evidence against each defendant suggested different theories and tactics of defense for each. For example, the thrust of George’s defense was the fruit of the poisonous tree doctrine, as the search warrant was based on a controverted wiretap. Albert, as a latecomer to the apartment, had an illegal search and seizure argument. Nicholas, of course, as no records were discovered on his person, might have attempted to contrast that circumstance with the alleged possession by the others.

Such variations clearly manifested a "significant possibility” of conflict and mandated an independent inquiry by the trial court. Failure to make that inquiry necessitates reversal and a new trial.

Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Chief Judge Cooke and Judge Gabrielli concur on constraint of People v Macerola (47 NY2d 257).

Order reversed and a new trial ordered in a memorandum.


text:
    In the Matter of Frank P. Di Marsico, Appellant, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued February 5, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Frank H. Penski for appellant.

      Robert Abrams, Attorney-General (Clifford A. Royael and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (68 AD2d 971), to which we add only that the power of the commissioner to revoke prescription forms under subdivision 5 of section 3338 of the Public Health Law extends to any person who fails to comply with article 33 whether that person be licensed pursuant to that article or a physician who is permitted to dispense controlled substances, because he is a licensed practitioner, without a separate article 33 license (see § 3302, subd 28; § 3331).

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


text:
    Harry H. MacDowall, Respondent, et al., Plaintiff, v Koehring Basic Construction Equipment et al., Defendants-Appellants and Third-Party Plaintiffs-Appellants. Merritt-Meridian Corp., Third-Party Defendant-Respondent.
    Argued February 6, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      William F. McNulty and Anthony J. McNulty for appellants.

      V. Frank Cline for plaintiff-respondent.

      Eugene J. McGuinness for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. In view of the concession by Koehring’s trial counsel that the indemnity clause presented a jury question only if the underlying action was "submitted to the jury on a matter of something other than design”, it was not error for the Trial Judge, who later charged the jury on design negligence only, to dismiss the third-party complaint.

Nor is there any basis for reversal of the judgment in favor of plaintiff in the main action. There is evidence in the record from which the jury could have found that there was no design mechanism to hold the seat other than a cotter pin, that the cotter pin could come out without the operator being aware of it, that if the spring mechanism did not elevate the seat it would have to be lifted manually, that with the cotter pin out the seat could be removed, that dirt could get into the pipe holding the spring mechanism and restrict its movement, that with the seat removed and no other restraint the spring was an instrument of danger and that a positive restraint could have been designed and applied to the seat with relatively little cost in relation to the value of the machine. That evidence was clearly sufficient to present jury questions on negligence, foreseeability and proximate cause.

On the issue of contributory negligence, which is a jury question in all but the clearest cases (Wartels v County Asphalt, 29 NY2d 372), there was likewise no error for there was evidence that plaintiff was unaware of the presence of the spring or of its pressure and that when the seat was removed it could only be seen if one leaned back.

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

Order affirmed.


text:
    Bank of Suffolk County, Respondent, v Kenneth Kite, Defendant, and Francis J. Ryan, Appellant. (And a Third-Party Action.)
    Submitted February 7, 1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      David E. Sallah for appellant.

      Morris Shapiro and Jerome M. Luks for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is trué that parol evidence may be admissible to prove a condition precedent to the legal effectiveness of a written agreement if the condition is not contradictory or at variance with its express terms (Hicks v Bush, 10 NY2d 488, 491; see Long Is. Trust Co. v International Inst, for Packaging Educ., 38 NY2d 493, 496-497). But that rule is inapplicable on the facts here. The allegedly unexpressed condition to the promissory note — that defendants, despite their having signed as makers of the note, were not to be held personally liable — was clearly inconsistent with not only the unqualified form of this negotiable instrument, but with its explicit waiver of "the right to interpose any defense, set-off or counterclaim whatsoever” as well (see Fleck v Bank of Suffolk County, 67 AD2d 676, 677; Meadow Brook Nat. Bank v. Bzura, 20 AD2d 287, 290). Defendants’ averments that there existed an oral understanding that they would not be liable on the note did not therefore stand in the way of plaintiff’s motion for summary judgment.

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

Order affirmed.


text:
    Nicole Erneta, an Infant by Her Mother and Natural Guardian, Wanda Erneta, et al., Respondents, v Princeton Hospital, Defendant, and F. Thomas Wilson et al., Appellants.
    Argued February 8,1980;
    decided March 18, 1980

      APPEARANCES OF COUNSEL

      Michael B. Schad and Anthony L. Schiavetti for appellants.

      Mark B. Wiesen for respondents.
   OPINION OF THE COURT

Order reversed, with costs, the order of Supreme Court, New York County, reinstated, and question certified answered in the negative (see Rush v Savchuk, 444 US 320).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judge Jasen concurs in the following memorandum.

Jasen, J.

(concurring). While I join my colleagues in reversing the order of the Appellate Division, I would have preferred an institutional reassessment of Seider v Roth (17 NY2d 111) by our court rather than an obligatory abandonment of the Seider doctrine upon constraint of Rush v Savchuk (444 US 320) (see concurring opn Donawitz v Danek, 42 NY2d 138, 143-151).

Order reversed, etc.


text:
    Albert B. Belton, Appellant, v Pilvax Printing Corporation et al., Respondents.
    Submitted February 19, 1980;
    decided March 18, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1). Motion for poor person relief dismissed as academic.


text:
    Chemical Bank, Appellant-Respondent, v William Malasko et al., Respondents-Appellants.
    Submitted February 19, 1980;
    decided March 18, 1980
   Motion and cross motion for leave to appeal dismissed, each 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, § 40, p 161).


text:
    In the Matter of Garden Towers Co., Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Submitted February 19, 1980;
    decided March 18, 1980
   Motion for leave to appeal and cross motion to dismiss appeal taken as of right denied, each upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [ii]; subd [d]).


text:
    In the Matter of Ethel McCabe, Also Known as, Ethel Troia, as Executrix of Lawrence E. McCabe, Deceased, Respondent. Bridal Art Studios, Inc., et al., Appellants.
    Decided March 18, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Yonkers Garden Company, Appellant, v State of New York Division of Housing and Community Renewal et al., Respondents.
    Submitted February 19, 1980;
    decided March 18, 1980
   Motion for leave to appeal and cross motion to dismiss appeal taken as of right denied, each upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [ii]; subd [d]).


text:
    The People of the State of New York, Respondent, v James Hall, Appellant.
    Submitted January 28, 1980;
    decided March 18, 1980
   Motion for reconsideration and amendment of this court’s memorandum denied. [See 48 NY2d 927.]


text:
    In the Matter of Joseph P. Livreri, Respondent, v Frank X. Gargiulo et al., Constituting the Board of Elections of the City of New York, Respondents, and Arlyne Siegel et al., Appellants. In the Matter of Arlyne Siegel, Appellant, v Joseph J. Previte et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued March 18, 1980;
    decided March 19, 1980

      APPEARANCES OF COUNSEL

      Joseph A. Cascione for appellants.

      Stuart Sloane for respondents.
   OPINION OF THE COURT

Memorandum.

The orders appealed from should be affirmed, without costs. Our examination of the record persuades us that the courts below did not err as a matter of law in concluding that there are a sufficient number of valid signatures on the petition. We note that in light of the fact that both judgments of Supreme Court were affirmed by the Appellate Division, we may not review any claimed factual errors (see CPLR 5501, subd [b]). While it would appear that the courts below erroneously deemed valid those pages of the petition upon which there existed an error, omission, or unexplained alteration in that part of the witness statement indicating the number of signatures on each page (see Matter of Klemann v Acito, 45 NY2d 796), there exist sufficient valid signatures even discounting those pages. Finally, we note that the courts below did not exceed their power in granting relief with respect to all candidates included in these petitions since their legal rights and interests are identical and the papers clearly disclosed that it was intended that they be parties to the proceeding. We have examined appellants’ other arguments, and find them to be without merit.

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

Orders affirmed.


text:
    Edward G. Rymanowski, Appellant, v Pan American World Airways, Inc., Respondent.
    Argued February 12, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Lawrence J. Abreu and John F. Kelly for appellant.

      H. Neal Conolly for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 738).

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


text:
    In the Matter of Eugene Donnelly, Appellant, v Incorporated Village of Garden City et al., Respondents.
    Argued February 13, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Allen M. Kranz for appellant.

      Gerard Fishberg and Thomas M. Lamberti for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs. We agree with the Appellate Division that the petitioner’s dismissal was not unwarranted (Matter of Pell v Board of Educ., 34 NY2d 222).

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


text:
    Anthony A. Castellano et al., Appellants, v State of New York, Respondent.
    (Claim No. 54477.)
    Argued February 11, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Morton N. Wekstein for appellant.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 1033).

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


text:
    In the Matter of Graham D. Mattison, Appellant, v New York State Tax Commission, Respondent.
    Argued February 12, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Richard H. Appert and Emanuel G. Demos for appellant.

      Robert Abrams, Attorney-General (Nigel G. Wright and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Judgment reversed, with costs, and the petition granted for reasons stated in the dissenting memorandum by Mr. Justice Ellis J. Staley, Jr., at the Appellate Division (68 AD2d 974, 975-977).

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


text:
    Hylan Flying Service, Inc., et al., Appellants, v State of New York, Respondent.
    (Claim No. 54734.)
    Argued February 13, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Robert P. Neilon and Robert F. Wood for appellants.

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

Memorandum.

The judgment appealed from should be affirmed, with costs. On this appeal taken pursuant to CPLR 5601 (subd [d]), we may review only the prior "non-final determination of the appellate division” upon which the appeal is predicated (CPLR 5501, subd [b]). Since the Appellate Division did not disturb the factual finding, made by the Court of Claims and based upon legally sufficient evidence, that the limited access to claimants’ property was not caused by the taking, that factual determination is not subject to review in this court (see CPLR 5501, subd [b]). Given this factual determination the courts below properly concluded that claimants are not entitled to consequential damages stemming from the claimed lack of access. Nor are claimants entitled to damages for "cost to cure”, since such damages are merely an alternative to consequential damages, available in certain limited cases, and may not be awarded where there is simply no basis for any consequential damages (see Mayes Co. v State of New York, 18 NY2d 549). Finally, we conclude that the Appellate Division did not abuse its discretion by ordering a new trial due to its dissatisfaction with the evidence presented by claimants concerning the proper valuation of the property taken by the State.

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

Judgment affirmed.


text:
    In the Matter of the Arbitration between Harvey S. Kornit, Appellant, and Plainview-Old Bethpage Central School District, Respondent.
    Argued February 8, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Harvey S. Kornit, appellant pro se.

      Gregory J. Guercio for respondent.
   OPINION OF THE COURT

Memorandum.

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

Even if there were no fatal procedural deficiencies in appellant’s application to vacate the award in arbitration, we agree with the Appellate Division that there is no evidentiary proof in this record of any "appearance of bias” on the part of the arbitrator, to say nothing of proof of actual bias which would be required to warrant a vacatur of the award.

The award was made on January 31, 1978. Appellant’s application for reconsideration was denied by the arbitrator on March 6, 1978. At a meeting held on March 20, 1978 the arbitrator was appointed hearing officer for the school district. There is no evidence to relate this appointment back to the arbitration proceedings or to the award in such a manner as to permit an inference of conflict of interest or bias in favor of the school district, and appellant makes no claim that the award itself was the result of actual bias.

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

Order affirmed.


text:
    In the Matter of Underhill Construction Corp., as Successor in Interest of Carver Concrete Corp., Appellant, v Tax Commission of the State of New York, Respondent.
    Argued February 12, 1980;

    decided March 20, 1980

      APPEARANCES OF COUNSEL

      John J. Connolly and Thomas F. De Soye for appellant.

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

Memorandum.

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

There is substantial evidence in the record to sustain the determination of the State Tax Commission, following an evidentiary hearing, that prior to April 1, 1969 the taxpayer had not "irrevocably entered into” a "pre-existing lump sum or unit price construction contract” within the contemplation of subdivision (a) of section 1119 of the Tax Law. Taxpayer’s predicament stems from the insufficiency of the proof submitted in support of his application for revision of the commissioner’s determination of his liability for sales and use taxes. The factual background is described in the majority opinion at the Appellate Division (66 AD2d 925).

At the hearing, in addition- to testimony as to previous transactions between the parties and as to material purchased for and work performed on the project prior to April 1, 1969, taxpayer introduced only two pages of the alleged contract, the first page setting forth the date June 21, 1968 and a payment obligation of $2,451,000, and the last page bearing the signatures of the parties and the date August 19, 1969. No proof was offered as to the number, form or content of the intervening pages. Nor was there any testimony as to the dates, places or circumstances of any communications between the parties. Although a performance bond might not necessarily have been required, no proof was tendered that any such bond (which would have provided objective, independent corroborative evidence of the existence of a binding agreement) had been executed or that such a bond had not been required. Although taxpayer stated that the agreement was entered into on June 28, 1968 he gave no reason for the delay until August, 1969 for affixing signatures. Without taking the position that the statute necessarily required the pre-April, 1969 execution of a written contract, the commissioner determined that the proof submitted was insufficient to establish that a construction contract of the substance required by the statute had been "irrevocably entered into” prior to the cutoff date. We cannot say that there is not substantial evidence in the record to support that conclusion.

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

Judgment affirmed.


text:
    In the Matter of Saul A. Babbin, Appellant v State Tax Commission, Respondent.
    Argued February 12, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Martin S. Handelman, Richard F. Irwin and Barbara E. Boettcher for appellant.

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

Memorandum.

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

Although the proof in the record would also have supported a contrary conclusion, we cannot say that there is not substantial evidence to sustain the determination made by the State Tax Commission.

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

Judgment affirmed.


text:
    American Banana Company, Inc., Respondent, v Venezolana Internacional De Aviacion, S. A. (VIASA), Appellant.
    Argued February 8, 1980;
    decided March 20, 1980
    APPEARANCES OF COUNSEL

      Francis A. Montbach and John L. Conners for appellant.

      Robert Dembia, John H. McConnell and Stephen A. Agus for respondent.
   OPINION OF THE COURT

Memorandum.

The plaintiff ordered a shipment of 1,500 crates of plantains from the consignor, Veneagro. The shipment was to go from Venezuela to New York on the defendant’s airline, Venezolana Internacional De Aviación, S. A. (VIASA). Due to mechanical difficulties the flight was delayed for several days, during which time the plantains were taken off the plane. The plaintiff notified Veneagro that it did not want the shipment because of the delay and advised by telex to ship the cargo to West Indies Food and Importing, Inc.

Although the shipper made a specific request that the consignee be changed to West Indies, VIASA never changed the consignee, never acknowledged a request to change the consignee, and did no more than instruct its people to notify West Indies rather than American Banana when the shipment arrived at Kennedy Airport. American Banana now sues for damages to the shipment. Special Term granted summary judgment in favor of the defendant VIASA and the Appellate Division reversed certifying a question to this court as to the correctness of its action.

This case concerns an international air shipment between two signatories to the Warsaw Convention, and is governed by its provisions.

Article 14 of the Convention which is set out at section 1502 of title 49 of the United States Code provides that: "The consignor and the consignee can respectively enforce all the rights given them by articles 12 and 13, each in his own name, whether he is acting in his own interest or the interest of another, provided that he carries out the obligations im- . posed by the contract.”

"Consignee” is not further defined by the Convention. The only question on this appeal is whether the plaintiff is a "consignee” entitled to sue.

The earlier New York cases raising this question, all by courts of first instance, dealt with circumstances in which the would-be plaintiff was not named in the air waybill and where the consignee named in the waybill was the party who actually received the goods. That is not the situation in the instant case, and we do not find those cases dispositive.

The defendant urges that because the consignor availed itself of the right afforded by the Convention to direct delivery of a shipment to one "other than the consignee named in the air waybill” (art 12, § [1]) and because the plaintiff had canceled its contract, it had ceased to be the "consignee”. In effect, the defendant argues that the "consignee” entitled to sue, is whoever actually received the goods.

Although section (1) of article 12 empowers the consignor, with limitations not pertinent here, to redirect a shipment in transit to a party "other than the consignee named in the air waybill”, it does not empower the consignor to change the consignee named in the waybill as such. This limitation, supports an inference that the drafters of the Convention did not intend that the person authorized to exercise the rights of the "consignee” should change simply because the cargo is redirected. Article 14 is not to the contrary.

In this case, where the plaintiff was named in the air waybill and that waybill was never changed, the plaintiff must be considered a "consignee” entitled to maintain the suit under the terms of the Convention, even though it does so in the interest of West Indies.

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

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

Order affirmed, etc.


text:
    In the Matter of Konski Engineers, P. C., et al., Appellants, v Arthur Levitt, as Comptroller of the State of New York, et al., Respondents.
    Argued February 11, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Andrew Schwartz and John F. Lawton for appellants.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (69 AD2d 940).

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


text:
    American Bank Note Company, Respondent, v State Division of Human Rights, Appellant, et al., Respondents.
    Argued February 13, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Martin N. Silverman and Ann Thacher Anderson for appellant.

      William A. Ziegler for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 583).

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


text:
    Joseph F. Rohan, Appellant, v Richard J. Bartlett, as New York State Administrative Judge, et al., Respondents.
    Submitted February 13, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Francis J. Donovan and Joseph D. Donovan for appellant.

      Stephen G. Crane, Michael Colodner and John Poklemba for respondent.
   OPINION OF THE COURT

Memorandum.

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

On February 18, 1977, the Administrative Board approved a resolution (22 NYCRR 20.3 [a]) declaring that, effective April 1, 1977, no personal assistant could be appointed by an incoming Supreme Court Justice without the prior approval of the Administrative Board. This resolution effectively abolished the position of confidential attendant to any incoming Justice unless that permission was granted by the board. The minutes of the February meeting also show that, effective April 1, 1977, the Administrative Board did approve the continuation in employment of "all existing personal assistants to judges” as of that date. Because the appellant did not hold his position within the meaning of the Administrative Board’s resolution, he had no right to continued employment.

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

Order affirmed.


text:
    Herbert F. Darling, Inc., Appellant, v City of Niagara Falls, Appellant, and International Fidelity Insurance Company, Respondent, et al., Defendants.
    Argued February 13, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Angelo Massaro for plaintiff-appellant.

      Carl E. Mooradian, Corporation Counsel (Bernard Sax of counsel), for defendant-appellant.

      Howard L. Meyer and Ralph Cessario for respondent.
   OPINION OF THE COURT

Memorandum.

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

International Fidelity Insurance Company was surety for Payload Construction on its contract with the City of Niagara, but its obligation on the bond terminated by agreement with the city on July 10, 1974. It was not until August 27, 1974 that plaintiff contracted with Payload’s successor, C.I.C. Enterprises, the surety for which was Summit Insurance. International’s general denial was sufficient as a matter of pleading to raise the issue that it had never become obligated to plaintiff because its bond had terminated before plaintiff became a subcontractor on the project. Therefore, there was no reason for it to plead the city’s release of it from its contract as an affirmative defense. Since plaintiff presented no evidentiary facts to show that International’s bond had not been terminated before plaintiff became C.I.C.’s subcontractor, the complaint was properly dismissed.

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

Order affirmed.


text:
    In the Matter of Mary New et al., Appellants, v New York State Board of Social Welfare et al., Respondents.
    Argued February 14, 1980;
    decided March 20, 1980
    APPEARANCES OF COUNSEL

      Gerald E. Paley for appellants.

      Robert Abrams, Attorney-General (Eugene E. Zegarowicz,

      Shirley Adelson Siegel and Maryellen Weinberg of counsel), for Commissioner of State Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

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

Some of the money deposited in the accounts was Mary New’s. Some of the accounts were in Mrs. New’s name in trust for her son, Gunther, and some were in their joint names. Gunther’s claim is that all of the money was his, that he controlled the bank books, and that the reason his mother’s name was on the accounts was to protect her in case he died or became incapacitated. On that evidence the commissioner could have found that the money, or most of it, was in fact Gunther’s and that it was not transferred for the purpose of qualifying for assistance.

The evidence also showed, however, that transfer of all of the accounts to Gunther’s name alone was made within two months of the application for assistance, thus bringing into play the statutory presumption that transfer was for that purpose. Moreover, the form of the accounts, the admitted facts that reparations and Social Security payments were received by Mrs. New in her own right over the years and that her funds and those of her son were commingled, and the absence of any proof concerning what her living expenses were over the years makes it impossible to say that the commissioner’s determination was not supported by substantial evidence. The commissioner was not required to accept petitioners’ account nor have they been denied any procedural right to which they were entitled. It was not error, therefore, for the Appellate Division to confirm the commissioner’s determination.

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

Judgment affirmed.


text:
    Waterfront Commission of New York Harbor, Appellant, v Commissioner of the Division of Criminal Justice Services, Respondent.
    Argued February 12, 1980;
    decided March 20, 1980

      APPEARANCES OF COUNSEL

      Susan Lushing and Gerald P. Lally for appellant.

      Robert Abrams, Attorney-General (Lillian Z. Cohen and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 915).

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


text:
    Natalie D’Amico, as Administrator of the Estate of Stephen D’Amico, Deceased, Appellant, v General Accident Fire & Life Assurance Corp., Ltd., Appellant, and Pennsylvania Millers Mutual Insurance Company, Respondent.
    Submitted February 25, 1980;
    decided March 20, 1980
   Motion to dismiss the appeals herein denied.


text:
    Friends of the Pine Bush et al., Respondents, v Planning Board of the City of Albany et al., Appellants.
    Submitted February 19, 1980;
    decided March 20, 1980
   Motions for leave to appeal by (A) planning board and chairman and by (B) G. M. R. Properties, Inc., each dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198). On the court’s own motion, appeal taken as of right by G. M. R Properties, Inc., dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Glen Head Mills, Inc., et al., Respondents, v Leon-Ferenbach, Incorporated, Appellant.
    Submitted March 3, 1980;
    decided March 20, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 40, p 161).


text:
    Everett G. Haines et al., Respondents, v Antoni Olszewski et al., Appellants.
    Submitted February 25, 1980;
    decided March 20, 1980
   On the court’s own motion, appeal taken as of right from the August 10, 1979 order of the Appellate Division dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal from the August 10, 1979 order of the Appellate Division denied. Motion for leave to appeal from the January 14, 1980 order of the Appellate Division dismissed upon the ground that said order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Thomas Conyers, Respondent.
    Submitted February 19, 1980;
    decided March 20, 1980
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether cross-examination of a criminal defendant, for impeachment purposes, concerning his silence at the time of arrest, is violative of defendant’s Federal constitutional rights. The Court of Appeals considered this question and concluded that such questioning does violate defendant’s Federal constitutional rights. [See 49 NY2d 174.]


text:
    The People of the State of New York, Appellant, v William Rosario, Respondent.
    Submitted February 4, 1980;
    decided March 20, 1980
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v Steven Williams, Appellant.
    Submitted March 3, 1980;
    decided March 20, 1980
   Motion to dismiss the appeal herein denied (CPL 450.90, subd 1).


text:
    Duane Sales, Inc., Respondent, v Philip Carmel et al., Appellants.
    Argued February 14, 1980;
    decided March 25, 1980

      APPEARANCES OF COUNSEL

      Harry R. Hayes for appellants.

      Richard E. Rowlands for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the order and judgment of Supreme Court, Albany County, granting defendants’ cross motions to dismiss the complaint and supplemental summons and complaint reinstated.

The option provision in the lease between plaintiff and C. Louden Realty Co., landlord, gave plaintiff the right to "purchase the property at the same terms and conditions as offered by any bona fide purchaser”. Through a broker, landlord negotiated a contract for the sale of the property to defendants Hayes, Brickman and Wasserman. Plaintiff chose to exercise its option, but excluded the term of the proposed contract by which the parties agreed that the broker had negotiated the sale and the purchaser agreed to pay the brokerage commission and indemnify the seller against liability and expenses arising from a claim for a brokerage commission.

Contrary to plaintiffs contention, it simply did not accept "at the same terms and conditions as offered” as required in the lease. Nothing in the option provision permits the optionee to accept only those terms and conditions of an offer it deems material and beneficial to the landlord (cf. Camden Co. v Princess Props. Int., 38 NY2d 961). Nor can it be said that an agreement to pay a commission for negotiating the sale and to indemnify against a broker’s claim, as to liability and expenses, would be immaterial to the landlord upon the exercise of an option. The seller properly could treat plaintiff’s purported acceptance as a rejection of the proposed terms and conditions. In light of this disposition, it is unnecessary to pass upon the remaining issues raised by defendants.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.