text:
    In the Matter of Leslie Kaye et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued March 21, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Cornelius D. Murray and Lewis A. Aronowitz for appellants.

      Louis J. Lefkowitz, Attorney-General (Arthur Patane, Ruth Kessler Toch and Edward J. Kelly of counsel), for respondents.

      James W. Sanderson for New York Association of Homes for the Aging and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Retroactive application of the rates and regulations promulgated by the commissioner in October of 1976 was expressly authorized by statute (Public Health Law, § 2807, subd 2, par [e], L 1976, ch 76, § 11). We find no merit in the appellants’ argument that retroactive application of the rates impaired existing contract rights in view of the fact that the provider agreement does not establish rights to reimbursement under any specific rate or regulation. In addition, with the enactment of subdivision 1 of section 2808 of the Public Health Law, prior to 1976, the appellants were put on notice that the standard of reimbursement had been altered from "cost” factors (Public Health Law, § 2807, subd 3) to consideration of, inter alia, "the operation and program management of the facility, as well as to the quality of patient care provided by the facility.” They were also notified by letter that the amounts received for services provided in 1976 should be considered tentative and subject to adjustment upon adoption of new rates and regulations.

We reject petitioners’ contention that the rates set by the commissioner in October, 1976 were invalid for failure to have received HEW approval under the provisions of section 1396a (subd [a], par [13], Cl [E]) of title 42 of the U. S. Code. In the first instance it is noted that petitioners have not shown that the October rates violated the substantive standards established by the Federal statute which merely requires reimbursement rates to be set "on a reasonable cost related basis”. Furthermore it is made clear by the letter dated September 30, 1976 from the Associate Regional Commissioner of HEW to the State commissioner that HEW would not be able to implement this new requirement or to grant the contemplated approval except for rates effective after January 1, 1977.

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

Order affirmed, with costs in memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant-Respondent, v K. R. Shukla, William Flickinger and Julius Hauer, Respondents-Appellants.
    Argued March 23, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Michael Gore of counsel), for appellant-respondent.

      Leonard R. Rosenblatt, Jules Ritholz and John J. Tigue, Jr., respondents-appellants.
   OPINION OF THE COURT

Memorandum.

On the appeal by the People, the order should be affirmed on the memorandum of the majority at the Appellate Division. We would also note that this protracted litigation could easily have been avoided if the prosecutor had simply sought permission to resubmit in accordance with the procedure expressly provided by law (CPL 210.20, subd 4).

The defendants’ appeal should be dismissed. In view of the fact that they were the respondents in the Appellate Division and that court affirmed, the determination was not adverse to the defendants as is required by CPL 450.90 (subd 1).

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

On the People’s appeal: Order affirmed.

On defendants’ appeal: Appeal dismissed.


text:
    The People of the State of New York, Respondent, v James W. Sim, Jr., Appellant.
    Submitted March 20, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Paul T. Devane and Joseph M. Ingarra for appellant.

      Sol Greenberg, District Attorney (Robert E. Harris of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (53 AD2d 992).

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


text:
    The People of the State of New York, Respondent, v James Thomas, Appellant.
    Argued March 23, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL
    Arthur J. Giacalone and Pierce Gerety, Jr., for appellant.

      Curtis L. Lyman, District Attorney, for respondent.

      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Frederick R. Walsh of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Memorandum.

An appeal from an order of an intermediate appellate court granting or denying an application for an extension of time in which to take an appeal may be entertained by this court only if the "order states that the determination was made upon the law alone” (CPL 460.30, subd 6). The order here does not contain such a recital. Therefore, since the possibility that the Appellate Division’s decision was premised on an exercise of discretion cannot be excluded, the appeal must be dismissed (see People v Calabur, 178 NY 463, 464; People v O’Brien, 164 NY 57, 58).

We also note that, no leave having been sought to appeal from the earlier order which had vacated the appointment of counsel on the ground that no appeal had been taken to the Appellate Division, the defendant’s contentions relating to that order may not be considered by us (see CPL 470.60, subd 3).

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

Appeal dismissed in a memorandum.

       The statute also provides that only a Judge of the Court of Appeals may issue a certificate permitting such an appeal (CPL 460.30, subd 6).


text:
    The People of the State of New York, Respondent, v Jeffrey Reeves, Appellant.
    Argued March 20, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Donald E. Nawi and Gilbert S. Rosenthal for appellant.

      Francis J. Vogt, District Attorney (E. Michael Kavanagh and Edward M. P. Greene of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (57 AD2d 1015), noting, as did the Appellate Division, that the finding of a hashish pipe and some hashish on the table would not alone have justified the issuance of a warrant of such breadth.

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


text:
    In the Matter of Lawrence J. Severino et al., Doing Business as Kent Nursing Home, Respondents, v Hollis S. Ingraham, as Commissioner of the Department of Health of the State of New York, Appellant.
    Argued March 21, 1978;
    decided April 25, 1978
    APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and Ruth Kessler Toch of counsel), for appellant.

      David C. Gilberg for respondents.
   OPINION OF THE COURT

Memorandum.

At issue on this appeal is the rate of Medicaid reimbursement for care provided by the petitioners, operators of the Kent Nursing Home, for the fiscal year July 1, 1968 to June 30, 1969. Authority to establish reimbursement rates is conferred on the State Commissioner of Health and such rates must be "reasonably related to the costs of providing such service.” (Public Health Law, § 2807, subd 3; Matter of Sigety vIngraham, 29 NY2d 110.) Implementing this statute, the commissioner promulgated a regulation (10 NYCRR 770.2 [e]; repealed Jan., 1970) which provides: "The per patient day cost of care shall be determined by dividing the total allowance expense by the total patient days of care during the year for each nursing home.” At that time, the rate of reimbursement was prospectively fixed, based on the actual costs of the prior year, ending December 30,1967. The petitioners began this operation on July 1,1967; thus, their 1967 statistics only represented a six-month period. The data submitted by petitioners included certain nonrecurring costs and indicated that the nursing home was utilized only to 55% of capacity. This figure was somewhat misleading, however. As a natural consequence of the home’s continued operation, a sharp increase in the occupancy rate was to be expected during the coming year.

The commissioner, believing it inappropriate to base a future rate on data reflecting such low utilization since it did not accurately or reasonably represent past or future costs, estimated an occupancy rate of 80% in his computations, based on the utilization experience of other nursing homes in the same geographical area over a period of one year. The commissioner concluded that the only regulation which might arguably be relevant was restricted to nursing homes which had been in operation for the requisite period. Confronted then with the prescriptions of the statute, and no applicable implementary regulation, the commissioner, on an ad hoc basis and in no way relying on the authority of the inapplicable regulation, made a determination as to the reimbursement rate to which the nursing home would be entitled in accordance with the mandate of the statute. Since there has been no demonstration that this determination was arbitrary and capricious or in violation of the statute, we believe the determination of the commissioner should be sustained. For the same reasons, the commissioner’s use of a lower percentage factor for the current cost adjustment than that prescribed in the regulation was also proper. (10 NYCRR 770.2 [f].)

Accordingly, the order of the Appellate Division should be reversed, without costs, and the determination of the State Commissioner of Health reinstated.

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

Order reversed, etc.

       (L 1968, ch 862, as amd.)


text:
    In the Matter of Theodore J. Thompson, Appellant, v Motor Vehicle Accident Indemnification Corporation, Respondent.
    Argued March 23, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      James Malin and Sanford Kulick for appellant.

      Maynard C. Schaus for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 713).

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


text:
    In the Matter of Pasta Chef, Inc., Appellant, v State Liquor Authority, Respondent.
    Argued March 21, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Bernard S. Meyer for appellant.

      Thomas E. Butler and Warren B. Pesetsky for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 1112).

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


text:
    The People of the State of New York, Appellant, v William Graham, Respondent.
    Argued March 22, 1978;
    decided April 25, 1978

      APPEARANCES OF COUNSEL

      Edward C. Cosgrove, District Attorney (Judith Blake Manzella of counsel), for appellant.

      Joseph V. Sedita and Louis A. Haremski for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion of Mr. Justice G. Robert Wither at the Appellate Division (57 AD2d 478).

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


text:
    The People of the State of New York, Respondent, v Maurice Lockwood, Appellant.
    Argued March 27,1978;
    decided April 27,1978

      APPEARANCES OF COUNSEL

      Norman A. Olch for appellant.

      Mario Merola, District Attorney (Richard M. Joel and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, judgment of conviction vacated, and a new trial ordered on the dissenting opinion of Mr. Justice Louis J. Capozzoli at the Appellate Division (55 AD2d, at pp 20-25). See, also, People v Buxton (44 NY2d 33) involving a situation close to that in this case except that the circumstances here, as detailed in the dissenting opinion at the Appellate Division, are even stronger in dictating reversal.

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


text:
    In the Matter of Robert’s Running Creek Mobile Park, Inc., Appellant, v Joseph Landolfi et al., Constituting the Zoning Board of Appeals of the Town of Wappinger, Respondents.
    Argued March 28,1978;
    decided April 27,1978

      APPEARANCES OF COUNSEL

      Nathaniel Rubin for appellant.

      Jon Holden Adams for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 933).

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


text:
    Louis F. Quaglia et al., Respondents, v Incorporated Village of Munsey Park, Appellant.
    Argued March 30, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Fred A. Williams for appellant.

      Patrick J. Rohan and Michael P. Sanchirico for respondents.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, with costs in all courts. The village as a municipal body enacting laws or adopting ordinances or resolutions with respect to its public responsibilities may act only in furtherance of a public purpose. Despite a meticulous and byzantine delineation of resolutions, map changes, and transfers and retransfers of title over a 40-year period centered on a three-foot strip of land purportedly detached from a public street, no plausible public purpose is made apparent or even argued to be served. By the erection of a stone barrier in 1975 on this three-foot strip plaintiffs are purposelessly denied access from their residence to the abutting public street. Neither the law nor the courts may or should be used to serve such an act. When no public purpose is perceived to be served, an owner may not be denied access to a public street (see Regan v Lanze, 40 NY2d 475, 482-483; 10 McQuillin, Municipal Corporations [3d ed, 1966 rev vol], § 30.54; cf. Farrell v Rose, 253 NY 73, 76).

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

Order affirmed, etc.


text:
    Barbara C. McCormick et al., Appellants, v State of New York, Respondent.
    (Claim No. 58056-A.)
    Argued March 21, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Richard S. Scanlan for appellants.

      Louis J. Lefkowitz, Attorney-General (J. Lawson Brown and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on so much of the opinion of Mr. Justice Louis M. Greenblott at the Appellate Division (51 AD2d 28) relevant to the question certified by that court (see, also, Erca v State of New York, 42 NY2d 854, affg 51 AD2d 611). The question certified is answered in the negative.

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


text:
    Francis A. Dziurak, Appellant, v Chase Manhattan Bank, N. A., Respondent.
    Argued March 27, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Samuel W. Sherman and Irving A. Cook for appellant.

      Andrew J. Connick and Richard C. Tufaro for respondent.
   OPINION OF THE COURT

Memorandum.

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

A cashier’s check is the primary obligation of the issuing bank which, acting as both drawer and drawee, accepts the check upon its issuance. (Matter of Bank of United States, 243 App Div 287, 291; Moon Over the Mountain v Marine Midland Bank, 87 Misc 2d 918, 920.) As such, a cashier’s check does not constitute an item payable for a customer’s account within the meaning of subdivision 1 of section 4-403 of the Uniform Commercial Code. (White and Summers, Uniform Commercial Code, § 17-5, p 579, n 91.) Consequently, respondent was under no legal obligation to honor appellant’s order to stop payment. (Bobrick v Second Nat. Bank of Hoboken, 175 App Div 550, 553, affd 224 NY 637; Bunge Corp. v Manufacturers Hanover Trust Co., 31 NY2d 223, 234 [dissenting opn, Breitel, J.]; Kaufman v Chase Manhattan Bank Nat. Assoc., 370 F Supp 276, 278.)

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

Order affirmed.


text:
    In the Matter of Parkchester Management Corp., Respondent, v Rent Stabilization Association of New York, Inc., et al., Appellants, and Parkchester Tenants’ Association, Intervenor-Appellant.
    Argued March 28,1978;
    decided April 27,1978

      APPEARANCES OF COUNSEL

      Abraham M. Lindenbaum for Rent Stabilization Association of New York, Inc., appellant.

      Allen G. Schwartz, Corporation Counsel (Ronald E. Stern-berg and L. Kevin Sheridan of counsel), for Housing and Development Administration, appellant.

      William E. Rosen and Ellis S. Franke for New York City Conciliation and Appeals Board, appellant.

      Kent Karlsson for intervenor-appellant.

      Robert S. Fougner for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be reversed, with costs, and the judgment of Supreme Court, New York County reinstated, for the reasons stated in the dissenting opinion of Mr. Justice Samuel J. Silverman at the Appellate Division (56 AD2d, at pp 403-405). We would note, however, that this result is founded upon the quasi-voluntary nature of the Rent Stabilization Association, and we express no opinion as to whether the statute authorizes a public agency to impose the type of regulation here in issue.

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

Order reversed, with costs, and judgment of Supreme Court, New York County, reinstated in a memorandum.


text:
    Raymond O. Wagner et al., Respondents, v Anne B. Wagner, Appellant, and Herbert J. A. Runsdorf, as Executor of Raymond M. Wagner, Deceased, Respondent.
    Submitted March 28, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Herbert C. Silberman for appellant.

      Joseph Feinstein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harold Birns at the Appellate Division (58 AD2d 7) (Glass v Battista, 43 NY2d 620).

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


text:
    Margaret R. Lebron, Appellant, v New York City Transit Authority, Respondent.
    Argued March 30,1978;
    decided April 27,1978

      APPEARANCES OF COUNSEL

      Martin Schulman and W. Harvey Mayer for appellant.

      John A. Murray, Alphonse E. DAmbrose and Helen R. Cassidy for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to abide the event, and the case remitted to Supreme Court for a new trial.

The trial court charged the jury without exception that the provision in the free pass, on which plaintiff was riding at the time of the accident, exempting defendant from liability would be binding on plaintiff if she had received the pass as a gratuity, but not binding if it had been received by her as part of her compensation. The burden on this issue rested on defendant. We find no evidence in the record that the pass had been issued as a gratuity — indeed defendant’s counsel admitted as much on trial — and the documentary evidence considered by the Appellate Division dehors the record is inconclusive. Accordingly, the verdict for defendant is not supportable on the ground that the defense predicated on the pass had been established.

Inasmuch as it cannot be concluded, then, that the general verdict of the jury in favor of defendant was not based on this ground, the verdict must be vacated and a new trial ordered.

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

Order reversed, etc.


text:
    In the Matter of the City of Yonkers, Respondent, v Raymond Cassidy et al., Appellants.
    Argued March 28, 1978;
    decided April 27, 1978
    APPEARANCES OF COUNSEL

      James M. Rose for appellants.

      Eugene J. Fox, Corporation Counsel (Richard L. Steer of counsel), for respondent.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Shirley Adelson Siegel of counsel), for New York State Emergency Financial Control Board for the City of Yonkers, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Appellants chose to litigate this dispute in a declaratory judgment action (39 NY2d 964). Having taken that course they waived the right to submit the question to arbitration (Matter of Zimmerman v Cohen, 236 NY 15; cf. Denihan v Denihan, 34 NY2d 307, 310; Hadjioannou v Avramides, 40 NY2d 929, 931; Validity & Enforceability of Provision for Binding Arbitration and Waiver Thereof, Ann., 24 ALR3d 1325).

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

Order affirmed.


text:
    Isaac Morhaim, Appellant, v Sara Morhaim, Respondent.
    Argued March 27, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Joseph P. Callahan for appellant.

      Arnold Davis for respondent.
   OPINION OF THE COURT

Order, insofar as appealed from reversed, without costs, and defendant’s motion to dismiss plaintiffs first cause of action denied on the dissenting memorandum by Mr. Justice Samuel J. Silverman at the Appellate Division (56 AD2d, at pp 551-552).

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


text:
    In the Matter of L. Aldazabal et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Hugh Carey, as Governor of the State of New York, et al., Respondents.
    Argued March 28, 1978;
    decided April 27, 1978

      APPEARANCES OF COUNSEL

      Jeffrey Plant for appellants.

      Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed.

On the record here, we cannot say that the Parks and Recreation Commission acted arbitrarily or capriciously or otherwise contrary to law in deciding that the problems it faced as a consequence of budgetary constraints and the statutory imposition of newly mandated training requirements for its police force (Executive Law, art 35) could best be met by limiting its park policemen to those engaged on a permanent basis, by abolishing the position of seasonal park policeman and by creating a new lower grade position of parks and recreation assistant with differing duties. Specifically, petitioners did not carry their burden of proving their assertion that, in doing so, the respondents were engaged in a bad faith effort to circumvent the Civil Service Law (cf. Matter of Wipfler v Klebes, 284 NY 248, 255).

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

Order affirmed, with costs, in a memorandum.


text:
    American Airlines, Inc., Respondent, v State Human Rights Appeal Board et al., Appellants.
    Submitted April 3, 1978;
    decided April 27, 1978
   Motion to amend remittur granted. Return of remittitur requested and, when returned, it will be amended to read as follows: "Order, insofar as appealed from, reversed, with costs, and the Appellate Division directed to confirm the order of the Commissioner of the State Division of Human Rights dated April 22, 1974 in full.” [See 41 NY2d 84.]


text:
    In the Matter of Esopus Property Holders Residing Within the New Paltz Central School District, Appellant, v Stirling Potter, as Sole Assessor of the Town of Esopus, Respondent.
    Submitted April 3, 1978;
    decided April 27, 1978
   Motion to dismiss appeal as untimely denied (CPLR 5513, subd [a]; 2103, subd [b], par 2; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5513.02; Messner v Messner, 42 AD2d 889).

Motion to compel filing of an undertaking to secure costs denied (CPLR 8501; 8 Weinstein-Korn-Miller, NY Civ Prac, pars 8501.08, 8501.09).


text:
    In the Matter of Ellis Miles, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted March 27, 1978;
    decided April 27, 1978
   Motion for leave to appeal dismissed as untimely (CPLR 2103, subd [b], par 2; 5513, subd [b]).


text:
    Archie Peltzman, Appellant, v American Radio Association, Respondent.
    Submitted April 17, 1978;
    decided April 27, 1978
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (CPLR 5602, subd [a], par 1; NY Const, art VI, § 3, subd b, par [7]).


text:
    The People of the State of New York, Respondent-Appellant, v Paul Bryant, Appellant-Respondent.
    Submitted April 17, 1978;
    decided April 27, 1978
   Motion to dismiss appeal taken by defendant granted and his appeal dismissed upon the ground that the order appealed from is not adverse to defendant, as required by CPL 450.90 (subd 1).


text:
    The People of the State of New York ex rel. Jose De Jesus, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted April 24, 1978;
    decided April 27, 1978
   On the court’s own motion, appeal transferred to the Appellate Division, First Department, without costs (NY Const, art VI, § 5, subd b). The direct appeal to this court does not lie since there is no substantial question involved as to the constitutional validity of a statutory provision.

Motion to prosecute appeal as a poor person and for assignment of counsel and for a preference dismissed as academic.


text:
    The People of the State of New York ex rel. Joan Little, Appellant, v William Ciuros, Jr., as Commissioner of Correction of the City of New York, et al., Respondents.
    Submitted April 24, 1978;
    decided April 27,1978
   Motion for stay of extradition granted.


text:
    Reporter Company, Inc., Respondent, v John J. Tomicki, Jr., et al., Defendants, and Edwin C. Stokes, Appellant.
    Submitted April 17, 1978;
    decided April 27, 1978
   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 (Binzen v Healey, 285 NY 615; Cohen and Karger, Powers of the New York Court of Appeals, § 39, p 159, n 10).


author: Gabrielli, J.

text:
    Bensons Plaza, Respondent, v Great Atlantic & Pacific Tea Company, Inc., Appellant, et al., Defendant.
    Argued February 17,1978;
    decided May 2, 1978

      APPEARANCES OF COUNSEL

      Michael Beilewech, Jr., for appellant.

      Harold M. Halpern for respondent.
   OPINION OF THE COURT

Memorandum.

Order reversed and summary judgment granted to defendant tenant. The disputed lease term may, of course, be viewed in the context of surrounding circumstances. It is the rare writing that requires no interpretation. (3 Corbin, Contracts, § 535; Restatement, Contracts 2d, § 228, Comment b; § 238, Comment b [Tent Draft No. 5]; cf. Hotel Credit Card Corp. v American Express Co., 13 AD2d 189, 193.) The point is, however, that even in light of all the surrounding circumstances, the highly probable inference is that "the rental under this lease” was intended to mean the rent stipulated for the first year. If the landlord intended otherwise, it should have been made explicit. In the absence of the tender of extrinsic evidence to establish otherwise, the court establishes the meaning of the provision in question from within the four corners of the agreement and the general circumstances of the relation between the parties, including the subject matter of the agreement (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290-291; Cushman & Wakefield v Dollar Land Corp., 36 NY2d 490, 494-495; Matter of Surrey Strathmore Corp. v Dollar Sav. Bank, 36 NY2d 173, 176-177).

Gabrielli, J.

(dissenting). I dissent and vote to affirm on the well-reasoned opinion of Mr. Justice Richard J. Cardamone writing for a majority at the Appellate Division. Quite apart from the rationale employed by him, it is the unusual case where an annual tax escalation clause, such as in this very case, is made applicable to but one year, which has no basis in logic and makes no commercial sense, rather than for the entire term of the lease.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur; Judge Gabrielli dissents and votes to affirm in a separate memorandum.

Order reversed, with costs, and summary judgment granted to defendant tenant dismissing the first cause of action in a memorandum.


text:
    Char-Mo Investors, Inc., Appellant, v Market Insurance Company, Respondent.
    Argued March 22, 1978;
    decided May 2, 1978

      APPEARANCES OF COUNSEL

      Jack M. Weinstein for appellant.

      Thomas Newman, Benjamin Vinar and Paul B. Marrow for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs. It is true that the standard fire insurance policy is mandated by statute, not subject to negotiation by the parties. Nevertheless, it has been held that statutory modifications of a standard insurance policy are, generally, not to be applied retroactively to policies already in force on the effective date of the statutory amendments (Mulligan v Travelers Ins. Co., 306 NY 805, affg 280 App Div 764). The liberalized policy provisions may not be imposed on the insurer until there is an opportunity to discontinue coverage (see Health Ins. Assn. v Harnett, 44 NY2d 302; Moore v Metropolitan Life Ins. Co., 33 NY2d 304, 312). Since the three-year policy in this case was in force for more than a year before the amendment took effect, the one-year limitation period provided in the policy governs.

The policy’s "Liberalization Clause” does not aid plaintiff. That clause deals with extensions of coverage initiated by the insurer, not with statutory modifications of the insurance agreement.

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

Order affirmed.


text:
    In the Matter of Thomas Lynch et al., Appellants, v New York City Conciliation and Appeals Board et al., Respondents.
    Argued March 28,1978;
    decided May 2, 1978

      APPEARANCES OF COUNSEL

      Kent Karlsson for appellants.

      William E. Rosen and Ellis S. Franke for New York City Conciliation and Appeals Board, respondent.

      Robert S. Fougner for Parkchester Management Corp., respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (56 AD2d 816).

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

Gabrielli, J.

(dissenting). I respectfully dissent, and would hold that the distinction drawn by respondent New York City Conciliation and Appeals Board (CAB) between a renewal lease, which is subject to rent increase guidelines, and a lease "modification” which serves solely to renew the lease and yet is not subject to the guidelines, is indeed irrational, arbitrary, and capricious.

Petitioners are the tenants of an apartment in a building owned by respondent Parkchester Management Corp. (Parkchester), and a tenants’ association. The named tenants originally entered into a one-year lease agreement with Parkchester in October, 1972 for an apartment which was at that time vacancy decontrolled. The landlord did not offer another lease in October, 1973, because it was considering a plan to convert the building into a condominium. The tenants thus remained as month-to-month tenants for several months following expiration of the original lease. In January, 1974, apparently because its conversion plan was not faring well, Parkchester offered the tenants a 10-month lease, to commence on March 1, 1974 and to terminate on December 31, 1974. Since the probable alternative was termination of the tenancy, the tenants signed the 10-month lease agreement. In late March, 1974, the landlord, motivated either by the singular lack of success of its conversion plan, or by the anticipated imposition of rent stabilization in the near future, offered to extend the lease for an additional two years, commencing in January, 1975, with graduated rental increases over the additional two-year period. This extension agreement was entered into in April, 1974.

On July 1, 1974, the apartment building became subject to rent stabilization. The landlord originally informed the tenant that although the 10-month lease agreement was not subject to the rent increase guidelines promulgated under the rent stabilization laws, the extension agreement was. The effect of this would be a decrease in rentals for that additional two-year period. Subsequently, however, the landlord changed its position, and informed the tenants that neither agreement was subject to the guidelines. The tenants disagreed, with respect to the two-year extension agreement only, and the dispute was submitted to respondent CAB. The CAB originally ruled in the tenants’ favor, finding that the extension agreement was a renewal lease with an effective date of January 1, 1975, which was thus subject to the guidelines. Upon Parkchester’s request for reconsideration, however, the CAB changed its decision, and declared that the extension agreement was merely a "modification” of the existing March 1, 1974 lease, and that as such it was not subject to the guidelines. The tenants then commenced this article 78 proceeding seeking to annul the decision of the CAB. They prevailed in Supreme Court, but that decision was reversed on appeal, the Appellate Division holding that the determination was within the CAB’s field of expertise and was neither irrational, arbitrary, nor capricious. Unlike the majority of this court, I cannot agree with the decision of the Appellate Division.

The issue before us is a simple one: is the extension agreement a renewal lease, or is it a mere modification of an existing lease which does not constitute a renewal? If it is a renewal lease, it is subject to the guidelines, as all parties agree, since it did not take effect as a renewal lease until January 1, 1975. If, on the other hand, it is a mere modification of the lease which had become effective on March 1, 1974, and not a renewal lease, it is not subject to the guidelines. A few basic examples of the effect of the rent stabilization provisions may serve to clarify the situation. As noted above, July 1, 1974 is the date upon which the present rent stabilization provisions became effective in New York City. A lease, or a renewal lease, which was entered into on June 30, 1974, and which became effective on that same day, would not be within the guidelines. In contrast, a lease, or a renewal lease, which was entered into on or before June 30, 1974, but which did not go into effect until July 2, 1974, would be subject to the guidelines. A mere modification of a lease which had itself become effective prior to July 1, 1974, would not subject that lease to the guidelines. A renewal lease, however, even if entered into prior to July 1, 1974, but which did not take effect until after July 1, 1974, would be subject to the guidelines.

The tenants contend that this case falls within the latter category. The landlord and the CAB, however, have characterized the extension agreement as a mere modification of the March 1, 1974 lease, which is thus not subject to the guidelines. Of considerable importance in resolving this dispute is the definition of a renewal lease which is applicable to this controversy, and that definition is contained in section 2(s) of the Code of the Rent Stabilization Association of New York City, Inc., which states that a renewal lease is "Any extension * * * of a tenant’s lawful occupancy of a dwelling unit after the completion of his lease term, including but not limited to a written extension of an existing lease or the execution of a new lease for the same space.” It must be emphasized that the extension agreement involved in this case makes no changes in the terms or conditions of tenancy under the March 1, 1974 lease. Rather, its sole effect was to extend that lease for another two years with graduated increases in both security and rental over the term of that additional two-year period. If this is not a renewal lease, especially under the broad definition quoted above, it defies logic to determine what would be a renewal lease short of using the term "renewal” therein, which is not required because of the plain, broad and specific language in the code.

Respondents would avoid this conclusion by characterizing the extension agreement as a mere modification of the existing lease, and thus not a renewal lease. This reasoning is specious. While any renewal of an existing lease could also be called a "modification”, this does not serve to transform it by some metaphysical leap into something other than a renewal lease. To so reason is to exalt semantics over reality and to reach a desired result by a method of analysis analogous to calling a horse an animal and thus concluding that someone who steals it is not a horse thief. I cannot concur in such an absurdity.

Accordingly, I vote to reverse the order appealed from and reinstate the judgment of Supreme Court, New York County.

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Kenneth Joseph Reed, Appellant.
    Submitted February 17, 1978;
    decided May 2,1978

      APPEARANCES OF COUNSEL

      Leslie R. Lewis for appellant.

      Sol Greenberg, District Attorney (Melissa L. Campbell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. Defendant contends that due to the prior inadvertent destruction by the police of the substance which formed the basis of his conviction for criminal possession of a dangerous drug in the fourth degree, the prosecution should have been precluded from proffering testimony as to the nature and amount of that substance. We disagree.

Defendant’s argument is based solely on the fact that the procedures provided by CPL article 715 for destruction of large amounts of dangerous drugs prior to trial were not followed. While we would note that these statutes must be complied with whenever applicable, the failure to utilize these procedures under the facts of this case does not warrant the drastic remedy sought by defendant.

In reaching this conclusion, we point out that the destruction of the contraband by the police custodian was due to a clerical error which led him to reasonably believe that the case had been dismissed. The prosecution has thus sufficiently explained the destruction, and there is no indication and, indeed, no claim of bad faith. Additionally significant is the absence of any prejudice to the defendant as a result of the destruction of the substance prior to trial. The drugs were seized in May, 1973; and, on illegal search and seizure grounds, defendant moved to suppress the seized material in November, 1973. The substance was destroyed on February 19, 1975, while the suppression motion was sub judice. Thus, the drugs were available to defendant for independent analysis or measurement for nearly two years, and were not destroyed until just prior to trial. At no time during this long period that the police had the substance did defendant seek to have the drugs examined; instead, he simply requested a copy of the police laboratory report. In light of these facts, the decision to allow testimony as to the nature and amount of the material seized did not constitute error.

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

Order affirmed.


text:
    Florence Mazzarelli, Appellant, v Nicholas Mazzarelli, Respondent.
    Submitted March 20, 1978;
    decided May 2, 1978

      APPEARANCES OF COUNSEL

      Barry M. Fallick and David A. Goldstein for appellant.

      Bernard Dworkin for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. The Appellate Division has found, with regard to the property and assets held jointly, that respondent husband successfully rebutted the presumption of a gift which arises from the act of taking title jointly in the name of both spouses (see Kover v Kover, 29 NY2d 408, 419). Reviewing this determination, as we must, in light of the realities of the situation as expressed by the record viewed as a whole, we find that the conclusion of the Appellate Division is indeed supported by the weight of the evidence, and should be sustained.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Thomas Cicchetti, Appellant.
    Argued March 20, 1978;
    decided May 2, 1978
    APPEARANCES OF COUNSEL

      Stephen Gillers for appellant.

      Eugene Gold, District Attorney (Joel M. Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Late in the evening of October 3, 1974, a brawl erupted into a bloodbath in the Casa Blanca Bar on Bay Ridge Avenue in Brooklyn. During the melee, four persons were either stabbed or shot. In addition, a fifth individual, Frank Nocera, died, having been shot once in the head, once in the chest, and having suffered six stab wounds.

Defendant was charged with causing the fatality by means of a firearm. At his trial, two witnesses testified that during the affray they saw defendant stand over the fallen Nocera and shoot him in the head. One of these witnesses also related that defendant had fired the earlier shot at decedent, thereby attributing both of the victim’s gunshot wounds to defendant, who denied having shot or stabbed anyone. The jury returned a verdict of guilty and the Appellate Division, with one dissent, affirmed defendant’s conviction of second degree murder and criminal possession of a weapon.

Initially, defendant asserts that the prosecutor’s misconduct denied him a fair trial, it being maintained that the trial was marred by prejudicial remarks. Significantly, however, save for a few instances, defense counsel did not object to the complained of comments. Moreover, despite the Appellate Division’s power to order a new trial, in the interests of justice, even though the errors were not duly protested (CPL 470.15, subd 6, par [a]; see, e.g., People v Chestnut, 42 AD2d 594; see, also, People v Cipolla, 6 NY2d 922), the majority of that court decided not to invoke that authority. Therefore, while not countenancing the conduct of the prosecutor, those few remarks to which defense counsel registered objection would not warrant reversal and those where no protest was lodged were not preserved for review by this court (see People v Gurley, 42 NY2d 1086).

It is also urged that the People failed to prove beyond a reasonable doubt that defendant caused or contributed to decedent’s death. In essence, it is argued that, even if it was established that defendant discharged a bullet into decedent’s head, the People failed to prove that decedent was alive at that time. In other words, the supposition is that Nocera may have been dead from his other injuries when the second bullet wound was inflicted. This argument should be rejected.

The medical testimony was that the causes of death were the gunshot wound of the head and brain, stab wounds of the head and brain, gunshot wounds of the chest and lungs, and multiple stab wounds. Unlike People v Stewart (40 NY2d 692), there is no evidence of an intervening cause of death. To the contrary, the proof was that all of the wounds caused death, and defendant may not avoid responsibility by arguing that other causes contributed since his acts were also factors in the victim’s demise (see People v Kane, 213 NY 260, 273). Moreover, rather than failing to state with any degree of medical certainty whether the victim was alive when the head wound was inflicted by defendant (compare People v Dlugash, 41 NY2d 725, 731), here the medical testimony was that the stab wounds would not cause "immediate or rapid death” and that: "In this case there was not instantaneous death or death within moments.” That decedent was alive at the time in question was also confirmed by one of the eyewitnesses who testified that she checked and found his pulse just prior to defendant having shot him while prostrate on the floor. Hence, on this record, there was proof to support a jury determination beyond a reasonable doubt that defendant’s actions caused or were at least a contributing cause of the fatality.

Defendant’s final argument is that the trial court’s failure to instruct the jury on causation denied him a fair trial. In this regard, despite defendant’s assertions to the contrary, an alleged error of this sort in the charge, to which no exception is taken is not reviewable in this court on the theory that defendant was deprived of a fair trial (People v Robinson, 36 NY2d 224; see, also, People v Kibbe, 35 NY2d 407, 413-414; Henderson v Kibbe, 431 US 145). As noted, the evidence was plainly sufficient for the jury to find beyond a reasonable doubt that defendant’s conduct caused or was at least a contributing cause of the victim’s death. At trial, defendant simply denied shooting the decedent and presented a different version of the events, but the jury chose to believe the People’s witnesses.

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

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

Order affirmed.


text:
    Town of Pompey, Respondent, v Leon Parker, Appellant. Leon Parker, Appellant, v Lawrence Cook et al., Constituting the Zoning Board of Appeals of the Town of Pompey, Respondents.
    Argued March 28, 1978;
    decided May 2, 1978

      APPEARANCES OF COUNSEL

      Bernard Samuels and Eric M. Alderman for appellant.

      Thomas W. Higgins, Jr., and Edward W. Dietrich for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. While increasing use of mobile homes raises various issues concerning the nature and scope of limitations a municipality may permissibly impose, under the circumstances of this case it is unnecessary to reach these broader questions. Significantly, the town has not excluded all mobile homes as permanent residences, but has merely limited them (see Matter of Bogart v Woodburn, 40 AD2d 888; Matter of Stevens v Smolka, 11 AD2d 896). Moreover, petitioner has neither applied for the temporary permit authorized under the ordinance, nor looked into the possibility of locating permanently in the trailer park. Finally, although in a future , case it may be necessary to consider town or even regional needs, there has been no showing that this is the type of community such as would warrant the application of the principles expressed in Berenson v Town of New Castle (38 NY2d 102). In short, on these facts, the constitutional challenge to the ordinance must be rejected.

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

Order affirmed.


text:
    The People of the State of New York ex rel. Buddy Holmes, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted April 10, 1978;
    decided May 2, 1978
   Motion for leave to appeal dismissed upon the ground that the relator has been released from imprisonment on a conditional release and therefore his liberty is no longer restrained to such a degree as to entitle him to the extraordinary relief of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Eddie Phillips et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v New York City Health and Hospitals Corporation et al., Respondents.
    Argued March 30, 1978;
    decided May 4, 1978

      APPEARANCES OF COUNSEL

      Karen Smith, Beverly Gross and Joan Stern Kiok for appellants.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Section 210 (subd 2, par [g]) of the Taylor Law (Civil Service Law, § 200 et seq.) penalizes a public employee who engages in an illegal strike by providing for the deduction from the employee’s compensation of "an amount equal to twice his daily rate of pay” for each day the employee remains on strike. Effectuation of this statutory policy requires that the term "daily rate of pay” be construed to encompass gross pay, rather than net pay. (See Matter of McGinn v Board of Educ., NYLJ, Dec. 16, 1976, p 13, col 3, affd 57 AD2d 868.) Deduction of the additional day’s pay penalty from an employee’s compensation should be made after taxes have been withheld by the employer upon the full amount of the employee’s compensation. To do otherwise would not penalize an illegally striking employee in an amount equal to his "daily rate of pay”. An employer who deducts the additional day’s pay penalty from the employee’s compensation after first withholding taxes on the total amount of compensation is, in effect, canceling an indebtedness of the employee, income in itself, just as if the employee had been paid for the additional day, had been taxed on that income, and then had repaid the employer a penalty in amount equal to his "daily rate of pay”. (Tucker v Commissioner of Internal Revenue, 69 TC — [No. 54, Feb. 8, 1978]; see, generally, 2 Mertens, Federal Income Taxation, § 11.19.)

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

Order affirmed.


text:
    Charmaine Norr, Plaintiff, v Enrique Spiegler, Defendant and Third-Party Plaintiff-Respondent. City of New York, Third-Party Defendant-Appellant, et al., Third-Party Defendant. (And a Fourth-Party Action.)
    Argued February 14, 1978;
    decided May 4, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant.

      Norman Bard and Steven C. Mandell for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is true, as the dissenters at the Appellate Division noted, that Beth Israel undertook to indemnify the city for malpractice claims against hospital employees. However, that agreement could not undercut the primary obligation created between the city and the defendant employee by section 50-d of the General Municipal Law.

As was noted by Mr. Justice Silverman writing for the majority below, we are dealing here with "an institution whose deficits are to be met by the city, on physical premises that were formerly a city hospital and that are identified in the public mind as a city institution, still furnished and physically maintained by the city, under contracts in which in one version 'the City * * * retains’ Beth Israel to render services and in the later version recognizes the duty of 'the City to provide health and medical care services for its citizens’ all 'under the general supervision and control of the Commissioner,’ a city official” (56 AD2d 389, 392).

Having gained the benefits of the defendant’s services and retained sufficient control to make the clinic in appearance and in fact a "public institution maintained in whole or in part by the municipal corporation” (General Municipal Law, § 50-d subd 1), the city could not properly avoid by contract a responsibility established in the first instance by statute (cf. Rogers v Dorchester Assoc., 32 NY2d 553).

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

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of Burton Jeffrey, Respondent-Appellant, v Benjamin Ward, as Commissioner of the New York State Department of Correctional Services, et al., Appellants-Respondents.
    Argued March 23, 1978;
    decided May 4, 1978

      APPEARANCES OF COUNSEL

      Andrew H. Eibel, William E. Hellerstein, Donald H. Zuckerman and Sally Mendola for respondent-appellant.

      Louis J. Lefkowitz, Attorney-General (Burton Herman, Samuel A. Hirshowitz and Nicholas G. Garauñs of counsel), for appellants-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Dutchess County, dismissing the petition, reinstated. The cross appeal of petitioner is dismissed, without costs, upon the ground that petitioner is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).

On July 20, 1970, petitioner was sentenced, on charges unrelated to his present incarceration, to a term of imprisonment of five years, which sentence was to expire on January 4, 1975. On September 26, 1973, while on parole, he was arrested and charged in the Criminal Court, Kings County, with offenses allegedly committed that day and was then released on bail on October 1, 1973. Thereafter, petitioner was rearrested on October 3, 1973 and held pursuant to a parole violation warrant in connection with the 1970 conviction. His bail was exonerated on November 30, 1973. Following a parole revocation hearing at which his delinquency was canceled pending disposition of the outstanding charges (see 7 NYCRR 1920.10 [a]), the parole violation warrant was withdrawn, petitioner again posted bail and was restored to parole on June 27, 1974. Petitioner entered a plea of guilty to one count of robbery in the second degree on December 1, 1975 in satisfaction of the charges which culminated in his September 26, 1973 arrest, and was sentenced to a term of imprisonment of three to six years.

Petitioner is not entitled to jail time credit for that period during which he was in custody pursuant to the parole violation warrant. Since that period was then being credited against the previous 1970 sentence (Correction Law, § 212, subd 7; Penal Law, § 70.40, subd 3, par [c]), it could not be also credited as jail time against the subsequent 1975 sentence (Matter of Canada v McGinnis, 36 AD2d 830, affd 29 NY2d 853; see, also, Matter of Kalamis v Smith, 42 NY2d 191, 200). Subdivision 3 of section 70.30 of the Penal Law specifies that jail time credit "shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject.” Moreover, the withdrawal of the parole violation warrant cannot be said to have been "a dismissal or an acquittal” within the meaning of the statute (Penal Law, § 70.30, subd 3).

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

On respondents’ appeal: Order reversed, without costs, and judgment of Supreme Court, Dutchess County, dismissing the petition reinstated.

On petitioner’s cross appeal: Cross appeal dismissed, without costs.


text:
    Angelo R. Carucci, Appellant, v City of Utica et al., Respondents.
    Submitted April 3, 1978;
    decided May 4, 1978
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]).

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


text:
    John B. Elliott, Appellant, v Erich Hirsch, Respondent, et al., Defendant.
    Submitted April 24,1978;
    decided May 4,1978
   Defendant’s motion to dismiss the plaintiffs "appeal” taken from the order of this court dated November 17, 1977 which dismissed an appeal on the ground of nonfinality, granted and the appeal dismissed, without costs. No appeal lies to this court from such order. [See 43 NY2d 746.]

Plaintiffs motion for leave to proceed as a poor person dismissed as moot.

Plaintiffs motion for leave to appeal from the order of the Appellate Division dated April 7, 1978, denying the motion to docket an appeal in that court, dismissed on the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Plaintiffs application "for writ of certiorari”, treated as a motion for leave to appeal, denied.


text:
    Shirley Frozzita, Respondent, v Incorporated Village of Freeport et al., Appellants.
    Submitted March 20, 1978;
    decided May 4,1978
   Motion for leave to appeal denied. Motion to dismiss the appeals taken as of right herein granted and the appeals dismissed, with costs and $20 costs of motion, upon the ground that the order sought to be reviewed involves a question of discretion of the type not reviewable by the Court of Appeals (CPLR 5601, subd [a], par [in]; subd [d]). [See 57 AD2d 827.]


text:
    William Gruman, Respondent v Norman A. Plotkin, Appellant.
    Decided May 4, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution, and upon the further ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Vyto J. Atkatsh, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Joseph B. Franchina, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of James J. McCabe, Respondent, v Michael J. Codd, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Leon Moore, Respondent, v Alphonse D’Ambrose, as City Personnel Director and as Chairman of the City Civil Service Commission, et al., Appellants.
    Submitted April 3, 1978;
    decided May 4, 1978
   Motions to vacate the orders of this court dated March 10, 1978 dismissing the appeals herein granted.

On the court’s own motion, appeals dismissed, without costs, upon the ground that the orders appealed from do not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of J. Jerome Olitt (Admitted as Jerome Olitt), an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted April 24, 1978; decided
    May 4, 1978
   Motion to dismiss appeal taken as of right granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Motion for a stay pending appeal dismissed as academic. Motion for a stay pending application for further relief denied.


text:
    In the Matter of Charles S. Stato et al., Appellants, v Martin Squicciarini et al., Respondents.
    Submitted March 20, 1978;
    decided May 4, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies from the judgment entered on the nonfinal order of the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 21, p 88; Matter of Stato v Squiccarini, 43 NY2d 949). [See 59 AD2d 718.]


text:
    Jose A. Sanchez, as Administrator of the Estate of Laura Sanchez, Deceased, et al., Appellants-Respondents, v. Village of Liberty et al., Respondents-Appellants, and New York State Electric & Gas Corporation, Respondent, et al., Defendant.
    Submitted March 13, 1978;
    decided March 29, 1978
    Submitted April 24, 1978; decided May 4, 1978
   Motion by defendants Village of Liberty and John Como for reargument of plaintiffs’ motion to clarify, treated as a motion by such defendants to amend remittitur, granted to the following extent: Return of remittitur directed and, when returned, it will be amended to read as follows: "Appeal dismissed, without costs, on the ground that the court was misled by submission of an incorrect joint appendix.” [See 42 NY2d 876.]


author: Cooke, J.

text:
    Erie County et al., Respondents, v Robert P. Whalen, as Commissioner of the New York State Department of Health, et al., Appellants.
    Argued March 22, 1978;
    decided May 9, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Michael F. Colligan, Ruth Kessler Toch and Kenneth J. Connolly of counsel), for appellants.

      T. J. Szymanski, County Attorney (Justyn N. Miller and Susan C. Goldberg of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Robert G. Main at the Appellate Division (57 AD2d 281).

Concur: Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Cooke dissents and votes to reverse in the following opinion.

Cooke, J.

(dissenting). I respectfully dissent. The order of the Appellate Division, directing entry of a judgment declaring the rule of the Commissioner of Health (10 NYCRR 40.11 [1]) invalid, should be reversed.

We are concerned with the right of a county to reimbursement for expenditures made by it for "fringe benefits”, i.e., contributions for employee health insurance and retirement funds including Social Security. The controversy — Erie County’s right to restitution from the State for such payments made in connection with general public health work — comes to us without factual dispute.

On September 24, 1975, Erie County authorities were advised by letter that the Commissioner of Health of the State of New York had approved for State aid reimbursement $8,371,876, of which $6,803,346 was allocated for salaries, wages and fees and $1,568,530 for other maintenance and operation. The missive stated that "Employee Fringe Benefits (Retirement, Social Security Medical Insurance)” were non-reimbursable. During the month following, Erie submitted vouchers to the Department of Health in which reimbursement was sought for employee fringe benefits paid in connection with general public health work and ghetto medicine programs. Thereafter, in November and December, 1975, Erie County received reimbursement checks for expenditures made in these programs, but each instrument excluded amounts claimed for fringe benefits. The nonpayment of these items was consistent with 10 NYCRR 40.11, entitled "Projects or services excluded”, which provides so far as pertinent:

"Projects or services excluded from State aid reimbursement are:
* * *
"(X) Employee beneñts. Contributions by counties and cities for employee health insurance and retirement funds including social security.”

In turn, this proceeding was commenced to secure a declaration that subdivision (1) be declared invalid and that respondents reimburse Erie County for fringe benefits expenses, pursuant to the Public Health Law. Special Term dismissed the petition and the Appellate Division, voting 3 to 2, reversed on the law and ordered that judgment be directed to be entered declaring the subdivision invalid and that Erie County be reimbursed for the subject fringe benefits.

Article 6 of the Public Health Law, as its title indicates, deals with the subject of State aid. Within it, section 601 — a segment of title I entitled "General Provisions”, provides: "The appropriations made or to be made for purposes of carrying out the provisions of this article shall be available * * * for the payment of expenses of personal service”. The gist of the county’s postion is that this statutory language mandates that all personal service expenses must be reimbursed and hence the instant regulation which purports to exclude reimbursement for such fringe benefits is invalid. Also contained within article 6 is title II (State Aid for General Public Health Work: Counties and Cities), and section 605 thereof, entitled "State aid to counties; general public health activities”, recites: "Whenever the board of supervisors of any county shall appropriate or otherwise make funds available and expend moneys for the construction, establishment or maintenance by such county of a county, community, or other public hospital, clinic, dispensary or similar institution, or for the purpose of defraying the expenses of such county in any public enterprise or activity for the improvement of the public health, or any public health work undertaken by such county, including any services and facilities provided for children regardless of the school which they legally attend, within limits to be prescribed by the commissioner, such county shall receive state aid in the manner and subject to the conditions prescribed in this article unless state aid is otherwise specifically provided for any such purpose by this chapter or any other law” (emphasis supplied).

A reasonable reading of these statutes, considered as positioned in the legislative pattern, demonstrates that section 601 lays down a general guide as to the types of services which might be reimbursable by the State and that section 605 empowers the Commissioner of Health to promulgate regulations as to the scope of reimbursement. Viewed in this light, 10 NYCRR 40.11 (1) which excludes contributions by counties for employee health insurance and retirement funds, is consistent with its statutory foundation. This conclusion is confirmed by section 609 which mandates: "It shall be the duty of the commissioner to formulate standards of construction, equipment, service, administration and work which must be complied with by municipalities in order to be entitled to state aid, and no state aid shall be given to any municipality unless the commissioner, after inspection and examination by him or his representative, shall make his certifícate that such construction, equipment, service, administration or work is necessary to the public health and conforms to the standards so established therefor, and to the limits prescribed by him as required by sections six hundred five and six hundred six of this chapter” (emphasis supplied). Simply, the Legislature would have made no sense in mentioning "state aid * * * to the limits prescribed by [the commissioner] as required by [section] six hundred five” if reimbursement "of expenses of personal service” is to be without limitation.

The majority at the Appellate Division point to a deletion from a predecessor of section 605 (former Public Health Law, § 19, subd 2) and urge that "the only reference to limits remaining in section 605 refers to the commissioner’s control over the type of health services to be estabished by counties and not to any authority of the commissioner to determine the particular costs of established services for which the counties are entitled to reimbursement.” This view ignores the salient fact that not only does present section 605 provide for the payment of State aid to counties "within limits to be prescribed by the commissioner”, but the predecessor even after the deletion mentioned also provided for such payment "within limits to be prescribed by the state commissioner of health” (L 1942, ch 1000, § 2). Adherence to the rationale propounded would be likely to reach absurd results for, according to the majority, once a project or type of health service is approved the commissioner is bound to reimburse a county — regardless of the extravagance or wastefulness of particular costs of established services. If this reasoning is followed to its logical conclusion, it would be possible for a county to pay exorbitant salaries to some favored few or even to all of its health connected officers and employees, agree to extended sick leave or vacation time credits and commit itself to overly generous contributions in a retirement plan — all subject to State reimbursement. Advisedly, to avoid severe budgetary problems and to protect the State treasury from unchecked depletion, the Legislature saw fit to empower the commissioner to promulgate regulations establishing limits within which State aid will be dispensed to the counties and cities across the State.

Both sides attempt to draw support from Matter of County of Erie v Hoch (47 Misc 2d 452, affd 26 AD2d 4, mod 19 NY2d 854). There, a county, the same as involved here, challenged a refusal by the Commissioner of Mental Hygiene to reimburse it for the same fringe benefits in suit here, under section 191-a of the Mental Hygiene Law. That statute originally provided that expenditures subject to reimbursement shall include "salaries of qualified and necessary personnel” (L 1961, ch 281, § 4). While the proceeding was pending, the statute was amended to require reimbursement for "all expenditures * * * incurred by a * * * county for qualified and necessary personnel” (L 1965, ch 647, eff June 28, 1965). No solace to the county can be garnered from this court’s memorandum there, in which it was held: "Under the pertinent provisions of the Mental Hygiene Law as they read prior to June 28, 1965, cities and counties which provided mental health services were entitled to 50% reimbursement from the State for sums expended for ’salaries of qualiñed and necessary personnel’ and all ’operation, maintenance and service costs’. It cannot be said that respondent Commissioner of Mental Hygiene abused his discretion by refusing, under this statute, to reimburse petitioner County of Erie for its employer contributions for hospitalization insurance, retirement under the State Employees’ Retirement System and social security coverage. Under the 1965 amendments, however, participating municipalities are not entitled to 50% reimbursement for 'all expenditures * * * incurred by a * * * county for qualiñed and necessary personnel’. This language is broad and unambiguous; therefore, petitioner-appellant is entitled to reimbursement from the State for all sums expended for such employer contributions since the effective date of the new law, June 28, 1965” (emphasis supplied). Here, section 601 of the Public Health Law does not require that all expenses of personal service be reimbursed. Instead, in this regard, it simply states that certain appropriations shall be available to the commissioner for the payment of expenses of personal service.

Had the Legislature intended that these fringe benefits be reimbursed without exception or restriction, it would have so stipulated. Thus, for example, even in article 6 of the Public Health Law, there is a specific direction for reimbursement in respect to costs incurred "for pensions, federal old age and survivors insurance and health insurance” in connection with certain air pollution programs (Public Health Law, § 608, subd 1, par e). This proviso was the product of a 1965 amendment (L 1965, ch 427), and it is reasonable to deduce that, had the Legislature desired that the fringe benefits in dispute here be the subject of State aid, explicit authority for them likewise would have been set forth. See, also, section 17-1905 of the Environmental Conservation Law (derived from former Public Health Law, § 1263-c; L 1972, ch 664, § 2).

An administrative regulation, legislative in character and possessed of the attributes of 10 NYCRR 40.11 (1), will be upheld as valid if it has a rational basis — if it is not unreasonable, arbitrary or capricious (Matter of Levine v Whalen, 39 NY2d 510, 518). Measured against such a yardstick, validity is apparent since, in sum, authority to impose limitations is conferred by section 605, there is no express or implied statutory direction that these fringe benefits be embraced within State aid, and it is reasonable beyond doubt that the State should be protected from the blank check that would otherwise hover in the wings, threatening the integrity of the public fisc at the whim of unwise or irresponsible local officials.

Order affirmed, etc.

       This limiting language goes all the way back to 1924 (L 1924, ch 278, § 1), the year after provisions concerning State aid to counties for public health work were added to the Public Health Law (L 1923, ch 662).


text:
    Lewis M. Cheatham, Respondent, v Margaret M. Cheatham, Appellant.
    Argued March 23, 1978;
    decided May 9, 1978

      APPEARANCES OF COUNSEL

      William G. Kerwick for appellant.

      Edwin J. Freedman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Douglas F. Young at Special Term.

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


author: Per Curiam.

text:
    The People of the State of New York ex rel. Joan Little, Appellant, v William Ciuros, Jr., as Commissioner of Correction of the City of New York, et al., Respondents.
    Argued May 3, 1978;
    decided May 9, 1978
    APPEARANCES OF COUNSEL

      William M. Kunstler and Margaret L. Ratner for appellant.

      Eugene Gold, District Attorney (Linda James McKay of counsel), for respondents.
   OPINION OF THE COURT

Per Curiam.

Relator commenced this habeas corpus proceeding to resist her extradition to the State of North Carolina. She concedes that the requisite jurisdictional requirements have been adequately demonstrated (see People ex rel. Higley v Millspaw, 281 NY 441, 445) but contends that if forced to return to North Carolina her constitutional rights will be violated and she will be subjected to cruel and inhuman treatment by correctional officials of that State.

Interstate extradition is mandated by article IV (§ 2, cl 2) of the Federal Constitution (Commonwealth of Kentucky v Dennison, 65 US [24 How] 66), which provides that a "Person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” The execution of this provision is provided for under Federal (US Code, tit 18, § 3182) and State statutes (CPL 570.02 et seq.), and no contention is made that any of the applicable provisions have not been complied with. The only contention here is that relator will be subjected to unconstitutional treatment by the demanding State. In all but the most unusual circumstances such prospective claims may not be invoked in an asylum State for the purpose of preventing extradition, and when faced with such prospective claims the court need not embark upon an inquiry of their validity (see People ex rel. Wendt v Harkness, 52 AD2d 678, mot for lv to app den 40 NY2d 804); it is not within the competency of the New York courts to determine whether the prison officials of a sister State will, prospectively, deprive relator of her constitutional rights. The executive responsibility may be another matter, but on that we do not pass. The scheme of extradition, as set forth in both the Federal Constitution and the statutes implementing it, contemplates the prompt return of a fugitive as soon as the State from which she fled appropriately demands her return. These provisions would seem to preclude judicial review in the asylum State of claimed, potential, constitutional abuses. "Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of [her] treatment by [the demanding State] in the courts of that State” (Sweeney v Woodall, 344 US 86, 90). In short, one alleging present or future improper activity in another State is under the necessity of seeking redress in accordance with law and in the forum in which the alleged improprieties will occur. The necessities of our Federal system require this result. It may be that if there were, as is not true here, factual affidavits reflecting clear evidence that gross irreparable harm would result if the petition" is denied, a judicial hearing might be envisaged. Even then there would have to be persuasive demonstration that effective access to State and Federal courts in the demanding State would not be available. Unless ready to interfere with the constitutional mandate, and to disregard the applicable Federal and State statutes, the courts of this State may not routinely sit in judgment over acts performed by officials in our sister States nor may they give sanctuary to a fugitive of another State without compelling cause.

Accordingly, the order of the Appellate Division should be affirmed, without costs. This determination shall not take effect for 10 days.

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

Order affirmed, without costs. The stay previously granted by this court is continued until May 19, 1978, the date on which the remittitur of this court shall issue.


text:
    City of New York, Appellant, v Long Island Railroad Company, Defendant-Respondent and Third-Party Plaintiff. Hiram Walker Properties, Inc., et al., Third-Party Defendants.
    Argued March 27, 1978;
    decided May 9, 1978

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Stephen P. Kramer and L. Kevin Sheridan of counsel), for appellant.

      Angelo Granatelli, George M. Onken and Armand J. Prisco for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment should be granted and defendant third-party plaintiff’s cross motion for summary judgment should be denied.

Pursuant to certain consents and franchises, The Long Island Railroad Company was granted the privilege of using and occupying certain streets in the Boroughs of Brooklyn and Queens, in consideration for which it paid certain sums of money annually to the City of New York. On January 20, 1966, said railroad was acquired by the Metropolitan Transportation Authority pursuant to power conferred by section 1266 of the Public Authorities Law. The authority refused to continue payment, contending that under section 1275 of said law it is exempt from paying State or local fees, taxes or assessments upon any of its property or upon the use thereof and that the railroad, as its subsidiary corporation, is entitled to all of the privileges, immunities, tax exemptions and other exemptions of the authority itself, pursuant to subdivision 5 of section 1266.

The amounts allegedly due stem from contractual obligations rather than a liability to pay real property or franchise taxes and, therefore, section 1275 does not relieve the Long Island Railroad of their payment (City of New York v Long Is. R. R. Co., 49 AD2d 540, affd 43 NY2d 780). There is a critical distinction between a tax as contemplated by section 1275 and the consents and franchises involved herein, the former being imposed by the sovereign and the latter being based on the voluntary action of the parties (see Real Property Tax Law, § 102, subd 20; Sands v Manistee Riv. Improvement Co., 123 US 288, 294; Central Sav. Bank v City of New York, 279 NY 266, 280, cert den 306 US 661). Significantly, the 1972 Legislature added section 1267-b to the Public Authorities Law, under subdivision 2 of which it is provided: "In addition to the powers provided elsewhere in this title * * * [the Metropolitan Transportation Authority] may : * * * b. Occupy the streets of the city of New York, without further consent or payment, in the course of constructing and thereafter owning a transit facility” (L 1972, ch 576, § 3, eff May 24, 1972). We have a right to assume that the Legislature did not deliberately enact this statutory provision without a purpose (Matter of Smathers, 309 NY 487, 495).

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

Order reversed, etc.


text:
    Hudson Valley Sand and Stone Company, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 58378.)
    Argued March 29,1978;
    decided May 9, 1978

      APPEARANCES OF COUNSEL

      Patrick J. Keniry for appellant.

      Louis J. Lefkowitz, Attorney-General (Joseph F. Gibbons and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (57 AD2d 344).

Concur: Chief Judge Breitel and Judges Jasen, Jones, Fuchsberg and Cooke. Judges Gabrielli and Wachtler dissent and vote to reverse on the concurring in part and dissenting in part opinion by Mr. Justice Robert G. Main at the Appellate Division (57 AD2d, at pp 347-348).


text:
    Bethlehem Steel Corporation, Respondent, v Board of Education of the City School District of Lackawanna et al., Appellants; Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor. Jean W. Jones et al., Respondents-Appellants, v City School District of the City of Geneva, Appellant-Respondent; Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor. Jeannette C. Waldert, Respondent-Appellant, v City of Rochester, Appellant-Respondent; Thomas R. Frey, Intervenor-Appellant-Respondent; Louis J. Lefkowitz, as Attorney-General of the State of New York, Intervenor.
    Argued May 2, 1978;
    decided May 9, 1978;
    remittiturs signed June 8, 1978

      APPEARANCES OF COUNSEL

      John J. Olszewski and Peter A. Vinolus for appellants in the first above-entitled action.

      Albert E. Bond for appellant-respondent in the second above-entitled action.

      Louis N. Kash, Corporation Counsel (Susan L. Hauser and Barry C. Watkins of counsel), for appellant-respondent in the third above-entitled action.

      David K. Floyd and David Alan Sands for respondent in the first above-entitled action.

      John Van Voorhis for respondents-appellants in the second and third above-entitled actions.

      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), in his statutory capacity under section 71 of the Executive Law.

      Harry Treinin for City School District of City of Corning, amicus curiae.

      Joseph P. McNamara, Corporation Counsel of City of Buffalo (Stanley A. Moskal, Jr., of counsel), amicus curiae.

   OPINION OF THE COURT

Per Curiam.

For the reasons expressed in the opinion of Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division, chapters 349 (as amd by ch 485) and 484 of the Laws of 1976, insofar as it assigns a period of probable usefulness to the cost of current health and dental insurance coverage, are declared unconstitutional in their entirety. The challenged legislation, including the alternative State Real Property Tax Act (L 1976, ch 349, § 3), presents nothing more than an attempt to circumvent the constitutional limitation upon the amount of revenue that may be raised by local subdivisions of the State through the taxation of real property. (NY Const, art VIII, § 10.) On a previous occasion, this court has been constrained to strike down legislative measures in palpable evasion of those constitutional provisions designed to limit the taxing powers of local subdivisions of the State. (Hurd v City of Buffalo, 34 NY2d 628, 629, affg 41 AD2d 402.) For present purposes, chapters 349 and 484 of the Laws of 1976 are indistinguishable from the legislation struck down as unconstitutional in Hurd (supra). We would further add that section 7 of chapter 349, which purports to restrict the judicial authority to fashion remedies, constitutes a patently unconstitutional infringement on the powers of the judiciary.

In holding this legislation unconstitutional, we reject, as did the Appellate Division, defendants’ contention that the fiscal crisis presently encountered by cities and school districts constitutes an emergency justifying suspension of constitutional limitations pursuant to the emergency clause in the State Constitution. (NY Const, art III, § 25.) Certainly, the present fiscal hardship, grave as it is, cannot seriously be equated with the emergencies contemplated in the Constitution: that is, enemy attack or other forms of disaster. (See Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731, 740.) Thus, in holding unconstitutional the New York State Emergency Moratorium Act for the City of New York (L 1975, ch 874, as amd by L 1975, ch 875), we stated that the consequences of that legislation could "not be justified by fugitive recourse to the police power of the State or to any other constitutional power to displace inconvenient but intentionally protective constitutional limitations.” (Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y, 40 NY2d, at p 736.)

The State is not confronted with a situation in which it has no choice but to provide additional revenues for local government through the imposition of real property taxes in excess of the constitutional limitation. Obviously, real property taxes are not the only source of revenue available to support local subdivisions. Revenue for local subdivisions can be, and is, generated through various alternate vehicles.

While we agree with the Appellate Division’s affirmance of the judgments of Special Term declaring chapters 349 and 484 of the Laws of 1976 unconstitutional, we disagree with its conclusion that the plaintiffs in Jones v City School Dist. of Geneva and Waldert v City of Rochester are not entitled to repayment of the taxes paid in excess of the tax limitation provided in the Constitution. Although in Hurd (supra) plaintiffs’ award was limited to prospective relief because of their reliance upon the invalidated legislation in preparation of their budgets, the same rationale can no longer be applicable today. In view of Hurd (supra), local subdivisions were put on notice that patent circumvention of constitutional limitations on their taxing powers would not be tolerated. Similarly, we believe that the plaintiff in Bethlehem Steel Corp. v Board of Educ. is entitled to establish its rights to repayment of real property taxes paid in excess of the constitutional limitation if such taxes were paid under appropriate protest.

Accordingly, the order of the Appellate Division in Bethlehem Steel Corp. v Board of Educ. should be affirmed, with costs, and the orders of the Appellate Division in Jones v City School Dist. of City of Geneva and Waldert v City of Rochester should be modified, with costs, to reinstate the judgments of Special Term granting petitioners a tax refund, and, as so modified, affirmed. Chapters 349 and 484 of the Laws of 1976 are declared unconstitutional, and the proposed remittitur settled on 20 days’ notice.

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

In Bethlehem Steel Corp. v Board of Educ. of City School Dist. of Lackawanna: Order affirmed, with costs, proposed remittitur to be settled on 20 days’ notice.

In Jones v City School Dist. of City of Geneva: Order modified, with costs to plaintiffs, in accordance with the opinion herein and, as so modified, affirmed. Proposed remittitur to be settled on 20 days’ notice.

In Waldert v City of Rochester: Order modified, with costs to plaintiff, in accordance with the opinion herein and, as so modified, affirmed. Proposed remittitur to be settled on 20 days’ notice.

       See e.g., Tax Law, art 29, Taxes Authorized for Cities, Counties and School Districts; New York Lottery for Education (Tax Law, art 34); Corporation Tax (Tax Law, art 9); Franchise Tax on Business Corporations (Tax Law, art 9-A); Estate Tax (Tax Law, art 10-B); Mortgage Tax (Tax Law, art 11); Real Estate Transfer Tax (Tax Law, art 31); Stock Transfer Tax (Tax Law, art 12); Gasoline Tax (Tax Law, art 12-A); Alcoholic Beverages Tax (Tax Law, art 18); Cigarette and Tobacco Tax (Tax Law, art 20); Personal Income Tax (Tax Law, art 22); Highway Use Tax (Tax Law, art 21); Gift Tax (Tax Law, art 26-A); Sales and Use Taxes (Tax Law, art 28).


text:
    John V. Chrapa, Appellant, v James Johncox, Individually and Doing Business as Sunnyside Cycle Center, et al., Defendants, and Alliance Assurance Company, Ltd., et al., Respondents.
    Submitted March 6, 1978;
    decided May 9, 1978
   OPINION OF THE COURT

Motion to dismiss appeal granted and the appeal dismissed, without costs, 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, § 38, pp 155-156; § 46, p 204; see, e.g., Seligman v Tucker, 36 NY2d 921; Cremonin v Wahhab, 300 NY 459).


text:
    Paul A. Fino, Appellant, v NYM Corporation et al., Respondents.
    Submitted April 17, 1978;
    decided May 9, 1978
   OPINION OF THE COURT

Motion for leave to appeal dismissed as untimely (CPLR 2103, subd [b], par 2; 5513, subd [b]).


text:
    Patricia J. Iannucci, as Administratrix of the Estate of Frank S. Iannucci, Deceased, Appellant, v Yonkers General Hospital et al., Respondents.
    Submitted March 27, 1978;
    decided May 9, 1978
   OPINION OF THE COURT

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695; Cohen and Karger, Powers of the New York Court of Appeals, § 20, pp 81, 84-93).


text:
    J. N. A. Realty Corp., Respondent, v Cross Bay Chelsea, Inc., Appellant, et al., Respondents.
    Submitted April 10, 1978;
    decided May 9, 1978
   Motion for clarification of the remittitur denied. [See 42 NY2d 392.]


text:
    Elissa Lord, Appellant, v State of New York, Respondent.
    (Claim No. 52433.)
    Submitted April 24, 1978;
    decided May 9, 1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Gerald G. G. (Anonymous). Kerry B. M. (Anonymous) et al., Appellants; Gerald P. G. (Anonymous), Respondent.
    Submitted May 1, 1978;
    decided May 9, 1978
   Motion for a stay denied upon the ground that the relief requested involves matters not presently on appeal to this court.


text:
    Mohawk Airlines, Inc., et al., Respondents, v Ann C. Peach, Individually and as Parent and Natural Guardian of Ryan E. Peach, an Infant, Appellant, and Minge C. Peach et al., Respondents.
    Submitted April 17, 1978;
    decided May 9, 1978
   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).


text:
    Mutual Life Insurance Company of New York, Respondent, v Solomon Hayden, Appellant.
    Submitted April 10, 1978;
    decided May 9, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light Co., 36 NY2d 754).


text:
    Bernard L. Seligman, on Behalf of Himself and All Other Policyholders of the Guardian Life Insurance Company of America, Similarly Situated, Appellant, v Guardian Life Insurance Company of America, Respondent.
    Submitted April 24, 1978;
    decided May 9, 1978
   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 (Ross v Amrep Corp., 42 NY2d 856).


text:
    In the Matter of Elizabeth Brown, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.
    Argued March 31, 1978;
    decided May 11,1978

      APPEARANCES OF COUNSEL

      John G. Lipsett for appellant.

      W. Bernard Richland, Corporation Counsel (Laurence B. Jones and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (54 AD2d 944).

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


text:
    Richard E. Doty, Respondent, v Angelo P. Maniccia et al., Doing Business as Red Dragon, Appellants. Gerald R. Carey, Respondent, v Angelo Maniccia et al., Doing Business as Red Dragon, Appellants.
    Submitted March 31, 1978;
    decided May 11, 1978

      APPEARANCES OF COUNSEL

      David W. Perfetti for appellants.

      James A. Kendall for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 937).

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


text:
    United States Stationery Company, Respondent, v State Tax Commission, Appellant.
    Argued March 31, 1978;
    decided May 11, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for appellant.

      Jerome M. Lasky, David B. Eizenman and Irving Sitnick for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the opinion by Mr. Justice Michael E. Sweeney at the Appellate Division (57 AD2d 187).

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


text:
    Statewide Savings and Loan Association, Appellant, v Canoe Hill, Inc., Respondent, et al., Defendant.
    Argued March 31, 1978;
    decided May 11, 1978

      APPEARANCES OF COUNSEL

      Robert L. Carnright for appellant.

      Carroll J. Mealey and Thomas O. Kellogg for respondent.
   OPINION OF THE COURT

Memorandum.

In this case, where the parties are the original mortgagor and mortgagee, any intention to include the personalty within the embrace of the mortgage by its omnibus reference to "all the fixtures and articles of personal property, now or hereafter attached to or used in connection with the premises” is negated by the simultaneous execution of the separate security agreement covering "Furniture * * * and all equipment * * * owned by the debtor for use in connection with the maintenance and upkeep of the golf club and golf course” (cf. General Synod of Reformed Church v Bonac Realty Corp., 297 NY 119; East Riv. Sav. Bank v 671 Prospect Ave. Holding Corp., 280 NY 342). Consistently, the complaint did not allege that the mortgage covered the personal property, the referee’s notice of sale on foreclosure did not enumerate it, the auctioneer did not offer it and the referee’s report was completely silent on the subject.

Accordingly, the order should be affirmed, with costs.

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

Order affirmed.


text:
    Juleah Co., Respondent, v Incorporated Village of Roslyn, Appellant.
    Argued March 31, 1978;
    decided May 11, 1978

      APPEARANCES OF COUNSEL

      Clarence E. Steinberg for appellant.

      Robert M. Calica for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division (56 AD2d 483).

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


text:
    Created Gemstones, Inc., Appellant, v Union Carbide Corporation, Respondent.
    Submitted May 1, 1978;
    decided May 11, 1978
   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, insofar as it involves plaintiffs causes of action, does not finally determine the action within the meaning of the Constitution and upon the further ground that the order appealed from, insofar as it involves defendant’s counterclaims, does not present a modification in a respect reviewable by the Court of Appeals (CPLR 5601, subd [a], par [iii]).


text:
    G. B. Kent & Sons, Ltd., Appellant, v Helena Rubinstein, Inc., Respondent.
    Submitted May 1, 1978;
    decided May 11, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, as untimely upon the ground that neither the notice of motion nor the supporting papers were filed with the court until after the April 3, 1978 statutory return date of the motion (CPLR 5516; Matter of Petrillo v Bates, 43 NY2d 826).


text:
    Harold G. Lacks, Respondent, v Irene R. Lacks, Appellant.
    Decided May 11, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the order appealed from does not finally determine the action within the meaning of the Constitution and that no substantial constitutional question is directly involved.


text:
    Lake Steel Erection, Inc., Appellant, v Charles Egan, Doing Business as Contractor’s Component Sales Co., Respondent.
    Submitted May 1, 1978;
    decided May 11, 1978
   Motion for leave to appeal dismissed, with $20 costs, upon the ground that this court does not have power to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    In the Matter of the Arbitration between HRH Construction Corporation, Appellant, and Bethlehem Steel Corporation, Respondent.
    Submitted May 8, 1978;
    decided May 11, 1978
   Motion to dismiss the appeal herein denied.

Motion for stay of arbitration pending determination of the appeal granted.


text:
    The People of the State of New York ex rel. Leon C. Scott, Appellant, v Lewis Greco, as Warden of the New York City Correctional Institution for Men, Respondent.
    Submitted April 10, 1978;
    decided May 11, 1978
   Motion for leave to appeal denied.

Motion by relator, insofar as it seeks a stay of extradition pending disposition of appeal in this court, dismissed as academic; insofar as it seeks a stay pending application to the United States Supreme Court for a writ of certiorari, motion dismissed upon the ground that it does not lie (US Code, tit 28, § 2101, subd [f]).

Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Polytemp, Inc., Respondent, v Daniel E. Sell, Appellant.
    Submitted April 24, 1978;
    decided May 11, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction costs, upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).

Cross motion to dismiss the appeal taken as of right herein granted and appeal dismissed, with costs, upon the ground that it does not lie (NY Const, art VI, § 3, subd b, par [7]).