text:
    Central Square Teachers Association et al., Respondents, v Board of Education of the Central Square Central School District, Appellant.
    Argued January 7, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Richard C. Heffern and Robert W. Kopp for appellant.

      Kevin H. Harren and Bernard F. Ashe for respondents.
   OPINION OF THE COURT

Memorandum.

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

By express provision both of the “Statement of Grievance” and of the agreement reached by the parties at the commencement of the arbitration the issue submitted for resolution was whether the district had violated article II (subd G) or article XXVII (subd A), or both, of the collective bargaining agreement by assigning teachers in the junior high school to cafeteria duty. The arbitrator concluded: “This grievance is upheld” — a determination in favor of the teachers association of the precise issue submitted. The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny. The issue resolved having been the issue tendered, and the resolution not being wholly irrational, there is no occasion for judicial intervention.

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    David Christian, as Administrator of the Estate of Darryl Christian, Deceased, Appellant, v New York City Transit Authority, Respondent.
    Argued January 8, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Frederic Lewis for appellant.

      Steve S. Efron, Helen R. Cassidy and John A. Murray for respondent.
   OPINION OF THE COURT

Memorandum.

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

The judgment in favor of plaintiff was properly reversed and the complaint dismissed. As a matter of law there was insufficient evidence of any negligence on the part of the Transit Authority to’ permit the case to go to the jury.

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

Order affirmed.


text:
    Lawrence Freundlich et al., Respondents, v Town Board of Southampton et al., Defendants, and Ocean Creek Associates et al., Appellants.
    Submitted January 6, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Norman S. Abrams for appellants.

      Charles T. Matthews and Stuyvesant Wainwright II for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the respondents violated the town ordinance by altering lot lines in an approved subdivision without following the mandated procedures. The lot lines on the revised plan under which the lots were to be sold were at variance with those on the first subdivision which was approved by the town planning board. It follows, therefore, that this attempted resubdivision is invalid (see Town of Southampton Rules and Regulations for Subdivision of Land, § 218, § 300 et seq.).

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Doris Chambers, Appellant.
    Argued January 5, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Jerald Rosenthal for appellant.

      Robert M. Morgenthau, District Attorney (Jerrold L. Neugarten, Robert M. Pitler and William J. Comiskey of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. In this case, in which the Appellate Division affirmed the findings made by the suppression court, we cannot say as a matter of law that probable cause to enter the apartment and to conduct a search was not established. As to the sentencing issue raised by the defendant, no question of law was preserved for our review.

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


text:
    The People of the State of New York, Respondent, v Melvin Martin, Appellant.
    Argued January 5, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Lewis R. Friedman, Herman Kaufman, Jack T. Litman, Richard M. Asche and Sharon L. Norton for appellant.

      Robert M. Morgenthau, District Attorney (Jerrold L. Neugarten, Robert M. Pitler and William J. Gomiskey of counsel), for respondent
   OPINION OF THE COURT

Order affirmed. In this case, in which the Appellate Division affirmed the findings made by the suppression court, we cannot say as a matter of law that probable cause to enter the apartment and to conduct a search was not established. As to the sentencing issue raised by the defendant, no question of law was preserved for our review.

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


text:
    The People of the State of New York, Respondent, v Belinda Cunningham, Appellant.
    Argued January 5, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Robert A. Goldschlag and Jack S. Hoffinger for appellant.

      Robert M. Morgenthau, District Attorney (Jerrold L. Neugarten, Robert M. Pitler and William J. Comiskey of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. In this case, in which the Appellate Division affirmed the findings made by the suppression court, we cannot say as a matter of law that probable cause to enter the apartment and to conduct a search was not established.

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


text:
    The People of the State of New York, Respondent, v Gilberto Ruiz, Appellant.
    Argued January 7, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Joseph Calluori and William E. Hellerstein for appellant.

      Mario Meróla, District Attorney (Howard K. King, Gail Jacobs and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Without more, in the circumstances revealed by this record we cannot say as a matter of law that the trial court abused its discretion when it denied the defendant’s request for a lineup made at a time when, some five months after the initial indentification, it is not disputed the defendant presented a somewhat altered appearance.

As to appellant’s contention that, despite an otherwise unobjectionable charge on the burden of proof, the Trial Judge should have granted the request that the jury be instructed on circumstantial evidence, as we have only recently reiterated, a special instruction on that subject is required only when the prosecution’s case rests on circumstantial evidence alone (People v Gerard, 50 NY2d 392; People v Barnes, 50 NY2d 375).

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

Order affirmed.


text:
    The People of the State of New York, Appellant, v Dennis Monsanto, Respondent.
    Argued January 6, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (David H. Steiner and Norman Barclay of counsel), for appellant.

      Mark Lemle Amsterdam for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (73 AD2d 576).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judge Jasen dissents and votes to reverse for the reasons stated in the dissenting memoranda of Justices Leonard H. Sandler and Samuel J. Silverman at the Appellate Division (73 AD2d 577-578, 578-582).


text:
    The People of the State of New York, Appellant, v Frank Coffaro, Respondent.
    Argued January 7, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      John T. Ward, District Attorney (Robert E. Seydel of counsel), for appellant.

      Robert W. Van Every for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Chautauqua County Court should be reversed and the case remitted to that court for review of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]). Defendant was convicted in the Jamestown City Court, after a jury trial, of obstructing governmental administration (Penal Law, § 195.05). The County Court reversed holding that defects in the papers on which was issued the warrant which the officer involved in the obstruction charged sought to execute made it invalid as a matter of law, and that defendant, therefore, had the right to resist its execution.

The defects in the warrant did not render it facially invalid. As we held in People v Briggs (19 NY2d 37, 42) : “No orderly government would be possible if the sufficiency of the proof before a Magistrate upon which a warrant, good on its face, is issued, were to be decided by armed resistance to the execution of the warrant. The place to test out a process as being good or bad is in a court.” Especially is that true where, as here, the issuance of the warrant was not ex parte but on motion at the disposition of which defendant appeared in court. Nor can Briggs be distinguished as defendant seeks to do by pointing out that section 35.27 of the Penal Law, enacted thereafter, is limited to an arrest, for under both section 195.05 and subdivision 3 of section 120.05 of that law a police officer or peace officer is protected in the performance of an official function of whatever kind.

Defendant argues that he is nonetheless entitled to an affirmance because the City Court Judge denied his speedy trial motion without an evidentiary hearing. Under CPL 470.35 (subd 2, par [b]), we may, because defendant was adversely affected by the City Court’s denial of that motion, consider his speedy trial contention. On the merits, however, it does not avail him. The motion papers show that it was made under CPL 30.20 rather than CPL 30.30, and the affidavit in support of the motion established that defendant was not incarcerated, and that of the 13 months between filing of the information and the date of the motion at least 9 were the result of a pretrial conference and motions made by defendant. In light of those facts and of the failure of the affidavit to allege any impairment of his defense as a result of the delay, defendant’s motion could properly be denied without a hearing (cf. People v Taranovich, 37 NY2d 442, 445).

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

Order reversed and case remitted to Chautauqua County Court for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v Lincoln Parker, Appellant.
    Argued January 8, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Daniel J. Gotlin for appellant.

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

Order reversed and order of Supreme Court, New York County, dismissing the indictment reinstated for the reasons stated in the dissenting opinion of Mr. Justice Harold Birns at the Appellate Division (70 AD2d 387, 391-394).

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


text:
    The People of the State of New York, Appellant, v Anthony Serrano, Respondent.
    Argued January 8, 1981;
    decided February 10, 1981

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Norman Barclay and Robert M. Pitler of counsel), for appellant.

      Salvatore Canonico for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the dissenting opinion of Mr. Justice Harold Birns in People v Parker (70 AD2d 387, 391-394).

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


text:
    Morton E. Jenkins et al., Respondents, v Sidney Etlinger et al., Appellants.
    Submitted January 5, 1981;
    decided February 10, 1981
   Motion to dismiss the appeal denied.


text:
    Abco Bus Co., Inc., Respondent, v Frank J. Macchiarola, Individually and as Chancellor of the Board of Education of the City of New York, et al., Appellants.
    Argued January 9, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.

      Harvey L. Greenberg for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed for reasons stated in the dissenting memorandum by Mr. Justice James D. Hopkins at the Appellate Division (75 AD2d 831, 833-834).

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


text:
    In the Matter of Omega Transportation Co., Inc., Repondent, v Stephen I. Aiello et al., Constituting the Board of Education of the City of New York, et al., Appellants.
    Argued January 9, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick and Carolyn E. Demarest of counsel), for appellants.

      Norman Turk for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed (see Matter of Abco Bus Co. v Macchiarola, 52 NY2d 938, detided herewith). Question certified not answered as unnecessary.

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


text:
    In the Matter of Robert Sica, Appellant, v New York State Employees’ Retirement System et al., Respondents.
    Argued January 9, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Charles E. Blitman for appellant.

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Shirley Adelson Siegel of 'counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 927).

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


text:
    Lily Dale Assembly, Inc., Appellant, v County of Chautauqua, Defendant, and Gregory D. Josephson, Respondent.
    Argued January 13, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Bruce K. Carpenter for appellant.

      Philip A. Erickson for respondent.

      Robert Abrams, Attorney-General (Stanley Fishman and Shirley Adelson Siegel of counsel), pro se.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 950; see, also, Real Property Tax Law, § 504, subd 4).

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


text:
    In the Matter of Belnord Holding Corp. et al., Appellants, v Daniel W. Joy, as Commissioner of the Rent Control Division of the Office of Rent and Housing Maintenance, Department of Housing Preservation and Development of the City of New York, Respondent.
    Argued January 12, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Jack Newton Lerner for appellants.

      Carl Holmes and Harry Michelson for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 549).

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


text:
    The People of the State of New York, Respondent, v Adela Holzer, Appellant.
    Argued January 12, 1981;
    decided February 12, 1981
    APPEARANCES OF COUNSEL

      Norman L. Reimer and Arthur M. Unterman for appellant.

      Robert Abrams, Attorney-General (Mark A. Tepper, Shirley Adelson Siegel and Sheldon Horowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of seven counts of grand lar- ’ ceny in the second degree in consequence of her operation of a so-called “Ponzi scheme” involving proposed investment of moneys belonging to her victims in Spanish real estate and the importation of automobiles, trucks and parts into Indonesia. Defendant predicates her arguments for reversal of her convictions on alleged errors in the court’s charge to the jury. Principally she argues that it was error on the part of the trial court in submitting the charges of larceny not to have charged in accordance with what she asserts is the command of the second sentence of the second grammatical paragraph of section 155.05 (subd 2, par [d]) of the Penal Law. In consequence of the failure of her counsel either to make a request for the desired charge or to except to the court’s failure so to charge the issue has not been preserved for our review.

We have examined defendant’s other contentions and conclude either that, in consequence of failure to register timely protest, they were not preserved or that they are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of the Town of Greenburgh. Hazel Turner, Also Known as Hazel Jolley, Respondent. Commissioner of Finance of Westchester County, Appellant.
    Argued January 8, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Samuel S. Yasgur, County Attorney (Jane Bilus Gould and Jonathan Lovett of counsel), for appellant.

      Hyman Hecker for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (70 AD2d 409), noting that the interest referred to in former subdivision 2 of section 555 of the General Municipal Law is interest on the judgment not interest on the money deposited.

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


text:
    Kay Jolan et al., Appellants, v Walter J. Johnson, Defendant, and Walter J. Johnson, Inc., Respondent.
    Submitted January 9, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Ferdinand J. Wolf for appellants.

      Arthur L. Liman, Mark A. Belnick and Andrew Kull for respondent.
   OPINION OF THE COURT

Order affirmed, with costs to respondent against appellants personally, for reasons stated in the memorandum at the Appellate Division (73 AD2d 858).

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


text:
    The People of the State of New York, Respondent, v John Borrello, Appellant. The People of the State of New York, Respondent, v Efrain Arroyo, Appellant.
    Argued January 12, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Alisa F. Levin for John T. Borrello, appellant.

      Charlene Terzian Hyler and William E. Hellerstein for Efrain Arroyo, appellant.

      Eugene Gold, District Attorney (Michael F. Baum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed".

The trial court charged the jury that in order to find the defendants guilty of burglary in the third degree, it was required to determine that the defendants had entered the premises with the intent to commit a crime. In view of this charge, the court did not commit reversible error in refusing defendants’ request that the court specify that the People had to show, in addition to the entry of the premises, that defendants intended to commit a “felony or a misdemeanor” therein.

It is urged by the defendant that the court should have charged that the lesser included offense of trespass could not be the underlying intended crime. Although defense counsel alluded to this point during his colloquy with the Trial Judge after the charge, he never requested the charge and therefore the point is not preserved for our review.

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

In each case: Order affirmed in a memorandum.


text:
    In the Matter of James H. Sheils et al., Respondents, v State Tax Commission, Appellant.
    Argued January 13, 1981;

    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Shirley Adelson Siegel of counsel), for appellant.

      Alfred Wheeler, Sidney Smolowitz and Osias Biller for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the determinations of the State Tax Commission reinstated (see Matter of Gurney v Tully, 51 NY2d 818).

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


text:
    The People of the State of New York, Appellant, v Dominick Dercole, William Lungarelli and Julius Cianciola, Respondents.
    Argued January 8, 1981;
    decided February 12, 1981
    APPEARANCES OF COUNSEL

      Roderick C. Lankier, Special State Prosecutor (Mark M. Baker and Vincent J. Torna of counsel), for appellant.

      Gary Schoer for respondents.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

The Appellate Division’s determination to reverse did not satisfy the jurisdictional predicate that it be made on the law alone or on the law and such facts which, except for the determination of law, would not have led to the reversal (CPL 450.90, subd 2). Although the order states that the reversal is on the law, the opinion reveals that it was based on the asserted repugnancy of the trial court’s verdicts, to which timely objection had not been taken.

As we made clear in People v Johnson (47 NY2d 124), a reversal by the Appellate Division based on claimed trial error to which objection is not taken presents no questions of law for appellate review in this court (see CPL 470.05, subd 2). We also gave expression to this principle in People v Cona (49 NY2d 26, 33-34) where, confronted with an Appellate Division conclusion as a matter of law that there had been preservation despite failure to object, we held, citing to Johnson (supra), that our review could proceed no further than reversal on that singular point of law and remittal to the Appellate Division to decide whether it was appropriate to treat the question within the exercise of its discretion.

In view of the dismissal thus mandated, this court, of course, has not reached the merits. It therefore goes without saying that our disposition does not reflect indorsement of the rulings contained in the opinion below (see Panico v Young, 46 NY2d 847).

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

Appeal dismissed in a memorandum.


text:
    In the Matter of the Arbitration between Anthony Bamond, III, Respondent, and Nationwide Mutual Insurance Company, Appellant.
    Submitted January 12, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      John J. Wrenn and Peter A. Perone for appellant. Howard Karger for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 812).

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


text:
    In the Matter of Rosser Reeves et al., Respondents, v State Tax Commission et al., Appellants.
    Argued January 13, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Shirley Adelson Siegel of counsel), for appellant.

      Richard H. Kuh and Michael A. Scheffler for respondents.
   OPINION OF THE COURT

Judgment reversed, with costs, and determination of the State Tax Commission reinstated for reasons stated in the dissenting memorandum by the late Mr. Justice Ellis J. Staley, Jr., at the Appellate Division (74 AD2d 934, 936; see, also, Matter of Shapiro v State Tax Comm., 50 NY2d 822, and Matter of Babbin v State Tax Comm., 49 NY2d 846).

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


text:
    In the Matter of Thomas A. Galante & Son, Inc., Respondent, v State Division of Human Rights on the Complaint of Bernice Clay, Appellant.
    Submitted January 9, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      Lois McS. Webb for appellant.

      Kohn, Bookstein & Karp for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 1023).

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


author: Gabrielli, J.

text:
    SCA Chemical Waste Services, Inc., Respondent, v Board of Appeals of the Town of Porter et al., Appellants.
    Argued January 6, 1981;
    decided February 12, 1981

      APPEARANCES OF COUNSEL

      George A. Orr, Jr., for appellants.

      H. Kenneth Schroeder, Jr., Stephen H. Kelly and Anne S. Simet for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice John J. Callahan at the Appellate Division (75 AD2d 106).

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

Gabrielli, J.

(dissenting). I am required to dissent for I believe that the majority errs in affirming the determination of the Appellate Division, which held that a large pipeline carrying hazardous industrial waste water from an industrial waste disposal plant is not an impermissible industrial activity within the meaning of the zoning laws of the Town of Porter. As demonstrated below, such a pipeline can be nothing but an industrial activity, and should therefore properly be prohibited from traversing the agricultural, residential and environmental zones of the town.

Petitioner SC A Chemical Waste Services, Inc., is engaged in the business of disposing of vast amounts of hazardous industrial waste. In 1974 the State Department of Environmental Conservation granted permission to petitioner for the discharge of treated waste water in the Niagara River. In 1978, petitioner’s discharge permit was amended to allow it to discharge the effluent into a nearby creek which runs into the river, provided that a 20:1 dilution ratio of water to effluent was maintained. However, this was unworkable since the creek proved to be too small and petitioner found it impossible to dispose of a significant amount of effluent while maintaining the required dilution factor. By 1979, petitioner’s storage facilities were in danger of becoming completely inadequate, and petitioner thereupon proposed building a pipeline to carry the effluent from its' plant to the river, a distance of approximately five miles. An application was approved by the Department of Environmental Conservation. Since the projected route of the pipeline was to pass through the Town of Porter, petitioner applied to the town for (1) excavation, (2) construction, and (3) special use permits. The town rejected the applications on several grounds, concluding first that the pipeline activity, including the treatment of the waste and effluent, the construction of the pipeline and its patrolling and maintenance was an industrial use not permitted by the provisions of the zoning regulations governing the area through which the pipeline was to pass. Additionally the board concluded that the pipeline presented an unacceptable danger to public health and the environment.

The instant article 78 proceeding to challenge that determination ensued. Special Term rejected the finding that the pipeline would be a danger, but concluded that the board had not acted improperly in denying the application on the ground that the pipeline was a forbidden industrial use. On petitioner’s appeal to the Appellate Division, that court reversed and concluded that the petitioner was entitled to the permits because a “pipeline” is not an industrial use. A majority of this court now affirms on the opinion at the Appellate Division.

Petitioner has not attacked the validity of the zoning ordinance — only its application. In enacting its ordinance in 1968, the Town of Porter specifically sought to and did exclude industrial activity from its agricultural, residential and environmental zones. The particular nature of the petitioner’s business, the nature of the fluid to flow through the pipeline in relation to that business and its deleterious effect upon residential and agricultural uses of the land, mandate that the order of the Appellate Division be reversed.

Petitioner’s business is to treat, store and dispose of hazardous industrial solid and liquid wastes. The proposed pipeline will form an integral part of that disposal process and is to be used only for industrial purposes. That no treatment of wastes takes place within the pipeline does not mean that use of the pipeline is not part of the industrial process. Indeed, the conclusion that the pipeline is not an industrial activity because it is simply a vehicle for transporting material after completion of the treatment process presents a nearsighted view of this unique situation. The waste treatment and its disposal are integrated parts of a single process which is not complete until the waste is actually dumped.

It is of consuming interest to note that this court has held that an access road or driveway over and on a residential lot for access to a commercial parking garage on an adjacent business lot was actually a part and parcel of the business of garaging vehicles, the use of which could be enjoined as nonresidential (City of Yonkers v Rentways, Inc, 304 NY 499). This case closely parallels the present situation. Just as an access road leading to a commercial garage has been considered to be part of a business use, so too must a pipeline used exclusively as a conduit for effluent emanating from a waste treatment plant be considered an industrial use. Indeed, as then Judge Fuld wrote for an unanimous court: “The power to regulate Trades and industries’ obviously includes the power to regulate any part or portion of a trade or industry” (City of Yonkers v Rentways, Inc, 304 NY 499, 503).

That the pipeline itself is below the surface does not alter the use to which the land is being put. As part of the control process and in order to measure any adverse environmental impact emanating from undetected leakage petitioner will use monitoring wells, aboveground air relief valves and manholes, and will also patrol the line. This surface and under-surface use of land must be viewed as incompatible with the agricultural, residential and environmental reserve districts through which the five-mile line will pass. Finally, although the Department of Environmental Conservation concluded that the pipeline could be built, its final report listed as an unavoidable negative impact the potential development of undetected leaks which could mix with groundwater and soil and remain undetected until the-effluent surfaced. The pipeline’s metering system was designed to detect leakage above 14 gallons per minute, which would translate to undetected leakage of 840 gallons per hour or 20,160 gallons per day. It cannot be disputed that such activity would serve to hinder the development of the uses for which the agricultural, residential and environmental zones were properly designed.

Accordingly, and for all of the foregoing reasons, the order of the Appellate Division should be reversed.

Order affirmed, etc.


text:
    Shao Fen Chin, Appellant, v Basil Moumgis et al., Defendants, and Hsing Wu Lin et al., Respondents.
    Submitted February 9, 1981;
    decided February 12, 1981
   Motion to vacate the Court of Appeals order of dismissal dated November 25, 1980 denied. [See 51 NY2d 1008.]


text:
    General Instrument Corporation, Inc., Respondent, v Consolidated Edison Company of New York, Inc., Appellant.
    Submitted December 29, 1980;
    decided February 12, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from has been vacated.


text:
    In the Matter of Grand Central Building, Inc., Respondent, v Harry S. Tishelman, as Commissioner of Finance of the City of New York, Appellant.
    Submitted December 29, 1980;
    decided February 12, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Meyer taking no part.


text:
    In the Matter of Margaret Ann E., Petitioner, v Huban F., Respondent. Marvin I. Honig, as Rensselaer County Attorney, Appellant.
    Submitted February 2, 1981;
    decided February 12, 1981
   Motion to dismiss the appeal denied.


text:
    Marion C. Scully, as Executrix of Carl Martin, Deceased, Respondent, v Genesee Milk Producers’ Cooperative, Inc., et al., Appellants.
    Decided February 12, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    In the Matter of Salamon Unger, Respondent, v Daniel W. Joy, as Commissioner, New York City Department of Rent and Housing Maintenance, Rent Control Division, Appellant.
    Submitted January 5, 1981;
    decided February 12, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    The People of the State of New York, Respondent, v Gregory Glasper, Appellant.
    Argued January 5, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Charles F. Crimi for appellant.

      Lawrence T. Kurlander, District Attorney (Jeffrey Chamberlain of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Contrary to defendant’s contention, there was sufficient independent evidence to corroborate the testimony of the accomplice. Although corroborative evidence must be truly independent, and may not draw its probative value from the accomplice testimony (People v Hudson, 51 NY2d 233), it need not itself prove commission of the crime. Rather, it is sufficient if the corroborative evidence tends to connect the defendant to the crime so as to reasonably satisfy the jury that the accomplice is telling the truth (e.g., People v Cunningham, 48 NY2d 938, 940).

Here, the corroborative evidence independently established that the accomplice had participated in the criminal enterprise, and that defendant was in the company of the accomplice prior to and after the crimes occurred. In addition, a portion of a distinctive handkerchief worn by one of the perpetrators was found, partially burned, near a dumpster by defendant’s residence. Finally, defendant’s departure for Detroit and his statement that there was “some trouble,” if interpreted by the fact finder as flight and an admission of guilt, respectively (cf. People v Rumble, 45 NY2d 879, 880), would also constitute corroborative evidence. Cumulatively, these items of evidence were sufficient to satisfy the corroboration requirement (see, e.g., People v Hudson, supra; People v Cunningham, supra).

We have examined defendant’s remaining contentions and conclude that none warrants reversal.

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

Order affirmed in a memorandum.


text:
    In the Matter of Todem Homes, Inc., Appellant, v Board of Zoning Appeals of the Town of Southampton et al., Respondents.
    Argued January 15, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Israel G. Seeger for appellant.

      Richard E. De Petris for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 908).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse for reasons stated in the opinion by Mr. Justice William R. Geiler at Supreme Court, Suffolk County.


text:
    The People of the State of New York, Respondent, v Gary Dabney, Appellant.
    Submitted January 8, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Michael F. Schwartz for appellant.

      Eugene Gold, District Attorney (Marlene L. Malamy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

As the People candidly concede, it was error for the trial court to refuse to admit the redacted portion of the hospital record which indicated an absence of any scratches on complainant’s neck and to allow testimony by the Y.M.C.A. supervisor concerning defendant’s practice of karate. In this case in which the crucial issue at trial was the complainant’s lack of consent (see Penal Law, §§ 130.05, 130.35), the combined effect of these erroneous evidentiary determinations, when viewed in conjunction with the trial court’s minimal instruction to the jury as to the element of forcible compulsion, was highly prejudicial to the defendant. Based on the record before us, we can only conclude that there is a “significant probability * * * that the jury would have acquitted the defendant had it not been for the * * * errors which occurred.” (People v Crimmins, 36 NY2d 230, 242.)

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

Order reversed, etc.


author: Meyer, J.

text:
    The People of the State of New York, Appellant, v Anthony Holmes, Respondent.
    Argued December 17, 1980;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Peter Weinstein of counsel), for appellant.

      Diana Budzanoski and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We cannot say that, upon dismissing count one of the indictment for insufficiency of the evidence, the Appellate Division took inappropriate action in ordering a new trial on the remaining counts, which the trial court had charged the jury not to consider if they found the defendant guilty under the first count. A reduction to reflect a conviction for a lesser included offense is not mandated in such event. CPL 470.15 (subd2) provides in pertinent part that “ [t]he ways in which [an intermediate appellate court] may modify a judgment include, but are not limited to, the following: (a) Upon a determination that the trial evidence adduced in support of a verdict is not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted but is legally sufficient to establish his guilt of a lesser included offense, the court may modify the judgment by changing it to one of conviction for the lesser offense”. The use of the word “may” contained within this statute must be emphasized in examining the action taken below.

We note that we are not presented with a situation similar to that in People v Dlugash (41 NY2d 725), since the present, appeal did not involve the dismissal of a single-count indictment for which there could be no retrial (see People v Mayo, 48 NY2d 245) and, hence, we do not deal further with this issue.

Meyer, J.

(dissenting). The majority ignores the long-settled rules that whether legislation is permissive or mandatory is to be determined not only from the language of the statute, but also from the circumstances surrounding its passage and the object sought to be accomplished, and that permissive words conferring power and authority upon public officers or bodies will generally be held mandatory when the act authorized concerns either the public interest or the rights of individuals (People ex rel. Otsego County Bank v Board of Supervisors of Otsego County, 51 NY 401, 405; People ex rel. Conway v Board of Supervisors of Livingston County, 68 NY 114, 119; People ex rel. Reynolds v Common Council of City of Buffalo, 140 NY 300, 306; People ex rel. Doscher v Sisson, 222 NY 387, 395; Matter of Jordan v Smith, 137 Misc 341, 345, affd 254 NY 585; Treherne-Thomas v Treherne-Thomas, 267 App Div 509, 512).

While our jurisdiction is, with exceptions not applicable to this case, limited to questions of law, the Appellate Division is empowered to reverse or modify a criminal judgment “based upon a determination made * * * [ujpon the law * * * [ujpon the facts * * * or [a]s a matter of discretion in the interest of justice” (CPL 470.15, subd 3, pars [aj, [b], [c]). It is against this broad jurisdictional mandate and in light of the rules of construction set forth above as well as our prior pertinent decisions that the Legislature’s use of the word “may” in CPL 470.15 (subd 2, par [a]) must be construed. Considered against that background the latter provision does not authorize the ordering of a new trial “on the law” as was done here. I, therefore, respectfully dissent.

The CPL contemplates three situations in which determinations of legally insufficient evidence may be made by an intermediate appellate "court. The first is where the evidence is insufficient to establish guilt of an offense of which defendant was convicted as well as any lesser included offense (compare CPL 470.15, subd 2, par [a], and subd 4, par [bj). The second is where a lesser included offense, but not the offense of which defendant was convicted, is supported by legally sufficient, evidence (see CPL 470.15, subd 2, par [a]). The third is where an offense of which defendant was convicted is supported by legally sufficient evidence and another is not (see CPL 470.15, subd 2, par [bj). Appropriate action is authorized for each situation: in the first case, dismissal (see CPL 470.20, subd 2); in the second, reduction and affirmance (see CPL 470.20, subd 4); in the third, affirmance and dismissal (see CPL 470.20, subd 3).

The CPL also provides that “[ujpon reversing or modifying a judgment * * * of a criminal court, an intermediate appellate court must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect the rights of the respondent” (CPL 470.20). Thus, the statute recognizes that where an error or defect requires reversal of one offense of which defendant was convicted but does not require reversal of other offenses or preclude affirmance of lesser included offenses, there may nonetheless be reasons why an “injustice” would result if the alternate or lesser convictions were affirmed. The statute also recognizes that the People, as respondent, have rights which require protection whenever “necessary and appropriate” corrective action is ordered.

Here, there is no finding by the Appellate Division that any “injustice” would result from reduction and affirmance. Nor is there anything brought to our attention in the record to indicate the possibility of such “injustice” occurring. Indeed, to the extent any injustice has been done, it has been done to the People who have already proved, to a jury’s satisfaction, defendant’s guilt of robbery in the third degree, beyond a reasonable doubt, and who now have had such a jury finding dissolved without articulation of any reason for doing so.

This is not to say that the Appellate Division must in every case reduce and affirm where legally sufficient evidence supports conviction of a lesser included offense but not the actual offense of which defendant was convicted. It is to say that the intermediate appellate court may not “on the law,” as purportedly done here, choose dismissal over reduction and affirmance. Put another way, while dismissal may well be appropriate and necessary in a particular case, it will be so only in light of “injustice” that would otherwise be suffered by a defendant. In such a case, corrective action must be taken or directed “as a matter of discretion in the interest of justice,” not “on the law.” Considered in this light, the use of the word “may” in CPL 470.15 (subd 2, par [a]) does no more than concede that “justice” may in a particular case override reduction and affirmance.

The conclusion reached here is no different than was reached in People v Dlugash (41 NY2d 725), in which defendant was convicted after trial of a single count of intentional murder. On appeal to the Appellate Division, that conviction was reversed and the indictment dismissed. That court concluded that the evidence presented was legally insufficient to support either a conviction of intentional murder or the lesser included offense of attempted murder. On appeal to this court, we agreed with the Appellate Division’s conclusions with respect to intentional murder. We came to a contrary conclusion, however, as to the sufficiency of evidence to support a conviction of attempted murder. We held (at p 737): “The Appellate Division erred in not modifying the judgment to reflect the conviction for the lesser included offense of attempted murder. An attempt to commit a murder is a lesser included offense of murder (see CPL 1.20, subd 37) and the Appellate Division has the authority, where the trial evidence is not legally sufficient to establish the offense of which the defendant was convicted, to modify the judgment to one of conviction for a lesser included offense which is legally established by the evidence (CPL 470.15, subd 2, par [a]; 470.20, subd 4). Thus, the Appellate Division, by dismissing the indictment, failed to take the appropriate corrective action.” Accordingly, we remitted the case to the Appellate Division with the direction that the facts be reviewed and in the event they were found favorably to the People, that the Appellate Division, in turn, remand the case to the trial court for the imposition of sentence on the reduced and affirmed conviction of attempted murder (41 NY2d, at p 738).

Thus, Dlugash presents a clear illustration of the principle that in the absence of sufficient basis for the specific exercise of “fact” or “justice” jurisdiction, the Appellate Division is under a mandatory duty, pursuant to CPL 470.15 (subd 2, par [a]) to reduce and affirm a conviction where legally sufficient evidence fails to support an offense of which a defendant is convicted, but does support conviction of a lesser included offense.

The majority’s attempt to distinguish Dlugash on the ground that we here have a multiple-count indictment does not withstand analysis. The issue here, as in Dlugash, is what an intermediate appellate court must do with respect to a particular count upon which a defendant has been convicted where a lesser included offense of that count, but not the count itself, is supported by legally sufficient evidence., With respect to whether and under what circumstances the court must reduce and affirm that count or simply dismiss that count, the fact that there are other counts contained in the indictment is entirely irrelevant.

The order of the Appellate Division should be modified accordingly.

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

Order affirmed.

         Contrary to the analysis and suggestion articulated in the dissent (p 979), CPL 470.20 (subd 4) cannot be read to require a reduction and affirmance where there is legally sufficient evidence to support only a conviction for a lesser included offense. The statute provides that “[u]pon a modification of a judgment after trial which reduces a conviction of a crime to one for a lesser included offense, the court must remit the case to the criminal court with a direction that the latter sentence the defendant accordingly”. Rather than mandating specific corrective action, this statute merely sets forth the steps to be taken concerning the defendant’s sentence after the intermediate appellate court has in fact reduced the conviction to one for a lesser included offense. Obviously, this statute does not require a reduction by the intermediate appellate court. Nor do we read the order of the Appellate Division in this case, although recited to have been made “on the law”, as intended to reflect a holding that the court was required as a matter of law to grant a new trial or that the possibility of a reduction was not an alternative available to the court for adoption in its discretion.


text:
    David J. Angelone et al., Respondents, v City of Rochester, Appellant.
    Argued January 13, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Louis N. Kash, Corporation Counsel (Susan L. Hauser of counsel), for appellant.

      David J. Angelone, respondent pro se, and for Mary J. Angelone, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for reasons stated by Justice Richard J. Cardamone at the Appellate Division (72 AD2d 445).

We note, however, that we have no occasion to consider whether that portion of the city’s ordinance which establishes an equitable claim for a tax refund on behalf of all taxpayers within the city, considered separately, would constitute an unconstitutional gift (see NY Const, art VIII, § 1). Inasmuch as the local legislature obviously intended the ordinance to operate only as an integrated unit, we cannot say that the section which creates the equitable claims should be given effect notwithstanding the patent invalidity of the other sections of the ordinance (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 150).

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

Order affirmed, with costs, in a memorandum.


text:
    Helmsley-Spear, Inc., Appellant, v Frank Winter, Respondent, et al., Defendants.
    Argued January 14, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Arthur N. Lambert, William R. Mait and Michael Mail-let for appellant.

      Melvin Hirshowitz and Hyman Bravin for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (74 AD2d 195). Question certified answered in the affirmative.

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


text:
    Central Buffalo Project Corporation, Respondent, v City of Buffalo, Appellant, et al., Defendants.
    Argued January 13, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Joseph P. McNamara, Corporation Counsel (Stanley A. Moskal, Jr., of counsel), for appellant.

      Edwin H. Wolf for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Richard J. Cardamone at the Appellate Division (74 AD2d 336).

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


text:
    In the Matter of Ernest Persi, III, et al., Appellants, v Churchville-Chili Central School District, Respondent.
    Submitted January 14, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Joseph A. Regan for appellants.

      Ronald J. Summers for respondent.
   OPINION OF THE COURT

On petitioner infant’s appeal: Order affirmed, with costs. It was not an abuse of discretion as a matter of law for the Appellate Division to have denied the application for an extension of time in which to file a late notice of claim.

On petitioner father’s appeal: Appeal dismissed, without costs, upon the ground that the appeal does not lie because petitioner father failed to appeal to the intermediate appellate court from the denial of his application for an extension of time in which to file a late notice of claim (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 404-405).

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


text:
    The People of the State of New York, Appellant, v Ellen O’Meara, Respondent.
    Argued January 15, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Anthony J. Girese and William C. Donnino of counsel), for appellant.

      Ramsey Clark and David A. Englander for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division- should be affirmed.

We agree with that court, and for the reasons stated in its memorandum decision (70 AD2d 890), that the October 15,1976 amendment of the wiretap warrant to cover bribe-related conversations was not obtained “as soon as practicable” as required by the statute (CPL 700.65, subd 4). Accordingly, evidence seized pursuant to . that amendment was properly suppressed.

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

Order affirmed in a memorandum.


text:
    154 East Park Avenue Corp. et al., Appellants, v City of Long Beach et al., Respondents.
    Argued January 6, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Charles D. Maurer and Seymour M. Custen for appellants.

      Eli Kramer, Corporation Counsel (Samuel Ungar of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division appealed from, and prior order of the Appellate Division brought up for review, should be affirmed, with costs.

Although it is established on this record that the respondents’ revocation of the building permit was erroneous, the Appellate Division nonetheless was correct in rejecting plaintiffs’ claim for damages. The revocation was a discretionary act for which neither the municipality nor the building inspector will be held liable (Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831).

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

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


text:
    James Carter, on Behalf of Himself and All Others Similarly Situated, Appellant, v Frito-Lay, Inc., Respondent.
    Argued January 15, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Sol Lefkowitz and Jack Deitch for appellant.

      William J. Isaacson, William C. Zifchak and Jean D. Thompson for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (74 AD2d 550). Question certified answered in the affirmative.

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


text:
    Justina Kilcoin, Respondent, v Oleh M. Wolansky, Appellant.
    Argued January 14, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Bernard Kessler for appellant.

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

Memorandum.

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

Examination of the record discloses that, as the Appellate Division found, “the plaintiff has failed to carry her burden of laying bare sufficient evidence to demonstrate a triable issue of fact on the question of malice” (75 AD2d 1, 13). Moreover, the uncontroverted facts demonstrate that the acts of which plaintiff complains were well within the embrace of the defendant’s statutory obligation to see “that there is humane treatment of the patients at his facility and [to] investigate every case of alleged patient abuse or mistreatment” (Mental Hygiene Law, § 13.21, subd [b]). It therefore becomes unnecessary to decide whether the privilege that defendant enjoyed was a qualified or absolute one for, by either standard, plaintiff failed to set out a case. (See Stukuls v State of New York, 42 NY2d 272, 278-279; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56, 61.)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Martin Adelstein, as Secretary-Treasurer of Local 1034, International Brotherhood of Teamsters, Respondent, v Ortiz Funeral Home Corp., Appellant.
    Argued January 14, 1981;
    decided February 17, 1981

      APPEARANCES OF COUNSEL

      Robert J. Krengel, N. George Turchin and Morris Weiss-berg for appellant.

      Richard A. Weinmann for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 529).

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


text:
    Robert L. Andrew, Appellant, v John J. Roth, Jr., et al., Respondents.
    Submitted February 2, 1981;
    decided February 17, 1981
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance.


text:
    Robert W. Cronin et al., Appellants, v Charles E. Scott et al., Defendants, and J. Philip Zand, Respondent.
    Decided February 17, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Natalie D’Amico, as Administrator of the Estate of Stephen D’Amico, Deceased, Appellant, v Pennsylvania Millers Mutual Insurance Company, Respondent, and General Accident Fire & Life Assurance Corp., Ltd., Appellant.
    Argued January 6, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Melvin D. Freidel for Natalie D’Amico, as administrator of the estate of Stephen D’Amico, deceased, appellant.

      Kevin J. Murtagh and James M. O’Brien for General Accident Fire & Life Assurance Corp., Ltd., appellant.

      Louis J. Castellano, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to Pennsylvania Millers Mutual Insurance Company.

The homeowner’s policy issued by Pennsylvania Millers Mutual Insurance Company, by its express terms, would cover Dennis Traína as an insured only if he were a resident of his parents’ household. Since the only evidence submitted by the parties establishes that Dennis did not actually reside in his parents’ household at the relevant time, summary judgment was properly granted.

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

Order affirmed, etc.


text:
    In the Matter of the Board of Education, West Babylon Union Free School District, Appellant, v West Babylon Teachers Association, Respondent. (And Three Other Proceedings.)
    Argued January 7, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Arthur C. Briggs, III, for appellant.

      Jacob S. Feldman, James R. Sandner and David N. Stein for respondent.
   OPINION OF THE COURT

Memorandum.

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

The arbitration provisions of the parties’ collective bargaining agreement are sufficiently broad and unambiguous to encompass the instant grievances. In addition, such arbitration would violate no strong public policy of this State. In public sector labor arbitration, a stay is proper only where the disputed issue falls outside the contract’s arbitration provisions or where arbitration would violate public policy. It is for the arbitrator to interpret the substantive provisions of the contract (Board of Educ. v Barni, 49 NY 2d 311; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669). The arbitration here, therefore, should not have been stayed.

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

Order affirmed, with costs, in a memorandum.


text:
    Irene A. Swanson, Appellant, v Robert E. Swanson, Respondent.
    Argued January 13, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Gary N. Weintraub for appellant.

      Darrin Berger for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to Supreme Court, Suffolk County, for a hearing.

We agree with the Appellate Division that, on the record as it now stands, it was established that plaintiff was responsible for payment of the taxes at issue. However, since Supreme Court decided the. matter on a motion to dismiss, before plaintiff had an opportunity to put in her case, it was error to direct judgment for defendant. Plaintiff should be afforded an opportunity to present any proper proof that would contradict defendant’s case. Accordingly, the matter should be remitted for that purpose.

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

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


text:
    In the Matter of Emily Gross, as Trustee under the Last Will of Martin Escher, Deceased. New York State Department of Mental Hygiene et al., Appellants; Benedict Ginsberg, as Guardian ad Litem, et al., Respondents.
    Argued January 12, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Marie A. Beary,

      Shirley Adelson Siegel and Thomas P. Dorsey of counsel), for appellants.

      John B. Fitzpatrick for Barbara E. Glass, respondent.

      Benedict Ginsberg, pro se, and Philip A. Mittleman for Benedict Ginsberg, guardian ad litem, respondent.
   OPINION OF THE COURT

Memorandum.

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

It cannot be said that the trustee was required to invade the corpus of the trust to reimburse the Department of Mental Hygiene for costs incurred in caring for the life beneficiary. Both courts below found that testator’s intent, as expressed in the codicil establishing the trust in its current form, was that the corpus be invaded only for health-related emergencies and that routine expenses for care be paid out of the income. This was amply supported by the record. The trustee did not abuse her discretion as a matter of law.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Estate of Sylvester Lavigne, Deceased. Kenneth Lavigne, Petitioner; Lloyd Lavigne et al., Respondents; Janice La Plante, Appellant.
    Argued January 14, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Andrew M. Puritz for appellant.

      Richard V. Pregent and Lee H. Turner for respondents.
   OPINION OF THE COURT

Memorandum.

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

It cannot be said that the Appellate Division erred in finding that testator’s obliteration of his will was accompanied by the requisite intent to revoke (see Matter of Bonner, 17 NY2d 9). Such revocation by physical act of the testator revokes the will in its entirety, and therefore the will should not have been admitted to probate (EPTL 3-4.1, subd [a], par [2], subpar [A], cl [i]).

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

Order affirmed, with costs, in a memorandum.


text:
    American Home Assurance Company et al., Appellants, v Flushing Savings Bank et al., Defendants, and Sackman-Gilliland Corporation, Respondent. (And a Third-Party Action.)
    Argued January 5, 1981;
    decided February 19, 1981

      APPEARANCES OF COUNSEL

      Robert L. Laufer, Jay Greenfield and Stephen D. D. Hamilton for appellants.

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

Memorandum.

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

The court below was correct in determining that there is no justiciable dispute between plaintiffs and the Sackman-Gilliland Corporation (see Prashker v United States Guar. Co., 1 NY2d 584). The existence of such a dispute necessarily must await the resolution of the underlying issues involving plaintiffs’ possible liability. Moreover, plaintiffs have failed to show any wrongful acts on the part of Sackman.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of United Artists Theatre Circuit, Inc., et al., Appellants, v State Tax Commission, Respondent.
    Argued January 13, 1981;
    decided February 19, 1981
    APPEARANCES OF COUNSEL

      Leonard R. Rosenblatt and Robert S. Fink for appellants.

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

Memorandum.

The judgment of the Appellate Division should be reversed and the determinations of the State Tax Commission annulled.

In so deciding, essentially for reasons stated in Presiding Justice A. Franklin Mahoney’s dissenting opinion at the Appellate Division, we note that the statutory history to which that opinion refers illumines the nature of the changes effected in the then proposed section 1105 (subd [f], part [1]) of the Tax Law during its legislative course. The language of the bill as originally introduced would have excepted “motion picture admissions” from the applicable sales tax (emphasis added). However, before the proposal was enacted, the quoted phrase was altered by the substitution of the word theaters for admissions.

This deliberate change in phraseology militates against the idea that the use of the word admissions was merely a matter of semantic happenstance. Indeed, there is some evidence that before the change was effected the Legislature gave consideration to the possibility that the vitality of the moving picture theatre industry might be undermined if the exception were to be confined to exhibitions of conventional moving pictures alone. Logic therefore suggests that the change in language was intended to indicate that the determinative factor was not to be the event to which patrons gained admission, but the place where it was held. It follows that the commission’s construction — that the exclusionary clause applies only to moving pictures— runs counter to the indicia of legislative intent.

Judges Jones, Wachtler, Fuchsberg and Meyer concur; Chief Judge Cooke and Judges Jasen and Gabrielli dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (76 AD2d 995).

Judgment reversed, with costs, and the determinations of the State Tax Commission annulled in a memorandum.

       Since the disputed exhibitions in this case are closed circuit telecasts of boxing matches, we have no occasion, in this memorandum, to treat with other forms of entertainment.


text:
    In the Matter of the Claim of Diane L. Bares, Appellant. Philip Ross, as Industrial Commissioner of the State of New York, Respondent.
    Submitted February 2, 1981;
    decided February 19, 1981
   Motion for leave to appeal dismissed upon the ground that the supporting papers do not comply with section 500.9 (a) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.9 [a]) (see Community School Bd. Dist. 6, Manhattan v Anker, 49 NY2d 997; Dellaratta v International House of Pancakes, 46 NY2d 936; see, also, Reminder Notice to the Bar [April 29, 1980], 49 NY2d 998; Notice to the Bar [June 11, 1979], NYLJ, June 15, 1979, p 6, col 2).


text:
    The People of the State of New York, Respondent, v Michael Darden, Appellant.
    Submitted February 16, 1981;
    decided February 19, 1981
   Motion to dismiss the appeal taken by defendant Darden granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of his death. (People v McMahon, 47 NY2d 882; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770.)


text:
    Farm Stores, Inc., Respondent, v School Feeding Corp. et al., Appellants, et al., Defendants.
    Submitted February 9, 1981;
    decided February 19, 1981
   Motion to dismiss the appeal denied.


text:
    The People of the State of New York, Appellant, v Henrel Ingram, Respondent.
    Submitted January 12, 1981;
    decided February 19, 1981
   Motion to dismiss the appeal granted and the appeal dismissed for mootness.


text:
    Anna M. Pennisi, Appellant, v City of New York et al., Respondents, et al., Defendants.
    Submitted January 12, 1981;
    decided February 19, 1981
   Motion to dismiss the appeal denied.


text:
    In the Matter of Deborah Stokes. Joan Stokes, Appellant; Stanley Brezenoff, as Commissioner of the New York City Department of Social Services, Appellant; Jose Ruiz et al., Intervenors-Respondents.
    Submitted February 17, 1981,
    decided February 20, 1981
   On the court’s own motion, appeals dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601, subd [a], par [i]). Motions for a stay and for a preference dismissed as academic. Any motion for leave to appeal shall, pursuant to CPLR 5514 (subd [a]), be made on or before March 2, 1981 only to this court, by notice of motion with supporting papers required under rule 500.9 (a) (22 NYCRR 500.9 [a]).


text:
    In the Matter of Patricia Cooley, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted February 16, 1981;
    decided February 20, 1981
   (A) Motion to dismiss the requested review, etc., denied unless petitioner fails to serve and file on or before March 12, 1981 a record which complies with rule 530.2 (22 NYCRR 530.2). In the event the record for review is not served and filed on or before March 12, 1981, the clerk is directed to enter an order dismissing the requested review, without costs, and removing petitioner from her office of Justice of the Village Court of the Village of Alexandria Bay. (B) Cross motion to exclude material from the record on review denied.


text:
    In the Matter of Arthur F. Gunn, Appellant, v Benjamin Ward, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted January 16, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Charles H. Solomon for appellant.

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

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 856).

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


text:
    The People of the State of New York, Respondent, v Larry Tillman, Appellant.
    Argued January 16, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Earle E. Thurston for appellant.

      Ross M. Tisci, District Attorney (Naomi M. Werne of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is undisputed that defendant was represented by counsel at the time he was questioned by the police and the police were aware of such representation. Hence, defendant could not waive counsel except in counsel’s presence. (People v Skinner, 52 NY2d 24.) From the record before us, it cannot be concluded that a valid waiver which contemplated questioning in the absence of counsel took place when defendant and his attorney consented to the polygraph examination. This being so, the statements elicited from defendant in the absence of counsel by Investigator Brandstetter and Sergeant Wood immediately prior to the anticipated administration of the polygraph examination should have been suppressed.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Edward Thill, Respondent.
    Argued February 9, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Lawrence T. Kurlander, District Attorney (David L. Pogue of counsel), for appellant.

      Mark J. Mahoney for respondent.
   OPINION OF THE COURT

Memorandum.

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

By pleading guilty, defendant waived his statutory right to assert that he was entitled to dismissal because the People were not ready for trial within the time required by CPL 30.30. (See People v Clary, 52 NY2d 1023 [decided herewith] ; People v Friscia, 51 NY2d 845.) He cannot, therefore, test the validity of that claim on appeal.

We reject defendant’s argument that the due process clauses of the Federal and State Constitutions require a contrary conclusion.

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

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


text:
    Anthony Watson et al., Appellants, v State of New York, Respondent.
    (Claim No. 59054.)
    Argued January 16, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Howard Karger for appellants.

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

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 871).

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


text:
    The People of the State of New York, Appellant, v Dennis Clary, Respondent.
    Argued January 7, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Lawrence T. Kurlander, District Attorney (David, Pogue and Irene K. Dymkar of counsel), for appellant.

      Edward J. Nowak, Public Defender, for respondent.
   OPINION OF THE COURT

Memorandum.

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

By his plea of guilty, defendant waived any right to a dismissal resulting from the alleged failure of the People to be ready for trial in conformity with the time limitations of CPL 30.30 (subd 1, par [a]) (People v Friscia, 51 NY2d 845; see People v Brothers, 50 NY2d 413; cf. People v Adams, 38 NY2d 605).

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

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


text:
    The People of the State of New York, Respondent, v William McQueen, Appellant.
    Argued January 16, 1981;
    decided February 24, 1981
    APPEARANCES OF COUNSEL

      Bonnie H. Stein and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, having been advised by counsel, and after thorough and appropriate inquiry by, the court to ascertain that his waiver of his right to a jury trial was knowingly and voluntarily made, elected to proceed without a jury and executed a waiver of that right.

The prosecutor, expecting to proceed with the voir dire, had excused the complaining witness and, therefore, the case was adjourned to the next day. On the next day, however, defense counsel advised the court that the defendant had changed his mind and without giving any other reason requested that the waiver be vacated. The court refused his request and under these circumstances, we cannot say as a matter of law that the court abused its discretion.

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

Order affirmed in a memorandum.


text:
    J. Beres & Sons Dairy, Inc., Appellant, v J. Roger Barber, as Commissioner of the New York State Department of Agriculture and Markets, Respondent.
    Argued January 16, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      James J. Michalek for appellant.

      Larry A. Swartz, Thomas G. Conway and Joan A. Kehoe for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 930).

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


text:
    The People of the State of New York, Respondent, v Albert Jackson, Appellant.

      Argued January 16, 1981;
    decided February 24, 1981

      APPEARANCES OF COUNSEL

      Brent K. Olsson and William E. Hellerstein for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the memorandum at the Appellate Division. In light of appellant’s emphasis on his trial attorney’s introduction of evidence relating to a photograph array in which defendant’s picture was not included and the Appellate Division’s notation of, but failure to comment upon, that fact, we add that in the dilemma trial counsel faced, defendant’s alibi defense being tainted by the fact that one of his alibi witnesses had originally accused defendant of committing the crime, counsel’s decision to risk use of the photo array evidence was at most a mistaken judgment as to trial strategy and cannot be characterized as ineffective assistance of counsel (compare People v Bell, 48 NY2d 933, 935; People v Aiken, 45 NY2d 394).

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

Order affirmed in a memorandum.


text:
    In the Matter of Lorraine Hanley, as Deputy Commissioner of the Oneida County Department of Social Services, Appellant, v Edward Jackson, Respondent.
    Argued January 16, 1981;
    decided February 24, 1981
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601, subd [a], par [i]).


text:
    American Home Assurance Company, Respondent, v Diamond Tours & Travel, Inc., et al., Appellants.
    Decided February 24, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    Joshua A. Becker, M.D., & Associates, P. C., Appellant, v State of New York, Respondent.
    (Claim No. 60434.)
    Submitted January 26, 1981;
    decided February 24, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Jones taking no part.


text:
    Checkrite Petroleum, Inc., Appellant, v Amoco Oil Company, Respondent.

      Submitted February 9, 1981;
    decided February 24, 1981
   Motion to dismiss the appeal denied.


text:
    Nina Chin, Appellant, v New York City Department of Housing, Preservation and Development et al., Respondents.
    Submitted January 19, 1981;
    decided February 24, 1981
   Motion for an order “granting leave to renew upon new authorities”, considered as a motion to vacate this court’s sua sponte order of dismissal dated December 18, 1980, denied. [See 52 NY2d 827.]


text:
    In the Matter of the Arbitration between Litchfield Fabrics, Inc., Respondent, and Rosewood Fabrics, Inc., Appellant.
    Submitted January 26, 1981;
    decided February 24, 1981
   Motion to dismiss the appeal denied.


text:
    In the Matter of the Society for Ethical Culture in the City of New York, Appellant, v Beverly M. Spatt et al., Constituting the Landmarks Preservation Commission, et al., Respondents.
    Submitted January 26, 1981;
    decided February 24, 1981
   Motion by 46 society members for reargument, etc., dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the movants have no standing to seek that relief. [See 51 NY2d 449.]


text:
    In the Matter of the Arbitration between New York City Transit Authority, Appellant, and Louis Thom et al., Respondents.
    Argued February 12, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Steve S. Efron, Helen R. Cassidy and John A. Murray for appellant.

      George Schlossman for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the court below that the New York City-Transit Authority does not qualify as a political subdivision of the State for purposes of the exception found in subdivision 1 of section 370 of the Vehicle and Traffic Law for “motor vehicles * * * owned and operated by a municipality”. In regard to the Transit Authority’s remaining contention, we have held that section 370 of the Vehicle and Traffic Law does not exclude self-insurers from the requirements of providing uninsured motorist coverage. (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818.)

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

Order affirmed.


text:
    In the Matter of the Arbitration between Susquehanna Valley Teachers Association, Respondent, and Board of Education of the Susquehanna Valley Central School District, Appellant.
    Argued February 13, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Frank C. Shaw for appellant.

      Charles O. Ingraham and Paul E. Klein for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice J. Clarence Herlihy at the Appellate Division (75 AD2d 140).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fúchsberg and Meyer. Judge Jasen concurs on constraint of Matter of City School Dist. of City of Poughkeepsie (Poughkeepsie Public School Teachers Assn.) (35 NY2d 599).


text:
    Marilyn M. Clurman, Respondent, v Richard M. Clurman, Appellant.
    Submitted February 17, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Julia Perles, William F. Reilly and Patricia Ferrari for appellant.

      Samuel M. Sprafkin and David C. Sprafkin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as is appealed from, should be reversed, with costs, and the cross motion to compel arbitration granted.

We agree with the courts below that by participating in the action defendant waived his right to demand arbitration as to amounts owing under paragraph 4 (b) of the agreement for the years 1973-1976. (See De Sapio v Kohlmeyer, 35 NY2d 402; Denihan v Denihan, 34 NY2d 307; 8 Weinstein-Korn-Miller, NY Civ Prac, pars 7503.15, 7503.16; see, generally, Defendant’s Participation in Action as Waiver of Right to Arbitration of Dispute Involved Therein, Ann., 98 ALR3d 767.)

Contrary to the view expressed by the Appellate Division, however, the complaint was never formally supplemented by plaintiff to include amounts sought subsequent to 1976. (See CPLR 3025, subd [b]; Siegel, New York Practice, § 237.) That being so, there was no basis in the record upon which to conclude that defendant waived his contractual right to arbitrate claims relating to amounts owing under paragraph 4 (b) of the agreement for the years 1977-1978. (Cf. Denihan v Denihan, supra.) Thus, when plaintiff moved for summary judgment for amounts owing for these years and defendant promptly demanded arbitration on the ground that these claims were beyond the scope of the complaint, Special Term correctly directed the parties to proceed to arbitration in accordance with their agreement.

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

Order, insofar as appealed from, reversed, etc.


text:
    In the Matter of United Liverpool Faculty Association, Respondent, v Board of Education of the Liverpool Central School District, Appellant. (And Another Proceeding.)
    Argued January 7, 1981;
    decided February 26, 1981

      APPEARANCES OF COUNSEL

      Marc H. Reitz for appellant.

      Gerald John De Wolf, Bernard F. Ashe and Rocco A. Solimando for respondents.
   OPINION OF THE COURT

Memorandum.

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

Although the arbitrator’s interpretation of the provisions in the collective bargaining agreement governing teacher evaluations limited the power of the district superintendent to exercise discretion in making tenure recommendations to the school board, it did not in any way impair the authority of the school board to make the ultimate decision to grant or withhold tenure. Thus, the decision of the arbitrator cannot be considered violative of the public policies expressed in the Education Law (Education Law, §§ 2509, 2573, 3012, 6212; see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777; cf. Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266). Moreover, the arbitration award itself is not offensive to any public policies because the arbitrator refrained from interfering with the school board’s ultimate tenure determination and limited the award to a simple direction requiring the district to retain the grievant teacher on probationary status for an additional year so that her performance could be evaluated in accordance with the procedures outlined in the collective bargaining agreement (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167).

Finally, we reject the efforts of the school board to utilize the present proceeding to confirm or vacate the award as a vehicle for challenging the arbitrability of the underlying grievance. The provisions of CPLR 7511 simply do not permit a party who has participated in the arbitration to raise the question of arbitrability as a ground for vacating the award (compare CPLR 7511, subd [b], par 1, with CPLR 7511, subd [b], par 2; see Matter of Board of Higher Educ. [Brown], 49 NY2d 935, 936).

Meyer, J.

(concurring). The majority concludes that the collective bargaining provision in question on this appeal relates to substance rather than procedure but is nonetheless not in contravention of public policy because the discretion it controls is not that of the board of education but of the district superintendent. I agree that there should be an affirmance but only because the rule of Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774) and Matter of Candor Cent. School Dist. (Candor Teachers Assn.) (42 NY2d 266), upon which the majority relies, does not apply to a building principal and the arbitrator found that the building principal’s violation of the agreement was sufficient, by itself, to warrant the award made. Had the only violation been that relating to the district superintendent I would vote to reverse, for in my view the rule of the Cohoes and Candor cases proscribes substantive (as distinct from procedural) control of the discretion of the person or body, be it district superintendent or board of education, which is invested with the ultimate tenure decision. As the majority concedes, “the arbitrator’s interpretation of the provisions in the collective bargaining agreement governing teacher evaluations limited the power of the district superintendent to exercise discretion in making tenure recommendations”. Thus, if only the superintendent’s recommendation were involved in this proceeding, there would have to be a reversal.

Analysis of the governing statutes establishes, as is spelled out in detail below, (1) that with respect to termination of employment during an employee’s probationary period, ultimate discretion is uniformly in the school board, (2) that the decision to terminate employment at the end of the probationary period can only be made by the district superintendent, and (3) that as to a grant of tenure, the ultimate authority is in the board of education in districts governed by section 2509 of the Education Law, but in all other districts is in the district superintendent.

The relevant provisions of the Education Law are (or were) contained in sections 2509, 2573, 3012, 3013, 3014, 3031 and 6212. As to termination of school district employees during the probationary period, each provision contains a sentence stating that “The service of a person appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education” or words of essentially identical import. Though section 6212, which deals with the City University of New York, does not contain such language, the result is the same for it relates tenure to reappointment for a sixth year after having been appointed for five full years continuously, and section 6206 vests ultimate power of appointment in the university’s board of trustees.

That the district superintendent’s recommendation at the end of the probationary period to deny tenure is binding upon the board of education is, however, clear from Matter of Anderson v Board of Educ. (38 NY2d 897). We there held that, in light of the statement in subdivision (c) of section 3031 that that section did not change existing law concerning appointments on tenure, the power given the board by subdivision (b) of that section to review a denial recommendation could not be construed as a power to reject the recommendation.

To ascertain in whom resides ultimate power with respect to the grant of tenure, one must examine sections 2509, 2573, 3012, 3013, 3014 and 3031 as to school districts and section 6212 as to the City University. Upon such review it becomes apparent that, rather than section 2573 (subd 6) being, as the footnote to the majority opinion suggests, the sole provision mandating that the board act to implement the superintendent’s recommendation, section 2509 is one of the few provisions of the Education Law which invests the board of education rather than the district superintendent with discretion as to the granting of tenure.

Subdivision 2 of section 25 0 9 5and subdivision 2 of section 3013 both provide that the superintendent report for appointment on tenure those persons found competent, efficient and satisfactory and that “By a majority vote the board of education may then appoint on tenure any or all of the persons recommended by the superintendent of schools.” In the districts governed by those provisions, the board, therefore, has the ultimate power.

Subdivision 6 of section 2573, on the other hand, clearly mandates that the “board of education shall immediately thereafter [after receiving the superintendent’s recommendations for permanent appointment] issue to such persons permanent certificates of appointment”, and in Matter of Caraballo v Community School Bd. Dist. 3 (49 NY2d 488) we held that a board governed by that provision could not refuse to certify a person recommended by the superintendent.

Though not couched in such imperative language, the remaining provisions make clear that it is the recommendation of the superintendent rather than any act of the board which confers tenure. Thus, subdivisions 3 and 4 of section 2573, relating to city school districts, section 3012, governing school districts other than city school districts, and section 3014, covering boards of co-operative educational services, after providing for a recommendation by the superintendent each state that persons so recommended may only be removed for cause. The one important difference between sections 3012 and 3014 on the one hand and section 2573 (subds 3, 4) on the other is that the two former sections both state that a probationer “may be discontinued at any time during the probationary period, upon the recommendation of the superintendent of schools [district superintendent] by a majority vote of the board”. The inescapable inference is, therefore, that the board may reject a recommendation to dismiss a probationary employee, but may not reject a recommendation to grant tenure.

Finally, as to school districts it must be noted that subdivision (b) of section 3031 provides in its first sentence that: “Where a board of education, trustees of a common school district, or board of cooperative educational services votes to reject the recommendation of a superintendent of schools, district superintendent or district principal to grant tenure to any teacher employed on probation, such vote shall be considered advisory and at least thirty days prior to the board meeting at which such recommendation is to be finally considered, the board shall notify said teacher of its intention to deny tenure and the date of the board meeting at which it will take final action.” While that sentence clearly contemplates a board vote rejecting a recommendation that tenure be granted, it characterizes the vote as “advisory”. Furthermore, subdivision (c) of section 3031 makes clear that the section does not change the law pre-existing its enactment in 1972 (see Matter of Caraballo, supra) and all of the sections analyzed above were enacted prior to 1972.

To complete the picture it is only necessary to recall that, as already noted, section 6212 (formerly § 6206) governing the City University of New York, provides with exceptions not here relevant, that tenure is automatic after service for more than five years, and that appointment is the province of the board.

Discernible from the foregoing somewhat detailed review is it that the ultimate power as to denial of tenure in all districts and as to the grant of tenure in all districts except those governed by section 2509 and former section 3013 resides in the superintendent rather than the school board. Because that is so and because the collective bargaining provision relating to the Liverpool Central School District superintendent is substantive rather than procedural, I cannot accept the majority’s reasoning, although for the reason above noted I agree with its result.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur; Judge Meyer concurs in result in a concurring opinion in which Judges Jasen and Jones concur.

Order affirmed, with costs, in a memorandum.

       We note that a different conclusion might well result if the dispute in the instant case had arisen in a city having a population of 400,000 or more, since, in such cities, the tenure recommendation of the district superintendent is binding upon the board of education (Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; Education Law, § 2573, subd 6).

      . (§2509, subd [1], par [a]; § 2573, subd 1, par [a]; see, also, subd 4; § 3012, subd 1, pars [a], [b] ; § 3013, subd 1, now repealed but continued as to persons appointed under § 3013 by § 3012, subd 1, par [c] ; § 3014, subd 1.)

      . Subdivision (a) of section 3031, applicable to school boards except in cities of 1,000,000 or more population, establishes procedures concerning employees whose services are recommended to be discontinued, but subdivision (c) of the same section explicitly states that the section is not to be construed as modifying existing law with respect to discontinuance of the services of teachers.

      . As Justice Frank A. Gulotta, writing for the Appellate Division and on whose reasoning, essentially, we affirmed, put it (46 AD2d 360, 363), under prior law “while a board of education could, in the face of a positive recommendation by its superintendent of schools, deny tenure to a probationary teacher, it could not, in the absence of such recommendation, bestow it.”

      . Applicable to districts in cities with less than 125,000 inhabitants. The district involved in Cohoes (supra) was governed by section 2509.

      . Repealed in 1978 but still applicable to persons appointed under its provisions, the section governed school districts employing eight or more teachers, other than city school districts and school districts having a population of 4,500 or more and employing a superintendent of schools. The district involved in Candor (supra) was governed by section 3013.

      . Applicable to cities having a population of 400,000 or more.


text:
    Charlotte M. Hamill, Appellant, v City of New York, Respondent.
    Decided February 26, 1981

      APPEARANCES OF COUNSEL

      Siff & Newman, P. C., for appellant.

      Allen G. Schwartz, Corporation Counsel (JoanE. Handler of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs. The Appellate Division correctly concluded that there was insufficient evidence of negligence to present a jury question, as a matter of law.

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