text:
    In the Matter of Glenwood TV, Inc., Appellant, v Bruce C. Ratner, as Commissioner of the Department of Consumer Affairs of the City of New York, Respondent. (Action No. 1.) In the Matter of Charles TV, Inc., Appellant, v Bruce C. Ratner, as Commissioner of the Department of Consumer Affairs of the City of New York, Respondent. (Action No. 2.)
    Argued April 25, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Ronald M. Kleinberg, Laurel J. Weinberg and Richard A. Finkel for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (David Drueding, Leonard Koerner and Judith Levitt of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in so much of the opinion by former Justice Vito J. Titone at the Appellate Division as deals with the constitutional issue (103 AD2d 322).

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of George Henry et al., Appellants, v Ruth A. H. Boyd et al., Respondents.
    Argued April 26, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Dana Ragsdale and Patrick J. Cooney for appellants.

      Thomas H. Parmele for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice Emmett J. Schnepp at the Appellate Division (99 AD2d 382).

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


text:
    Interested Underwriters at Lloyds, as Assignee of Fur Galleria, Inc., Respondent, v Ducor’s, Inc., et al., Appellants.
    Argued April 30, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Joanne Venino, James J. Taylor and Stephen M. Marcusa for appellants.

      David M. Ginsberg and Paul Kovner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (103 AD2d 76). Question certified answered in the affirmative.

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


text:
    In the Matter of Thomas H. Jones, Appellant, v Karen A. Jones, Respondent.
    Argued April 22, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Robert H. Bailan for appellant.

      Robert P. Nydam for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division’s determination that no compelling reason for change of the original custody arrangement had been shown more nearly comports with the weight of the evidence than does the contrary determination of the Family Judge. In this setting there is no abuse of discretion.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of August Rickey, Respondent, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued April 26, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Clifford A. Royael, Robert Hermann and Peter H. Schiff of counsel), for appellants.

      Rene H. Reixach and Mark H. Wattenberg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (102 AD2d 977).

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


text:
    In the Matter of Lumbermen’s Underwriting Alliance, Appellant, v James P. Corcoran, as Superintendent of Insurance, Respondent.
    Argued April 29, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Edward L. Bookstein, Ronald A. Blake and Charles T. Houston for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll, Robert Hermann and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 947).

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


text:
    In the Matter of Albert Baird, Doing Business as Baird Nursing Home, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Argued April 23, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Cornelius D. Murray for appellant.

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

Judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (102 AD2d 972).

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


text:
    In the Matter of City of New York, Appellant, v New York State Board of Equalization and Assessment, Respondent, and Donald N. David et al., Intervenors-Respondents.
    Argued April 25, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Reed G. Schneider, Gary Schuller and Joseph I. Lauer of counsel), for appellant.

      William E. Banfield for Donald N. David, intervenor-respondent.

      Mark S. Tulis, intervenor-respondent pro se.

      Eugene J. Morris, intervenor-respondent pro se.

   OPINION OF THE COURT

Order reversed, with costs, and matter remitted to Supreme Court, Albany County, with directions to remit to the Board for determination of whether the S/I notations are statutorily exempt from disclosure for the reasons stated in the dissenting memorandum of Justice Howard A. Levine at the Appellate Division (102 AD2d 987, 987-989).

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


text:
    In the Matter of Steven Owen, Respondent, v George W. Stroebel, Jr., as Schenectady County Court Judge, Respondent, and John B. Poersch, as Schenectady County District Attorney, Appellant.
    Argued April 22, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      John B. Poersch, District Attorney (Thomas W. Hefferon of counsel), appellant pro se.

      E. Stewart Jones, Jr., and Robert M. Cohen for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, and the petition dismissed.

Petitioner was brought to trial on homicide and assault charges stemming from an automobile accident in which a passenger in the car was killed. The essential question at trial was whether petitioner or the third occupant of the car, Michael Dougherty, was the driver. Testifying for the prosecution, Dougherty claimed that petitioner was driving; testifying for the defense, petitioner’s sister claimed that she saw petitioner in the passenger seat when the car left home. Each side supported its position with additional evidence, including the testimony of accident reconstruction experts. Though the trial was conducted over a period of 10 days, the parties disagree as to the time actually spent on the presentation of evidence. The transcript, including a Sandoval hearing, preliminary instructions, openings, summations, the charge, supplemental instructions, and exchanges with the jury, consumed approximately 1,200 pages.

The jury commenced deliberations at 3:00 p.m. on October 30, 1981. Two hours later, the jurors informed the court that they could not agree. The court then gave an AZZera-type charge (Allen v United States, 164 US 492; 1 CJI [NY] 42.60), reminding the jurors of their oaths and instructing them to make every effort to resolve their differences and arrive at a verdict, and deliberations resumed. Over the next several hours, the jury requested a reading of portions of the testimony, asked questions which were answered by the court, and took a dinner break. At 10:30 p.m., the court declared a recess and sequestered the jury overnight. Deliberations resumed the next morning at 9:30 a.m., interrupted twice for further instructions requested by the jury. At 11:20 a.m., the jury again announced its inability to come to a conclusion. Addressing the jurors, the court asked whether there was “any possibility” of reaching a verdict by further deliberations and review of the evidence. One juror responded, “I don’t think things can be reasoned out. It’s beyond reasoning.” Another juror said, “The same way we stood when we walked in at 4:00 o’clock. We stand that way. We have taken everything and dissected it.” Although the court did not question each juror, none expressed a contrary view. The court then declared a mistrial, stating: “Well, if you’re positive that there’s no possibility of reaching a verdict I’ll declare a mistrial. I’ll discharge the jury and replace the case on the ready calendar for retrial at the earliest opportunity.”

When faced with a retrial, petitioner moved to dismiss the indictment on double jeopardy grounds, but the court denied the motion. Petitioner then commenced this article 78 proceeding in the Appellate Division to prohibit further prosecution. That court granted the petition, finding the trial court’s mistrial declaration after six hours of deliberation an abuse of discretion. We disagree.

As we recently stated, “The decision to declare a mistrial necessarily rests in the broad discretion of the Trial Judge * * * who is best situated to take all circumstances into account and determine whether a mistrial is in fact required in a particular case” (Matter of Plummer v Rothwax, 63 NY2d 243, 250). In Plummer, we found no abuse of discretion in the court’s discharge of a jury 6V2 hours after submission (4V2 hours of actual deliberation time), upon the jury’s first announcement of its inability to reach a verdict. We noted the impossibility of applying a mechanical formula and stressed the importance of considering all the circumstances.

Although the proceedings here lasted significantly longer than in Plummer, the number of hours of trial or deliberations cannot be viewed in isolation. Other circumstances support the Trial Judge’s action and preclude treating the mistrial declaration as an abuse of discretion as a matter of law. Resolution of the primary issue, the identity of the driver, in large measure turned on the jury’s evaluation of the credibility of the prosecution’s chief witness, a task not necessarily complex but one where “a jury could shortly become deadlocked” (Matter of Plummer v Rothwax, 63 NY2d 243, 251, supra). Further, when the jury first said it was deadlocked, the court refused to accept this conclusion and firmly lectured the jurors on the importance of reaching a verdict and reconciling differences if at all possible. The court declared a recess for the day, thereby allowing the jurors additional time to reflect on the evidence and approach deliberations with fresh perspective. When the jury expressed its irreconcilable disagreement for a second time, again the court asked the jury as a whole whether there was any possibility of rendering a verdict. Receiving an explicit negative response from two jurors, and not a word of disagreement from the others, the court was justified in concluding that unanimity was unlikely within a reasonable amount of time (CPL 310.60).

Accordingly, under all the circumstances, the court did not abuse its discretion in discharging the jury and setting the case down for a retrial.

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

Judgment reversed, without costs, and petition dismissed in a memorandum.


text:
    The People of the State of New York, Respondent, v Elizabeth Rivera, Appellant.
    Argued April 24, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Mark B. Harris for appellant.

      Charles J. Wilcox, District Attorney (Richard L. Nabozny of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division insofar as it deals with the defense of justification (101 AD2d 981).

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


text:
    The People of the State of New York, Respondent, v Adam S. Crapo, Appellant.
    Argued April 26, 1985;
    decided May 28, 1985

      APPEARANCES OF COUNSEL

      Samuel J. Castellino, Public Defender (M. Joseph Danaher of counsel), for appellant.

      James T. Hayden, District Attorney (James G. Levin, III, of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (103 AD2d 943).

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


text:
    Cheryl Barnes, Individually and as the Mother and Natural Guardian of Shawn Barnes, an Infant, and as Administratrix of the Estate of Heather Barnes, Deceased, Respondent, v County of Onondaga et al., Appellants, et al., Defendants.
    Argued April 24, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Samuel M. Vulcano and Victor Hershdorfer for appellants.

      James G. DiStefano for respondent.
   OPINION OF THE COURT

Memorandum.

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

McCarthy v Volkswagen of Am. (55 NY2d 543, 548-549) held that the insanity toll of CPLR 208 was “meant to extend * * * to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society”, not “a mere post traumatic neurosis.” In the present case the testimony of Dr. Goldfarb was that what plaintiff suffered was a mental condition “more serious than a neurosis.” He characterized her condition as “a major depressive disorder” and “a very severe depressive reaction” as a result of which “she did not have an over-all ability to function and * * * did not know what to do.” That testimony, moreover, was uncontradicted by any medical testimony. We conclude that the weight of the evidence more nearly comports with the Appellate Division’s determination that plaintiff was unable to protect her legal rights because of her over-all inability to function. She was, therefore, within the meaning of General Municipal Law § 50-e (5) and CPLR 208, as construed in the McCarthy case, properly authorized to file a late notice of claim.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Joseph M. Albright, Jr., Appellant.
    Argued April 25, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Arnold D. Roseman for appellant.

      Howard M. Aison, District Attorney (James E. Conboy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Tried for bribery, conspiracy and criminal facilitation, defendant, through his own testimony and the testimony of coemployees with whom he discussed his plan, defended on the ground that he intended only to catch and report to the proper authorities the public official he was accused of bribing for that official’s improper solicitation of a bribe. The Trial Judge charged, without objection from the People, that the jury must determine whether defendant intended to commit the crime charged, but also charged with respect to each count of the indictment (and later reread to the jury in response to a request by it), that defendant “urges the affirmative defense of entrapment”, as to which defendant rather than the People bore the burden of proof, though only by a fair preponderance of the evidence. Both defendant and the People excepted to the charge on entrapment.

Defendant conceded that he engaged in the transaction charged, but only as a means of catching a public official in an illegal act. His defense, therefore, was not entrapment but lack of criminal intent. By charging entrapment, the Trial Judge shifted the burden of proof of criminal intent from the People to defendant (see, People v Martin, 66 AD2d 995). There must, therefore, be a reversal and a new trial.

In view of that conclusion it is unnecessary to discuss the other issues raised by defendant, except to note that the prosecutor should not have been allowed, without first establishing a good-faith basis for doing so, to question defendant concerning his relationship with Veneroso and Gowdie.

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

Order reversed, etc.


text:
    John Dougal et al., Respondents, v County of Suffolk et al., Appellants.
    Argued May 2, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Martin Bradley Ashare, County Attorney (Marion T. McNulty of counsel), for County of Suffolk and others, appellants.

      Guy W. Germano, Town Attorney (Lawrence Donohue of counsel), for Town of Islip and others, appellants.

      Joshua L. Dratel and Gerald B. Lefcourt for respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr and Fay Leoussis of counsel), for City of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by former Justice Vito J. Titone at the Appellate Division (102 AD2d 531).

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


text:
    Marguerite Gless et al., Respondents, v City of New York et al., Appellants.
    Argued May 2, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dody Schorr and Fay Leoussis of counsel), for appellants.

      Joshua L. Dratel and Gerald B. Lefcourt for respondents.
   OPINION OF THE COURT

Order affirmed, with costs (see, Dougal v County of Suffolk, 65 NY2d 668, decided herewith).

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


text:
    In the Matter of Mary Klapak, Respondent, v Barbara B. Blum, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent. (And a Second Proceeding.)
    Argued April 24, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Eugene E. Zegarowicz, Maryellen Weinberg and O. Peter Sherwood of counsel), for appellant.

      Mindy S. Fridovich and Leonard S. Clark for Mary Klapak, respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the. Appellate Division brought up for review affirmed, with costs. The issue argued on appeal, not having been considered by the administrative agency in making its determination, may not be reviewed by this court (Matter of Barry v O’Connell, 303 NY 46).

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


text:
    County of Nassau, Appellant, v Adjunct Faculty Association of Nassau Community College, Respondent, et al., Defendants.
    Argued April 26, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for appellant.

      Joseph Famighetti and Anthony W. Cornachio for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 924). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Daniel Leone, Appellant.
    Argued April 30, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Janet Cunard for appellant.

      Carl A. Vergari, District Attorney (Maryanne Luciano, Gerald D. Reilly and Joseph M. Latino of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (105 AD2d 757).

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


text:
    The People of the State of New York, Respondent, v Quenton Bratton, Appellant.
    Argued April 30, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Peter Paul Insero, Jr., and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Maryanne Luciano and Gerald D. Reilly of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (103 AD2d 368).

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


text:
    In the Matter of the Arbitration between the Town of Haverstraw, Respondent, and the Rockland County Patrolmen’s Benevolent Association, Appellant.
    Argued April 24, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Raymond G. Kruse for appellant.

      Arthur Moskoff for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Rockland County, reinstated.

Gary Vance, a member of the respondent town’s police department, sprained his right thumb while on duty, and claimed to be totally incapacitated thereby. Departmental rules provided that “When on sick leave a member shall not leave his place of confinement or his residence except by permission of the police surgeon or as required for medical aid or treatment.” For the week he was confined pursuant to this regulation, Vance was paid his regular salary but sought overtime compensation for all other hours he was restricted to his home. The arbitrator granted an award for the hours Vance was actually confined, up to normál hours for sleeping, concluding that confinement here was equal to call-back since Vance’s movements were under the total control of the town. On the town’s application pursuant to CPLR 7511, Supreme Court refused to vacate this award, but the Appellate Division modified on the law, on the grounds that the award is not a rational determination and violates public policy in providing a gift of public money. We disagree.

An arbitrator “may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308). Moreover, public policy favors arbitration as a means of settling labor disputes (Matter of Associated Teachers v Board of Educ., 33 NY2d 229, 236). This court will intervene for reasons of public policy only where a policy “prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631).

Here, the arbitrator found Vance entitled to payment because the town’s exercise of control over his activities was equal to its power under the contract to call back the officers for duty outside of normal working hours. To vacate the award would engage the court in fact finding preliminary to the public policy determination, a course we have eschewed in matters concerning arbitration (Matter of Sprinzen [Nomberg] 46 NY2d 623, 631, supra). We need not, and do not, address the reasonableness of the confinement regulation in this proceeding to obtain overtime compensation.

Respondent’s remaining contentions are without merit.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Larry Benthall, Respondent.
    Argued April 26, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Ronald G. Blum and Robert M. Pitler of counsel), for appellant.

      Philip L. Tomich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The finding of the courts below that the statements in question were not sufficiently attenuated from the initial unlawful search has support in the record and thus presents a mixed question of law and fact beyond our review (see, People v Van Luven, 64 NY2d 625, 627). In addition, while the People contend that the police officers’ good faith should have been taken into account in determining the legality of this pr e-Payton search (Payton v New York, 445 US 573), there was no factual basis for such a conclusion.

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

Order affirmed in a memorandum.


text:
    New York Telephone Company et al., Appellants, et al., Plaintiff, v City of New York et al., Respondents. (And a Third-Party Action).
    Argued April 29, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Saul Scheier and Kevin M. Walsh for New York Telephone Company, appellant.

      Cynthia Boyer Okrent for Brooklyn Union Gas Company, appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for City of New York, respondent.

      Donald J. Carbone for Frank Mascali Construction Corp. and others, respondents, precluded.

      Jack Babchick for Andrews and Clark, respondent, precluded.

      Howard J. McGratty for Mason & Hanger-Silas Mason Co., Inc., respondent, precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice James F. Niehoff at the Appellate Division (95 AD2d 282). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Carlos Castro, Appellant.
    Argued May 1, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Judith Waksberg and William E. Hellerstein for appellant.

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

Order affirmed. We agree with the Appellate Division that there was no abuse of discretion in permitting the challenged testimony.

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


text:
    The People of the State of New York, Appellant, v Sylvester Pace and Gaetano Pace, Respondents.
    Argued April 25, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Michael J. Halberstam and Barbara D. Underwood of counsel), for appellant.

      Richard T. Farrell, Bernard Kenny and Barbara L. Hartung for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division’s factual finding does not preclude an appeal to this court (People v Albro, 52 NY2d 619, 624). The warrantless search of defendants’ automobile salvage yard was not undertaken for administrative purposes. Thus, New York City Charter § 436 is inapplicable, and the evidence obtained must be suppressed as acquired in violation of the constitutional proscription against unreasonable searches and seizures.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Plaintiff, v John McLoughlin, Also Known as Earl Randolph, Respondent. In the Matter of New York Times Company, Appellant; District Attorney, New York County, Respondent.
    Argued May 2, 1985;
    decided May 30, 1985

      APPEARANCES OF COUNSEL

      John G. Koeltl, James C. Goodale, John S. Kiernan, Susan D. Charkes, Katherine P. Darrow and George Freeman for appellant.

      H. Spencer Kupperman and Christopher K. Sowers for John McLoughlin, respondent.
   OPINION OF THE COURT

Appeal dismissed upon the ground that the order appealed from was entered in a criminal action with respect to a motion determined by the Criminal Court of the City of New York, a court of criminal jurisdiction, and is not an order appealable to the Court of Appeals under CPL 450.90 (compare, Matter of Hynes v Karassik, 47 NY2d 659, 661, n 1, dealing with a matter determined by Supreme Court, a court having both civil and criminal jurisdiction).

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


text:
    Laura B. Elliott, Respondent, v William J. Elliott, Appellant.
    Submitted April 15, 1985;
    decided May 30, 1985
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals § 40, at 161).


text:
    In the Matter of Charles J. Geier, Individually and as Administrator of the Estate of Joan Geier, Deceased, Respondent, v Frank P. DeLuca et al., Respondents, and Allen G. Zippen, Appellant.
    Submitted May 20, 1985;
    decided May 30, 1985
   Motion to vacate the Court of Appeals order of dismissal dated April 2, 1985 denied. [See, 64 NY2d 1040.]


text:
    In the Matter of Richard H. Green, Appellant, v Commissioner of Environmental Conservation of the State of New York, Respondent.
    Submitted April 15, 1985;
    decided May 30, 1985
   Motion for reconsideration of the Court of Appeals order of dismissal dated February 7,1985 dismissed as untimely (Rules of the Court of Appeals § 500.11 [g]; 22 NYCRR 500.11 [g]). [See, 64 NY2d 884.]


text:
    Birdell Hill et al., Respondents, v St. Clare’s Hospital et al., Appellants, et al., Defendants.
    Submitted May 13, 1985;
    decided May 30, 1985
   Motion by appellant St. Clare’s Hospital for leave to appeal granted.

Motion by appellant St. Clare’s Hospital for a stay denied, without prejudice to any rights it has under CPLR 5519 (a) (2).

Judge Alexander taking no part.


text:
    In the Matter of the Commitment of Guardianship and Custody of Ulysses S. T., Jr., Appellant. Monroe County Department of Social Services, Respondent.
    Submitted May 20, 1985;
    decided May 30, 1985
   Motion to dismiss appeal taken as of right denied.

Judge Simons taking no part.


text:
    Amanda Zeballos, Respondent, v Demetrio Zeballos, Appellant.
    Submitted April 15, 1985;
    decided May 30, 1985
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals § 36, at 144-147).

Judge Titone taking no part.


text:
    The People of the State of New York, Respondent, v Thomas King, Appellant.
    Argued April 26, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Karen Goldstein and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Kevin Lubin and Steven P. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant, approached by a police officer for a gambling violation, fled to a nearby store and refused to come out until the officer had pried the door open. The officer then frisked the defendant and found a loaded handgun. Under the circumstances we agree with the courts below that the frisk of the defendant did not violate his constitutional rights. Although the fact that a person has been stopped for a violation does not ordinarily justify a frisk (People v St. Clair, 54 NY2d 900), a limited pat down for concealed weapons was reasonable in light of the defendant’s uncooperative and suspicious conduct after he had been ordered to stop by the officer.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Cemmie Hartley, Jr., Appellant.
    Argued April 29, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Penelope D. Clute for appellant.

      Joseph W. Kelley, District Attorney (William E. Russell and John Gemelli of counsel), for respondent.

      Martin I. Rosenbaum, Edward H. Wassermann and Jonathan E. Gradess for New York State Defenders Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that he informed the police, during the questioning at which he had voluntarily appeared, that he had arranged for an appointment with an attorney, would have been insufficient as a matter of law to establish the indelible attachment of the right to counsel (People v Rowell, 59 NY2d 727; People v Johnson, 55 NY2d 931; compare, People v Skinner, 52 NY2d 24).

Accordingly, defendant was not entitled to have the court charge the jury that his right to counsel could have attached under these circumstances, even if he were not in custody.

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

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

Order affirmed in a memorandum.


text:
    In the Matter of James J. Viger, Appellant, v John A. Passidomo, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Argued April 30, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Robert M. Cohen and James T. Viger for appellant.

      Robert Abrams, Attorney-General (Lisa Margaret Smith, Robert Hermann, Peter H. Schiff and Wayne L. Benjamin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that there was substantial evidence to support the affirmative findings made pursuant to Vehicle and Traffic Law § 1194 (3) (a) following the license revocation hearing. The testimony of the police officer established that the officers had reasonable grounds to suspect that petitioner’s car was following their car too closely, in violation of Vehicle and Traffic Law § 1129 (a), and thus the stop of his car was justified (see, People v Ingle, 36 NY2d 413, 414). Petitioner’s subsequent actions, coupled with the officers’ observations, provided reasonable grounds to believe that petitioner had been driving in violation of Vehicle and Traffic Law § 1192.

Petitioner’s willingness to undergo the chemical test to determine the alcohol content of his blood approximately 1 hour and 40 minutes after his arrest does not preclude a determination that he had refused to take such test within the meaning of Vehicle and Traffic Law § 1194 (3) (a). The evidence supported the finding that he refused at several times shortly after his arrest to take the test, and after being given the requisite warnings, asserting that the police had no reason to stop him or that he was not intoxicated. The two-hour time period set forth in Vehicle and Traffic Law § 1194 (1) is an evidentiary rule (see, Matter of White v Fisher, 49 AD2d 450).

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

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of United Petroleum Association, Inc., Appellant, v Henry G. Williams, as Commissioner of the New York State Department of Environmental Conservation, Respondent.
    Argued April 22, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      G. S. Peter Bergen and Thomas E. Mark for appellant.

      Robert Abrams, Attorney-General (Francis J. Keehan, Robert Hermann, Peter H. Schiff and James A. Sevinsky of counsel), for respondent.

      Usher Fogel and Emilio Petroccione for Empire State Petroleum Association, Inc., amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice John T. Casey at the Appellate Division (102 AD2d 491).

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


text:
    In the Matter of Arthur Tibaldi, as President of Local 1407, District Council 37, AFSCME, AFL-CIO, Appellant, v Stanley Brezenoff, as President of the New York City Health and Hospitals Corporation, et al., Respondents.
    Argued April 29, 1985;
    decided June 4, 1985
    APPEARANCES OF COUNSEL

      Ronald Rosenberg, pro hac vice, Beverly Gross and Claude I. Hersh for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, for further proceedings on the petition.

General Associations Law § 12 provides that the president or treasurer of an unincorporated association may maintain an action or special proceeding “upon any cause of action, for or upon which all the associates may maintain such an action or proceeding, by reason of their interest or ownership therein”. The proceeding has been dismissed on the ground that the president of the union has no standing to maintain the present proceeding because of a conflict of interest among three of its members who failed an oral examination for promotion to senior associate accountant and others of its membership who passed both the written and oral components and whose positions on the list of eligibles may be affected if the present proceeding (which questions the failure to indicate the weight to be attached to the oral component) is successful.

Under General Associations Law § 12, standing of the union turns on whether all members of the union could maintain the action by reason of their interest. As Matter of Burke v Sugarman (35 NY2d 39) made clear, eligibles on a civil service list from which a position is to be filled, as well as ineligibles, have standing to challenge the compliance with governing constitutional, statutory and regulatory provisions of the procedures under which the list was produced.

Whether the present proceeding involves any violation of the union’s obligation of fair representation is a different question: viz., whether in fairness the union should be permitted to maintain a proceeding in which the interests of some of its members may be in conflict with the interests of others; not whether all of the union’s members may maintain such a proceeding. The former question, as we have but recently recognized, does not of necessity foreclose a union’s acting on behalf of some members whose interests are opposed by some of the other members, though in some situations it may (Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 197 [“Where the union undertakes a good-faith balancing of the divergent interests of its membership and chooses to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees, such accommodation does not, of necessity, violate the union’s duty of fair representation”]; see, Jacobs v Board of Educ., 64 AD2d 148, appeal dismissed 46 NY2d 1075).

Whether in the present case the union’s obligation of fair representation proscribes its maintenance of the proceeding as well as whether there should be a joinder of those on the eligible list are questions not subsumed by the affirmative defense of lack of standing. It was, therefore, error to dismiss the proceeding on that ground.

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

Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings on the petition in a memorandum.


text:
    Blanca C. and Others, Infants, by their Mother and Natural Guardian, Carmen M., et al., Appellants, v County of Nassau et al., Respondents, et al., Defendants.
    Argued May 1, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Edward B. Joachim and Jeffrey S. Lisabeth for appellants.

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondents.

      Robert Abrams, Attorney-General (Michael S. Buskus, Robert Hermann and Peter H. Schiff of counsel), amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

We agree, for the reasons stated in the opinion of Justice David T. Gibbons (103 AD2d 524, 530-532; see, Hawley v State of New York, 16 NY2d 809), that defendant County is not vicariously responsible for the injuries inflicted by the foster parents upon plaintiff foster children. The jury’s responses to the special interrogatories submitted to it made clear that it found the County liable only vicariously and not for negligent supervision. In that posture of the case it is unnecessary for us to pass upon whether and to what extent a governmental agency may be held liable for such an injury on the theory of negligent supervision of the foster parents’ care of the foster children entrusted to them (see, Bartels v County of Westchester, 76 AD2d 517; Doe v New York City Dept. of Social Servs., 709 F2d 782, cert denied sub nom. Catholic Home Bur. v Doe, 464 US 864).

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

Order affirmed, without costs, in a memorandum.


text:
    Carmine D’Angelo, on Behalf of Himself and All Other Purchasers of Triborough Bridge and Tunnel Authority Discount Toll Plans, Appellant, v Triborough Bridge and Tunnel Authority, Respondent.
    Decided June 4, 1985

      APPEARANCES OF COUNSEL

      Carlos J. Cuevas for appellant.

      Joseph Bulgatz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Arnold L. Fein at the Appellate Division (106 AD2d 128). See also Levine v Long Is. R. R. Co. (30 NY2d 907, affg 38 AD2d 936, 938). Additionally, we note that estoppel is not available against a governmental agency engaging in the exercise of its governmental functions absent an “unusual factual situation”, which does not exist here (see, Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33).

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


text:
    In the Matter of Park West Village Associates, Respondent, v Robert Abrams, as Attorney-General of the State of New York, et al., Appellants. In the Matter of Coliseum Park Apartments Company et al., Respondents, v Robert Abrams, as Attorney-General of the State of New York, et al., Appellants.
    Argued May 2, 1985;
    decided June 4, 1985

      Matter of Park W. Vil. Assoc. v Abrams, 104 AD2d 741, affirmed.

      Matter of Coliseum Park Apts. Co. v Abrams, 104 AD2d 741, affirmed.
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (James M. Morrissey, Robert Hermann, Peter Sherwood and Oliver A. Rosengart of counsel), appellant pro se.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Leonard Koerner of counsel), for the City of New York, appellant.

      Joseph L. Forstadt and Robin J. Stout for Park West Village Associates, respondent.

      Joel J. Spector and Richard S. Fries for Coliseum Park Apartments Company and others, respondents.

      Bradley R. Brewer for the Metropolitan Council on Housing and others, amici curiae.

      Eugene G. Eisner and Elizabeth A. Werby for Park West Village Tenants’ Association, amicus curiae.

      Stephen J. Marcus and Carole L. Weidman for Coliseum Park Tenants’ Association, amicus curiae.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinions by Justice Martin Evans at Supreme Court, New York County.

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


text:
    Inland Vale Farm Company et al., Respondents, v Pangiotis G. Stergianopoulos et al., Constituting the North Salem Planning Board, Respondents, and Cambridge Associates, Appellant.
    Argued April 23, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Stuart R. Shamberg and Robert F. Davis for appellant.

      David Sive, Joan M. Ferretti and Mark A. Chertok for petitioners-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in that court’s memorandum (104 AD2d 395). We would but note the significant distinctions between this case and Matter of United Petroleum Assn. v Williams (65 NY2d 708, affg on opn below 102 AD2d 491 [decided herewith].) In United Petroleum, the agency followed the procedures mandated by SEQRA and reached the rational conclusion, supported by the record, that the proposed action would have no significant impact on the environment, obviating the need for preparation of an environmental impact statement (EIS). Here, by contrast, the respondent planning board failed to follow procedures requiring it to “make an initial determination whether an [EIS] need be prepared * * * as early as possible” (ECL 8-0109 [4]) and to compare possible impacts against the criteria listed in 6 NYCRR 617.11. In addition, the planning board issued a negative declaration instead of directing the preparation of an EIS, although they noted several respects in which the proposed project might adversely affect nearby water supplies and sewage disposal systems. This contravened the legislative mandate that an EIS be prepared when there is to be any proposed action that “may have a significant effect on the environment” (ECL 8-0109 [2] [emphasis added]).

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

Order affirmed, with costs, in a memorandum.

       The Appellate Division order “remitting” the matter to the respondent planning board “for the preparation of an environmental impact statement (EIS) and such further proceedings * * * as it deems appropriate” is final for purposes of this court’s subject matter jurisdiction. The full relief sought, and thus the only relief available in this article 78 proceeding — i.e., annulment of that body’s approval of the development plan and its determination that no environmental impact statement is necessary, and direction that such a statement be prepared — has been granted by the Appellate Division. Any further action that the planning board may take in this matter could be reviewed by the courts only through a new article 78 proceeding (see, Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 44 NY2d 475, 479).


text:
    In the Matter of Frederick J. Stark, Jr., Appellant, v New York State Department of Motor Vehicles et al., Respondents.
    Argued May 1, 1985;
    decided June 4, 1985

      APPEARANCES OF COUNSEL

      Marlene O. Tuczinski for appellant.

      Robert Abrams, Attorney-General (Lisa Margaret Smith, Robert Hermann, Peter H. Schiff and Peter G. Crary of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Commissioner of Motor Vehicles, pursuant to Vehicle and Traffic Law § 1194, determined that the warrantless arrest here was justified by exigent circumstances. The record demonstrates that there was an uninterrupted pursuit of petitioner by the police and that the intrusion into his home was necessary to enable them to attempt to ascertain petitioner’s blood alcohol level within the two-hour time limit prescribed by Vehicle and Traffic Law § 1194. On this record, the warrantless arrest was not illegal and the Commissioner’s determination to revoke petitioner’s license because of his refusal to submit to the chemical blood level alcohol test had a rational basis and may not be disturbed. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.) We have considered petitioner’s other contentions and find them to be meritless.

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

Judgment affirmed, with costs, in a memorandum.


text:
    Barbara De Zego et al., Appellants, v Albert Tydings, Respondent, et al., Defendants.
    Decided June 4, 1985
   Appeal will be dismissed, without costs, by the Court of Appeals sua sponte, unless within 20 days appellants, if they be so advised, serve upon respondent and file in this court a notice that they have abandoned their appeal to the Appellate Division, and stipulate for the withdrawal of that appeal, without costs.

Judge Titone taking no part.


text:
    Alisa Kasachkoff, Appellant, v City of New York et al., Respondents.
    Submitted May 13, 1985;
    decided June 4, 1985
   On the court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion to dismiss appeal in part dismissed as academic.


text:
    In the Matter of Martin J. Sawma, Appellant, v Steven B. Sample, as President of the State University at Buffalo, Respondent.
    Submitted May 13, 1985;
    decided June 4, 1985
   Motion for leave to appeal from the order of the Appellate Division dated January 29,1985, which affirmed a judgment of Supreme Court dated August 9, 1984, denied.

Motion for leave to appeal from the orders of the Appellate Division dated January 29, 1985, which affirmed orders of Supreme Court dated March 30, 1984 and November 18, 1983, dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.

Motion for leave to prosecute the appeal as a poor person dismissed as academic.


text:
    In the Matter of David C. Walentas, Appellant, v Emanuel P. Popolizio et al., as Members of the New York City Conciliation and Appeals Board, Respondents, and Stuart Steinbrink et al., Intervenors-Respondents.
    Submitted May 6, 1985;
    decided June 4, 1985
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]), with $20 costs and necessary reproduction disbursements to intervenors-respondents.


text:
    Eugene B. Arnold et al., Appellants, v State of New York, Respondent.
    (Claim No. 65597.)
    Decided June 4, 1985
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601 [a] [i]).


text:
    Robert F. O’Connor, Appellant, v Eastman Kodak Company, Respondent.
    Decided June 6, 1985

      APPEARANCES OF COUNSEL

      George A. Burrell for appellant.

      Robert MacCrate for respondent.
   OPINION OF THE COURT

Memorandum.

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

An employer has the right to terminate employment at will at any time and for any reason or no reason, except as that right may have been limited by express agreement with the employee or in a collective bargaining agreement of which the employee is a beneficiary (Murphy v American Home Prods. Corp., 58 NY2d 293; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Parker v Borock, 5 NY2d 156).

In support of his cause of action for breach of an employment contract, plaintiff does not rely upon any specific representation made to him during the course of his employment interviews, a provision of a collective bargaining agreement or a policy incorporated in a company handbook referred to during the interviews or thereafter adopted which expressly limited defendant’s common-law right. Rather he relies upon the popular perception of Kodak as a “womb to tomb” employer and its “Performance Appraisal System” requiring periodic evaluation of each employee. Nothing in that system or in the company handbooks in the record establishes that Kodak promised more than that it would strive to maintain stable employment and to evaluate performance fairly. To the contrary, the “Termination Allowance Plan” expressly stated that if “employment terminates because of discharge,” the discharged employee would not qualify for termination allowance. Defendant Kodak was, therefore, properly granted judgment dismissing the first cause of action.

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

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


text:
    In the Matter of Howard Johnson Company, Appellant, v State Tax Commission, Respondent.
    Argued May 1, 1985;
    decided June 6, 1985

      APPEARANCES OF COUNSEL

      Edward H. Hein for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, Robert Hermann and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the determination of respondent annulled and the matter remitted to Supreme Court with directions to remand to respondent State Tax Commission for a grant of petitioner’s application for a refund in accordance with this memorandum.

Petitioner instituted this article 78 proceeding to obtain annulment of a special franchise tax assessment imposed on it by respondent pursuant to Tax Law § 208. The issue is whether income derived during the years 1973 and 1974 from a variety of short-term corporate obligations was “business income” or “investment income” for allocation purposes. Special Term and the majority at the Appellate Division concluded that the income was business income under the statute (Tax Law § 208 [5]-[9]; see also, former 20 NYCRR 3.31 [c]). It therefore sustained the respondent’s determination and dismissed the petition. The two dissenters interpreted the patently ambiguous statutory sections otherwise and would have granted the petition.

We find it unnecessary to analyze the statute and former regulations in specific detail as the courts below have done. The record makes it abundantly clear the Commissioner has consistently for more than 20 years, interpreted the statute to mean that short-term notes of the kind in issue here are investment capital and the income earned from them investment income (see, letter of Commissioner Joseph Murphy, dated June 6,1962, Appellant’s Brief, at A-5-6; Matter of Diamond Intl. Corp., 5 CCH New York State Tax Rptr [Transfer Binder 1966-1968], 1198-933 [State Tax Commn Dec. 1, 1967]). Petitioner was entitled to rely on the Commissioner’s interpretation, therefore, and respondent’s contrary interpretation of the statute in this case was arbitrary and capricious.

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

Order reversed, with costs, determination of the respondent annulled and matter remitted to Supreme Court, Albany County, with directions to remand to respondent State Tax Commission for further proceedings in accordance with the memorandum herein.


text:
    Patricia Demille, as Administratrix of the Estate of Clark R. Demille, Deceased, Appellant, v Franklin General Hospital et al., Respondents.
    Decided June 6, 1985

      APPEARANCES OF COUNSEL

      Peter L. Contini for appellant.

      Charles K. Faillace for Franklin General Hospital and another, respondents.

      Spencer L. Studwell for Norman Geshlider, respondent.

      Leland Garhus for Melvin A. Kramer and others, respondents.

      E. Richard Rimmels, Jr., for Burton S. Diamond, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 656).

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


text:
    Irving R. Bykofsky, Appellant, v Robert L. Hess, as President of Brooklyn College, et al., Respondents.
    Decided June 6, 1985

      APPEARANCES OF COUNSEL

      Milton Horowitz for appellant.

      Robert Abrams, Attorney-General (Lisa R. Dell of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 779).

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


text:
    Louis Wiener, Appellant, v Ga-Ro Die Cutting, Inc., Respondent.
    Decided June 6, 1985

      APPEARANCES OF COUNSEL

      Robert L. Lewis and Joseph M. Mayerhoff for appellant.

      Joseph M. Hershkowitz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 331). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Bryan Farnsworth, Appellant.
    Decided June 6, 1985

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Howard K. Broder of counsel), for appellant.

      Howard R. Relin, District Attorney (Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

A reversal is mandated by the trial court’s denial of defendant’s request for a charge on intoxication. Where the issue on appeal is whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant (People v Padgett, 60 NY2d 142, 144; People v Watts, 57 NY2d 299, 301; People v Torre, 42 NY2d 1036,1037; People v Steele, 26 NY2d 526, 529). Here, the appearance and conduct of defendant when he was arrested, which are described in the dissenting memorandum of Justice Samuel Green (106 AD2d, at pp 880-882), constituted sufficient evidence to warrant a charge on intoxication at defendant’s trial.

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

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


text:
    June Rosner, Plaintiff, v Louis J. Paley et al., Defendants. Louis J. Paley et al., Plaintiffs, v June Rosner, Defendant. Louis J. Paley et al., Third-Party Plaintiffs-Respondents, v Philip R. Forlenza et al., Third-Party Defendants-Appellants.
    Argued April 29, 1985;
    decided June 6, 1985

      APPEARANCES OF COUNSEL

      Roy L. Reardon and Robert A. Bourque for appellants.

      Martin I. Shelton, Mark E. Davidson and Peter C. Neger for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of the Supreme Court which dismissed the third-party complaint, reinstated.

This action was commenced by plaintiff against her former attorneys, defendants and third-party plaintiffs, Sharretts, Paley, Carter & Blauvelt, P. C. (“Paley”), to recover damages as a result of legal malpractice in advising her to enter into a 1978 agreement in settlement of a dispute over the alleged mismanagement of the family trust. The agreement had designated plaintiff a cotrustee with her mother and sister, provided her with a salary as an officer with the Century Paramount Hotel, one of the principal assets of the trust, and gave her the right to an informal accounting to determine if she had received equal treatment with her sister in distributions. Additionally, the mother agreed to exercise a power of appointment in a marital deduction trust in her favor. In return, plaintiff waived any right to a judicial accounting and agreed not to proceed against the trustees for mismanagement.

Subsequently, plaintiff retained the third-party defendants, Hawkins Delafield & Wood (“Hawkins”), as her attorneys, and they advised her that there were serious legal questions, not only with regard to her appointment as cotrustee, but also as to the original appointment of her mother and sister. They also stated that, since, at the time of her appointment, plaintiff had knowledge of possible mismanagement by the trustees, she had potential liability for failing to seek a judicial accounting, especially since the settlement agreement had been entered into without any proper authorization on behalf of her niece, a contingent remainderman, who was then an infant. As a result, Hawkins advised her to petition the court for instructions and directions as to her status and duties as trustee, for a ruling as to the appointment of her mother, sister and herself as cotrustees and for a judicial accounting.

The special proceeding for instructions and this malpractice action against Paley were commenced in June 1979. Paley thereafter served a third-party complaint, alleging that Hawkins had “failed to exercise due care and sound professional judgment in advising Rosner” and, inter alia, that “[s]he should petition the Court for instructions and directions with respect to her status and duties as a co-Trustee.” Special Term granted a motion to dismiss the third-party complaint, pursuant to CPLR 3211 (a) (7), holding that it failed to state a cause of action for malpractice. The Appellate Division, with two Justices dissenting, reversed.

We disagree. Contrary to the holding of the majority in the Appellate Division, whether the pleading was sufficient to state a cause of action for legal malpractice posed a question of law which could be determined on a motion to dismiss. Under the circumstances of this case, when Hawkins advised plaintiff to seek judicial instruction, there was a distinct possibility of potential liability, especially in view of the high standard imposed upon a fiduciary. (See, Meinhard v Salmon, 249 NY 458, 464; Matter of Rothko, 43 NY2d 305, 320; see also, Rosner v Caplow, 105 Misc 2d 592, mod 90 AD2d 44, affd 60 NY2d 880.) Therefore, as a matter of law, the legal advice was not malpractice.

Construing the third-party complaint liberally in favor of the third-party plaintiffs, it alleges no more than an error of judgment by Hawkins, which does not rise to the level of malpractice. (See, Byrnes v Palmer, 18 App Div 1, 4, affd 160 NY 690; Grago v Robertson, 49 AD2d 645, 646; Parksville Mobile Modular v Fabricant, 73 AD2d 595, 600.) While Paley poses several other alternatives which might have been pursued by Hawkins, selection of one among several reasonable courses of action does not constitute malpractice. (See, Byrnes v Palmer, supra; cf. Pike v Honsinger, 155 NY 201, 210.)

In determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages. We observed in Rogers v Dorchester Assoc. (32 NY2d 553, 564): “The rule of apportionment applies when two or more tort-feasors have shared, albeit in various degrees, in the responsibility by their conduct or omissions in causing an accident, in violation of the duties they respectively owed to the injured person.” (See also, Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633; Nolechek v Gesuale, 46 NY2d 332, 342 [Gabrielli, J., concurring].) This same rationale was followed in Schauer v Joyce (54 NY2d 1), where the issue was whether there had been allegations of a breach by the defendant and third-party defendant of their respective duties owed to the plaintiff, which contributed to her ultimate injuries. The situation in this case, however, is different in that the third-party complaint fails to allege any breach of duty by appellants giving rise to a cognizable claim for malpractice.

Accordingly, we reverse and reinstate the order of the Supreme Court which had dismissed the third-party complaint.

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

Order reversed, with costs, and order of Supreme Court, New York County, reinstated in a memorandum. Question certified answered in the negative.

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


text:
    Eight Associates, Appellant, v Michael Hynes, Respondent.
    Argued May 2, 1985;
    decided June 6, 1985

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz and Robert D. Goldstein for appellant.

      Spiros A. Tsimbinos for respondent.

      Gary M. Rosenberg and Luise A. Barack for Community Housing Improvement Program, Inc., amicus curiae.

      Kalman Finkel, John E. Kirklin, Scott A. Rosenberg, David W. Wechsler and Thomas P. Kerrigan for The Legal Aid Society of New York, amicus curiae.

      Andrew Scherer, William A. Herbert, Robert Levy and Joseph A. Ruskay for New York Civil Liberties Union and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

The question before the court is whether the Appellate Division erred as a matter of law in finding that the “reasonable application” requirement of RPAPL 735 (1) had not been met by appellant landlord by a single attempt to make service on respondent tenant at noon on a weekday before affixing the notice of petition and petition to the apartment door and mailing a second copy by certified mail. Put another way, the question before us is whether, on this record, there was demonstrated “reasonable application” as a matter of law. Viewing this case in that manner, we conclude there was no error of law, and the order should therefore be affirmed.

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

Order affirmed, etc.

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


text:
    Edward P. Barker et al., Appellants, v Tennis 59th, Inc. et al., Respondents.
    Decided June 6, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Appellate Division order granting a new trial which is here sought to be reviewed, did not “necessarily affect” the final judgment, as required by CPLR 5601 (d) (Miocic v Winters, 52 NY2d 896; Cohen and Karger, Powers of the New York Court of Appeals § 79, at 344).


text:
    Romola Dyson, Respondent, v Robert C. Dyson, Appellant.
    Submitted April 22, 1985;
    decided June 6, 1985
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals § 43).


text:
    Professional Detail Service, Inc., Appellant, v Board of Education of the City of New York, Respondent.
    Submitted April 8, 1985;
    decided June 6, 1985
   Motion to vacate the Court of Appeals order of dismissal dated March 20, 1985 denied, with $20 costs and necessary reproduction disbursements. [See, 64 NY2d 1016.]


text:
    State Bank of Albany, Respondent, v John L. McAuliffe, Appellant.
    Submitted April 1, 1985;
    decided June 6, 1985
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [d]).


text:
    The People of the State of New York, Appellant, v Luis Marin, Also Known as Pedro Davila, Respondent.
    Argued March 20, 1985;
    decided June 11, 1985

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Anthony Joseph Servino and Richard E. Weill of counsel), for appellant.

      J. Radley Herold for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The question on this appeal is whether the evidence was sufficient to support defendant’s conviction on arson and felony murder charges stemming from a December 4,1980 hotel fire in which 26 people lost their lives. The trial court set aside the jury’s verdict of guilt and the Appellate Division unanimously affirmed.

The well-settled standard of proof in circumstantial evidence cases is that the facts from which the inference of defendant’s guilt is drawn must be inconsistent with the defendant’s innocence and must exclude to a moral certainty every other reasonable hypothesis (People v Sanchez, 61 NY2d 1022,1024; People v Way, 59 NY2d 361, 365; People v Bearden, 290 NY 478, 480). Viewing the evidence in the light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn therefrom, this court must now determine whether the jury reasonably concluded that the prosecution met this standard.

The People at trial called more than 40 witnesses and introduced a multitude of exhibits. While the evidence was sufficient to establish that the fire was intentionally set (see, People v Sims, 37 NY2d 906), the deficiency in the People’s case lies in proof of the arsonist’s identity. According to the prosecution, defendant’s identity as the arsonist was proved by evidence of three points, each separately considered below: defendant’s opportunity to set the fire and his access to the accelerant allegedly employed; his motive; and his consciousness of guilt as revealed in several statements he made following the fire.

OPPORTUNITY AND ACCESS

The People contend that the evidence established defendant’s access to the accelerant and his presence at the intersection of the Haight and Common Hallways, the origin of the fire, at the time the fire was set.

Though expert testimony failed to reveal directly the type of accelerant used, the prosecution asked the jury to infer that a mixture of sterno, or handy fuel, and gasoline caused the fire. In support of this theory, the People established that a bottle found in the kitchen service hallway near the Wilson Room three weeks after the fire, which had been left there before the fire, contained residue of such a mixture. Even if this inference were justified, there is no support for the added inference that defendant had exclusive access to such a mixture, or that he was in possession of this mixture at a point close in time to the fire. Defendant had access to sterno, used on his coffee cart, but as the prosecutor admits, sterno alone could not have caused the fire; nor is it contended that sterno was inaccessible to other employees of the hotel or the general public. As to gasoline, the prosecution established only that about two months before the fire, defendant had a siphon and an empty gasoline container in the back of his car. This remote connection does not support an inference that defendant had possession of the accelerant on the day of the fire.

The People urge that defendant’s presence at the CommonHaight intersection when the fire ignited was established by eyewitness testimony of defendant’s whereabouts just before the fire, by defendant’s admissions regarding his activity before and during the fire, and by testimony concerning observations made and noises heard when the fire began. Consideration of this argument must begin with the recognition that defendant’s employment provides an innocent explanation for his presence in the hotel at all times and places, except for any presence in the Common-Haight intersection at the moment the fire was set.

On the morning of the fire, various hotel employees saw defendant preparing for the coffee breaks. At about 10:00 a.m., he was setting up for a 10:30 a.m. coffee break outside the Disbrow “A” Room, where Nestle Corporation executives were meeting. He then went back to the kitchen area and from there to the Jefferson Room, located in an adjoining building, where Alex Pastor was setting tables. Pastor testified that defendant left the Jefferson Room at about 10:10 a.m., some 15 minutes before Pastor heard the fire alarm. According to defendant’s statement to the police, he went back to the kitchen to arrange for a coffee break for executives meeting in the Wilson Room. When Joseph Romero, the banquet captain, appeared in the kitchen area, defendant said he needed some sodas for the coffee break. Romero testified that he let defendant into the liquor room, after which defendant obtained the beverages and left. Romero did not notice exactly where defendant went when he left. According to defendant’s statements, he went back to the kitchen to load the bottles on the cart in preparation for the Wilson Room coffee break, then brought the cart through the Jaimison Room, and then entered the Common Hallway where he saw the fire. Romero testified that he heard someone yell “fire” four to six minutes after defendant left him. During an interrogation session with defendant, an officer timed how long it would take defendant, with a cart, to walk through the Jaimison Room. The trip lasted 18 seconds.

This evidence was not sufficient to pinpoint defendant’s entry into the Common Hallway before the fire began. As the Appellate Division demonstrated, the time the fire started was narrowed, but not fixed. Further, the evidence does not disclose how much time elapsed between defendant’s leaving Romero and his entry into the Common Hallway because there is no indication of how long defendant spent loading bottles in the kitchen. This deficiency alone undermines the significance of Romero’s testimony as to the four to six minute interval between defendant’s leaving and his hearing a person yell “fire.” The significance of that testimony is further reduced by the absence of evidence as to the length of time between the start of the fire and the scream heard by Romero.

The People also sought to establish defendant’s identity by producing three witnesses who saw or heard events surrounding inception of the fire. Raj Sabanayagan, an Arrow Electronics executive, testified that he went up to the Common Hallway from a lower floor to deliver a phone message. When he reached the top of the stairs, he saw a small bundle of fire and had the impression that he saw a figure stoking the fire. He could not identify this figure and could not even say it was a human being.

Betty Jane Scheihing, another Arrow executive, saw a ball of fire when she exited the Nicols “B” Room after smelling smoke. She heard someone say, “come on, get out, come on.” Finally, Thomas Goodrum, a General Foods executive attending a conference in the Harrison Room, heard a vibration-type noise which sounded like a cart being pushed. Fifteen seconds to one minute later, he heard a female voice say, “Oh, my God.”

These witnesses do not point to defendant as the figure seen or the person heard. Neither Sabanayagan nor Scheihing could identify defendant. Nor does Goodrum’s testimony provide the necessary connection. Even assuming the noise he heard was in fact a cart being pushed, defendant’s cart was not the only one on the floor and an inference that defendant was the source of the noise was not justified.

MOTIVE

The prosecution established that three weeks before the fire, defendant informed his immediate supervisor, Silverio Ferreira, that he was an illegal alien. Ferreira indicated that defendant would probably be fired but assured defendant that he would check with his own supervisors. The day before the fire, Ferreira notified defendant that he would be fired in January. Additionally, at 8:00 a.m. on the morning of the fire, Ferreira reprimanded defendant because one of his coffee urns was dirty. This evidence, it is argued, established defendant’s desire for revenge on Stouffer’s or, alternatively, his confused belief that if he appeared as a hero in rescuing people from a fire, his job might be saved. Though this evidence of a possible motive cannot be ignored in examining the evidence in the light most favorable to the prosecution, it does not establish any element of the crime, and cannot take the place of proof of the accused’s actual commission of the crime.

CONSCIOUSNESS OF GUILT

According to defendant’s initial accounts of his movements during the fire, when he entered the Common Hallway and saw the fire, he immediately provided assistance to the occupants of the Harrison Room, either by breaking the window for them or by instructing them to do so and to jump to safety. Defendant told investigators that he escaped through the Haight Hallway. However, when he related a similar story to Ferreira nine days after the fire, Ferreira responded that it was impossible to escape through the Haight Hallway because it was too hot. Defendant admitted that his story was untrue and said he in fact escaped by running back through the Jaimison Room and out a

rear exit. Asked by Ferreira why he had fabricated the story, defendant indicated that he wanted to be a hero. Defendant provided a similar explanation to police in several interviews. He also told police that at about 10:00 a.m., he accidentally dropped a lit can of handy fuel on the carpet and extinguished the flames with his feet. According to the prosecution, this statement was demonstrably false because witnesses who passed the area at or after 10:00 a.m. noticed nothing unusual. During the series of interrogations, police accused defendant of setting the fire, but defendant denied the accusation.

Evidence said to indicate consciousness of guilt is generally considered weak proof of the commission of a crime. (See, People v Moses, 63 NY2d 299,308; People v Benzinger, 36 NY2d 29,33.) Defendant’s false statements regarding efforts to assist others are not inconsistent with his innocence. An innocent person in defendant’s position may have uttered such statements not because of knowledge of his own guilt but because of a misguided desire to gain praise and possibly save his job. Defendant’s statements regarding the accidental fire do not establish consciousness of guilt because, as a threshold matter, the People did not prove them to be false. There is no indication that such an accident would have been so long in duration or its after-effects so apparent that passersby would necessarily have noticed them.

We therefore conclude that the verdict was properly set aside.

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

Order affirmed in a memorandum.


text:
    John Clemens et al., Appellants, v Henry R. Apple, Respondent.
    Argued April 24, 1985;
    decided June 11, 1985

      APPEARANCES OF COUNSEL

      Michael T. Wallender, John T. DeGraff, Jr., and James T. Potter for appellants.

      Henry Neal Conolly, Michael J. Hutter and Robert P. McNally for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. While agreeing with the reasons stated by Justice Paul J. Yesawich, Jr., we would only add that the decision of the Appellate Division is fully consistent with our recent holding in Ryan v New York Tel. Co. (62 NY2d 494). In Ryan, we emphasized that the determination of whether to accord collateral estoppel effect to the quasi-judicial determination of an administrative agency must focus upon the realities of the prior litigation (id., at p 501). It was observed that once the issue of identity between the prior and pending actions is established, certain factors should be considered to determine whether a full and fair opportunity to litigate the issue at bar existed, including: “the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation.” (Id.) Since plaintiffs freely elected to proceed to arbitration with the assistance of counsel (Matter of American Ins. Co. [Messinger — Aetna Cas. & Sur. Co.], 43 NY2d 184, 191) despite the availability of an alternate judicial forum (Insurance Law § 675 [1]), and had the opportunity to employ procedures substantially similar to those utilized in a court of law (11 NYCRR 65.16 [c] [5]; see, Ryan v New York Tel. Co., 62 NY2d 494, 499, supra), we agree with the Appellate Division that plaintiffs had a full and fair opportunity to litigate the question whether Mr. Clemens’s herniated disc condition was causally related to the automobile accident.

Gilberg v Barbieri (53 NY2d 285), relied upon by plaintiffs, is distinguishable. In Gilberg, a majority of this court held that a conviction for the petty offense of harassment does not collaterally estop or preclude a defendant from disputing the merits of a subsequent civil suit for assault involving the same incident. The decision in Gilberg was premised upon the brisk pace at which the petty criminal charge was disposed, the manifest fact that defendant did not avail himself of the prior forum, and the lack of any suggestion that defendant was aware of the possibility that a conviction on a petty criminal charge might later be used in a civil suit seeking damages. The considerations underlying Gilberg are not present in this case. Here, plaintiffs were authorized to control the pace of the proceeding by seeking a postponement or adjournment. (11 NYCRR 65.16 [c] [5] [vii].) Plaintiffs freely chose the arbitration forum, although a judicial forum was, and remained, available at the time arbitration was sought. Finally, in view of the fact that the arbitration was sought subsequent to the commencement of this negligence action against defendant to recover for personal injuries, plaintiffs, proceeding with the aid of counsel, should have been aware of the possibility that the result of the arbitration would affect a pending court proceeding addressing, in part, the identical issue presented at the arbitration.

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

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


text:
    In the Matter of Robert M. Morgenthau, as District Attorney of New York County, Respondent, v George Roberts, a Justice of the Supreme Court, New York County, et al., Respondents, and Reggie Jones, Also Known as Reggie Moore, Appellant.
    Decided June 11, 1985

      APPEARANCES OF COUNSEL

      Steven G. Asin and Caesar D. Cirigliano for appellant.

      Robert M. Morgenthau, District Attorney (Mark Dwyer of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, the proceeding converted to an action for declaratory judgment and judgment granted declaring that Supreme Court had no authority to dismiss the felony complaint.

Whether the proceeding be considered as one for prohibition or for mandamus, it does not lie when there is available another adequate remedy (Matter of State of New York v King, 36 NY2d 59; 8 Weinstein-Korn-Miller, NY Civ Prac H 7801.07). An action for declaratory judgment is available to review the order of Supreme Court, Criminal Term, dismissing the felony complaint, for the People’s appeal involves no factual issues, is not collateral and the trial court’s ruling is likely to recur with similar results (Matter of Morgenthau v Erlbaum, 59 NY2d 143; see, Press v County of Monroe, 50 NY2d 695). We, therefore, convert the proceeding, pursuant to CPLR 103 (c), to an action for declaratory judgment.

On the merits, it is clear that Supreme Court was without authority to dismiss the felony complaint. CPL 210.20 provides only for the dismissal of indictments and the trial courts may not “dismiss criminal proceedings on grounds * * * which the Legislature never authorized.” (See, People v Douglass, 60 NY2d 194, 205.) Nor is there inherent or supervisory authority for such a dismissal (id., at p 205). Insofar as People v Daniel P. (94 AD2d 83) holds to the contrary, it is not to be followed.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, without costs, proceeding converted to an action for declaratory judgment and judgment granted declaring that Supreme Court had no authority to dismiss the felony complaint, in a memorandum.


text:
    Murray Cohen et al., as Administrators of the Estate of Stephen Cohen, Deceased, Respondents, v St. Regis Paper Company et al., Defendants, and Red Diamond Dry Ice & C02 Corp., Appellant. (And a Third-Party Action.)
    Decided June 11, 1985

      APPEARANCES OF COUNSEL

      Margaret A. Catillaz for appellant.

      Norman A. Palmiere for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division, for the reasons stated in its memorandum, that the evidence of defendant Red Diamond’s negligence was sufficient and that the trial court’s instructions on proximate and intervening cause, when read in the context of the entire charge, were not erroneous. Red Diamond’s request to charge that decedent’s knowledge of the dangers of dry ice would be a superseding cause as a matter of law fails to take into account the possibility of momentary forgetfulness by the decedent. Inasmuch as momentary forgetfulness is not contributory negligence as a matter of law (Serrano v Corcoran Plate Glass Co., 33 NY2d 544; Torrie v Virtuoso Bldg. Co., 58 AD2d 982; see, 1 NY PJI2d 71 [1984 Cum Supp]), it follows a fortiori that momentary forgetfulness should not be deemed a superseding cause that relieves a defendant of all liability as a matter of law.

Red Diamond’s additional request to charge that knowledge by decedent’s employer of the dangers of dry ice, coupled with its failure to warn the decedent, would be another superseding cause was also properly rejected by the trial court. This case is distinguishable from McLaughlin v Mine Safety Appliances Co. (11 NY2d 62), in that there is here no evidence of gross negligence such as there was in McLaughlin, where the warnings that might otherwise have been seen were removed and the remover stood idly by while the decedent was exposed to danger. Thus, the trial court properly submitted to the jury as a question of fact the claim that the employer’s negligent failure to warn constituted an intervening cause relieving Red Diamond of liability.

Finally, in light of his submission of a question on proximate cause, the Trial Judge’s decision not to submit an additional question on intervening cause was not an abuse of discretion (see, Johnson v Artkraft Strauss Sign Corp., 45 AD2d 482, 483).

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

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


text:
    In the Matter of Triple A Auto Driving School, Inc., Appellant, v Leslie G. Foschio, as Commissioner of the Department of Motor Vehicles of the State of New York, Respondent.
    Decided June 11, 1985
    APPEARANCES OF COUNSEL

      Frederick Chung, Jr., for appellant.

      Robert Abrams, Attorney-General (Eugene E. Zegarowicz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The proceeding raises issues concerning whether there was substantial evidence to support the Commissioner’s determination that on three separate occasions while the petitioner’s license to operate a driving school business was suspended it operated the business in violation of Vehicle and Traffic Law § 394 (2), and whether the penalty imposed was excessive.

The only question which requires discussion is whether petitioner was deprived of a fair hearing by the introduction of an affidavit of one of petitioner’s students attesting that she had received and paid for lessons on two dates during the suspension. The affidavit was presented in lieu of oral testimony because the student was ill on the day of the hearing and its introduction was supported by the testimony of the inspector who interviewed the student and by whom the sworn statement was taken.

Annexed to and admitted with the affidavit were photocopies of the student’s checks given on the day of the lessons in payment of petitioner’s fee, each of which bore petitioner’s indorsement. In light of that fact and of petitioner’s failure to present any evidence on its own behalf or in explanation of its indorsement on the checks, the evidence met the substantial evidence test that it be of such quality as to persuade a fair and detached fact finder that petitioner had violated the suspension order on the dates in question (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181).

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

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


text:
    Manty Benjamin, Appellant, v Kenneth Benjamin et al., Respondents.
    Decided June 11, 1985

      APPEARANCES OF COUNSEL

      Lawrence H. Bloom and Ira Richard Bennett for appellant.

      Norman E. Frowley for Kenneth Benjamin and another, respondents.

      Robert Abrams, Attorney-General (Charles R. Fraser of counsel), for New York State Division of the Lottery, respondent.

      Michael L. Entes, respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 599).

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


text:
    The People of the State of New York, Appellant, v Vincent McLean, Respondent.
    Decided June 11, 1985

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Mark L. Freyberg of counsel), for appellant.

      Abraham L. Clott and William E. Hellerstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the opinion by Justice John Carro at the Appellate Division (107 AD2d 167; see also, People v Marin, 65 NY2d 741; and People v Giuliano, 65 NY2d 766, decided herewith).

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


text:
    In the Matter of Harrison Kenner, Appellant, v Thomas Coughlin, III, as Commissioner of State of New York Department of Correctional Services, et al., Respondents.
    Submitted May 6, 1985;
    decided June 11, 1985
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dated March 1, 1985, dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.

Motion, insofar as it seeks leave to appeal from the Appellate Division order dated November 7, 1984, denied.


text:
    In the Matter of the Guardianship and Custody of Dawn Marie L. Little Flower Children’s Services, Respondent; Kenneth F., Appellant.
    Submitted May 13, 1985;
    decided June 11, 1985
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right from the unanimous Appellate Division order of affirmance, absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for a stay and for assignment of counsel dismissed as academic.


text:
    The People of the State of New York, Respondent, v Armando Pedraza, Appellant.
    Submitted May 13, June 3, 1985;
    decided June 11, 1985
   Motion to dismiss the appeal denied.

Motion to extend the time pursuant to CPL 460.60 (3) granted, and stay continued until determination of the appeal.


text:
    The People of the State of New York, Appellant, v Edward Galvin, Respondent.
    Argued April 29, 1985;
    decided June 13, 1985

      APPEARANCES OF COUNSEL

      Sol Greenberg, District Attorney (Ilene R. Bergman of counsel), for appellant.

      James E. Long for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, defendant’s conviction of assault in the first degree reinstated, the case remitted to the Appellate Division for consideration of the facts and other issues, if any, not previously passed upon, and, as so modified, the order in all other respects affirmed.

As correctly noted by Justice Casey in his dissenting opinion below, there is no reasonable view of the evidence other than that the victim’s injuries resulted from the pounding of his head against the pavement, and the possibility that the injuries were received in a mere scuffle or from an accidental fall is sheer speculation. The only witness to have a clear view of the altercation testified unambiguously that defendant was atop the victim, holding the latter’s head with both hands and striking it against the sidewalk. This testimony was not contradicted by any of the other witnesses, whether called by the People or defendant. Rather, their testimony was simply less complete as a result of their inability from their vantage point to observe all that was happening. There was no disagreement with the witness who saw everything. Moreover, while that witness’s testimony comports with the severity of the victim’s injuries — i.e., subdural hemorrhage necessitating a craniotomy — the other explanations offered by the majority below are clearly inconsistent therewith. Accordingly, the evidence demonstrating that the sidewalk was used as a dangerous instrument (see, Penal Law § 10.00 [13]; People v Carter, 53 NY2d 113), it was not error for the trial court to refuse to charge assault in the third degree.

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

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


text:
    Tova Farago et al., Appellants, v Howard Shulman et al., Respondents.
    Decided June 13, 1985

      APPEARANCES OF COUNSEL

      Alan J. Firestone for appellants.

      David Henry Sculnick for Howard Shulman, respondent.

      Steven J. Ahmuty for Brookdale Hospital Medical Center, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 965; see also, Tebbutt v Virostek, 65 NY2d 931).

Concur: Chief Judge Wachtler and Judges Simons, Kaye and Alexander. Judge Jasen dissents and votes to reverse for the reasons stated in his dissenting opinion in Tebbutt v Virostek (65 NY2d 931). Taking no part: Judges Meyer and Titone.


text:
    In the Matter of the Estate of Albert E. Farone, Deceased. Joseph F. Kehoe et al., Appellants; Albert E. and Angela T. Farone Foundation, Inc., et al., Respondents.
    Argued March 28, 1985;
    decided May 9, 1985

      APPEARANCES OF COUNSEL

      Philip C. Miller for appellants.

      John H. Hartman for Albert E. and Angela T. Farone Foundation, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and the decree of the Surrogate’s Court reinstated, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

The Appellate Division correctly determined that respondent Farone Foundation having participated in the proceedings before the Surrogate would be bound by the Surrogate’s construction of decedent’s will (SCPA 1420 [4]) and would be “aggrieved” by a determination that reduced the size of the residual trust of which it was a remainderman (CPLR 5511; Auerbach v Bennett, 64 AD2d 98, mod on other grounds 47 NY2d 619), and thus had standing to prosecute an appeal to that court. The court erred, however, in determining that the phrase “cash on hand” as used in paragraph “sixth” of the decedent’s will did not include moneys on deposit in a checking account at the Wilber National Bank. As correctly observed by the Surrogate the phrase “cash on hand” has been interpreted by many courts of this State to include funds in bank accounts that may be drawn on demand (see, Matter of Feist, 170 Misc 497; Matter of Sterling, 27 NYS2d 36; Matter of Hinds, 270 App Div 408; Matter of McKendrie, 150 Misc 665). In McKendrie, the court said (p 667) “the broad meaning of the word ‘cash’ has been held to include bank deposits * * * [a]nd to mean money which the owner has on hand, or subject to his right of immediate possession.” It appears that this is a commonly understood phrase in both the legal and business communities of which the testator was a prominent member. The testator apparently drafted the will; thus “its wording can be read in the light of the common way in which such terms are used by experienced persons of affairs” (Matter of Feist, 170 Misc 497, 498, supra).

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

Order insofar as appealed from reversed, etc.