text:
    [619 NE2d 401, 601 NYS2d 464]
    The People of the State of New York, Respondent, v May Elizabeth Bayne, Appellant.
    Argued June 1, 1993;
    decided July 6, 1993

      APPEARANCES OF COUNSEL

      Morvillo, Abramowitz, Grand, Iason & Silberberg, P. C., New York City (Diana D. Parker and Jeffrey Plotkin of counsel), for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, the secretary to the complainant, was charged with one count of grand larceny in the second degree and multiple counts of forgery in the second degree for stealing money from the complainant, a legally blind managing partner of a major New York City law firm. Count one of the indictment stated that defendant "from in or about December 1981 through October 1989, stole property, to wit, money, in an amount in excess of $50,000, to wit, over $700,000.” Defendant was also accused, in counts 2 through 20, of forging the signature of the complainant on other checks, without his authorization, and cashing them for her own benefit. An audit of the financial records of the complainant revealed that the total discrepancies between his income and his bank deposits exceeded $700,000.

Prior to the commencement of the jury trial, the People sought to introduce evidence of 146 additional checks that defendant had forged, made out for an amount greater than that requested by the complainant, or misappropriated, to establish defendant’s intent to commit the crimes charged. These checks were discovered after the indictment against defendant was filed but were forged, inflated or misappropriated by defendant during the period covered by the indictment. Defendant objected to the introduction of the uncharged checks to prove intent and stated she wished to submit a memorandum on the issue. No memorandum was submitted.

The trial court permitted the People to introduce evidence of the additional checks, and defendant did not request limiting instructions regarding the admission of those checks. The court prohibited "any mere attempt to bring out that [the complainant or the law firm] has been made whole as a result of insurance coverage.”

Defendant attempted to prove that the large sums of money she had amassed had been given to her by various members of her family, including her brother and sister. Defendant denied ever receiving any money from her mother and asserted that none of the money her siblings had given her could be traced back to her mother. The People argued that, given the salaries of defendant’s brother and sister, the only plausible source of any extra money that they had was their mother. On cross-examination, the People attempted to impeach defendant’s credibility by introducing evidence demonstrating that defendant’s mother had received public assistance or food stamps from 1979 until after her death in 1990 and, thus, could not have given large sums of money to defendant’s siblings.

The jury convicted defendant of the grand larceny count and 18 counts of forgery in the second degree, and sentence was imposed. On June 19, 1991, Justice Rosenberger of the Appellate Division, First Department, stayed execution of the judgment of conviction pending an appeal to that Court. The Appellate Division affirmed the judgment of conviction, holding that (1) defendant’s claim that the indictment was duplicitous was unpreserved and would not be reviewed in the interest of justice, and (2) the evidence establishing that defendant’s mother received public assistance was properly admitted to refute defendant’s assertion that the money she had accumulated resulted from her mother’s wealth (186 AD2d 419). The Court also remitted the case to Supreme Court for further proceedings pursuant to CPL 460.50 (5) (id.). A Judge of this Court granted leave to appeal (80 NY2d 1025) and continued the stay of execution of Supreme Court’s judgment on the same terms as fixed below. We now affirm the order of the Appellate Division.

Defendant’s contention that the trial court should have administered limiting instructions prior to the introduction of the additional 146 checks is unpreserved (see, People v Thomas, 50 NY2d 467, 471), and her claim that the trial court constructively amended the indictment by permitting the jury to consider the evidence of the 146 additional checks as direct evidence of the larceny count is without merit.

Here, the evidence of the 146 uncharged forged checks was offered to prove defendant’s intent to commit the specific crimes charged (see, People v Molineux, 168 NY 264). The evidence did not amend or add to the charges in the indictment or submitted to the jury by the court, but rather served only as evidentiary support for the larceny count.

Defendant’s contention that the trial court abused its discretion in precluding any attempt to introduce the evidence of insurance coverage, in order to demonstrate bias on the part of the complainant, is not preserved for appellate review (see, People v Thomas, supra). Defendant’s contention that the trial court erred in allowing the People to cross-examine her on the collateral issue of whether her mother had received public assistance is also unpreserved.

We have examined defendant’s remaining contentions and conclude that they are without merit.

Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur; Chief Judge Kaye taking no part.

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [619 NE2d 403, 601 NYS2d 466]
    The People of the State of New York, Appellant, v John Smith, Respondent.
    Decided July 6, 1993

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ann E. Ryan of counsel), for appellant.

      Edwin A. Rollins, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Under CPL 30.30 (1) (a), the People have six months, or in this case 181 days, to be ready for trial, exclusive of any periods of time properly chargeable to the defense. The question before us is whether the People should be charged with time beyond the dates to which they requested adjournments. The People contend that an adjournment which is extended because the defense rejects the original date suggested by the People should be, in part, excludable from the time chargeable to them. This argument is without merit.

In People v Kendzia (64 NY2d 331), we stated that " 'ready for trial’ [pursuant to] CPL 30.30 (1) encompasses two necessary elements” (id., at 337). First, the People must communicate their readiness on the trial court’s record, either by a statement of readiness by the prosecutor in open court or through a written notice of readiness sent by the prosecutor to defense counsel and the appropriate court clerk (see, id.). Secondly, the prosecutor must in fact be ready to proceed at that time (see, id.). Delays caused by the court, such as delays in arraignment or other court congestion, do not excuse the People from timely declaring their readiness for trial (see, People v Correa, 77 NY2d 930, 931; People v Brothers, 50 NY2d 413, 417). The People can avoid being charged with prereadiness delay occasioned by court scheduling by filing a certificate of readiness (see, People v Tavarez, 147 AD2d 355, 356, lv denied 73 NY2d 1022). Inasmuch as the People never stated their readiness for the record in this case, the People should be charged with the entirety of the adjournment periods (see, People v Kendzia, supra). The rule we restate today, which requires the prosecution to file a certificate of readiness or make a statement of readiness in open court, objectively establishes the date on which they can proceed and eliminates the need for a court to determine to whom adjournment delays should be charged.

The People’s contention that defense counsel’s unavailability amounted to consent to a longer delay is also unavailing. Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent (see, People v Liotta, 79 NY2d 841, 843). The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    Ansonia Associates, Respondent, v Ansonia Tenants Coalition, Appellant.
    Submitted June 28, 1993;
    decided July 6, 1993
   Motion for reargument of motion for leave to appeal dismissed upon the ground that movant was not a party to the original motion for leave to appeal. [See, 81 NY2d 1040.] Motion for leave to appeal denied.

Judge Smith taking no part.


text:
    In the Matter of Jah Bunny, Also Known as Cleveland Guy, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, Respondent. Norman Chang et al., Proposed Intervenors.
    Submitted June 7, 1993;
    decided July 6, 1993
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the issues presented have become moot. Cross motion for leave to intervene denied.


text:
    Cross Westchester Development Corporation et al., Respondents, v Norman I. Saferstein et al., Appellants.
    Submitted June 28, 1993;
    decided July 6, 1993
   Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 81 NY2d 827.]


text:
    In the Matter of the Estate of Robert Gates, Sr., Deceased. Viki L. Hatch, as Administratrix of the Estate of Robert Gates, Sr., Deceased, Respondent, et al., Petitioners; Donald H. Brahm et al., as Coadministrators of the Estate of Cheryl Brahm, Deceased, et al., Defendants, and Jason Gates, Appellant.
    Submitted May 17, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of the motion for reargument or renewal, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Robert Gates, Sr., Deceased. Viki L. Hatch, as Administratrix of the Estate of Robert Gates, Sr., Deceased, Respondent, et al., Petitioners; Donald H. Brahm et al., as Coadministrators of the Estate of Cheryl Brahm, Deceased, et al., Appellants, and Jason Gates, Defendant.
    Submitted June 21, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of the motion for reargument or renewal, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Jane Hope et al., on Behalf of Themselves and All Others Similarly Situated, et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants, and St. Vincent’s Hospital and Medical Center of New York et al., Proposed Intervenors-Appellants.
    Submitted June 7, 1993;
    decided July 6, 1993
   Motion to dismiss the appeals taken by Alma Poindexter, St. Vincent’s Hospital and Medical Center of New York, Our Lady of Mercy Medical Center, and St. Mary’s Hospital of Brooklyn granted and the appeals, insofar as taken from that portion of the Appellate Division order that affirmed the order of Supreme Court denying the motions to intervene, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution and, insofar as taken from the remainder of the Appellate Division order, dismissed, with $400 costs and $100 costs of motion, upon the ground that, absent an order of intervention, the proposed intervenors-appellants are not parties to the action and thus lack capacity to challenge that part of the order.


text:
    Jane Hope et al., on Behalf of Themselves and All Others Similarly Situated, et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants, and St. Vincent’s Hospital and Medical Center of New York et al., Proposed Intervenors-Appellants.
    Submitted June 28, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of the motions to intervene, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that, absent an order of intervention, Alma Poindexter, St. Vincent’s Hospital and Medical Center of New York, Our Lady of Mercy Medical Center, and St. Mary’s Hospital of Brooklyn are not parties to the action and thus lack capacity to challenge that part of the order.


text:
    In the Matter of David Barnett Jacobs, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted April 14, 1993;
    decided July 6, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal, etc., denied.


text:
    In the Matter of the Arbitration between Elizabeth Kummerfeld, Respondent, and Masatoshi Sakai, Appellant.
    Submitted May 17, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of the judgment of Supreme Court denying respondent’s motion for disclosure, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lawrence C. Longway, Plaintiff, v Jefferson County Board of Supervisors et al., Defendants.
    Decided July 6, 1993
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    In the Matter of New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases). Sylvia Bleiweiss, Individually and as Executrix of Arthur Bleiweiss, Deceased. (And Other Related Actions.)
    Submitted June 21, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that vacated the judgments in Frank, Gordon, Sylvester, Traystman and Weiner and remanded for a new trial on damages, dismissed upon the ground that that part of the order does not finally determine the actions within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Kevin Hatzman, Appellant, v Robert H. Kuhlmann, as Superintendent of the Sullivan Correctional Facility, Respondent.
    Submitted May 3, 1993;
    decided July 6, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied. Motion for assignment of new counsel dismissed as academic.


text:
    Cheryl Rapp et al., Appellants, v Briarcliff Contemporaries, Inc., Respondent.
    Submitted May 3, 1993;
    decided July 6, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying plaintiffs’ cross motion to vacate the stipulation of settlement, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements. Motion to enlarge the record denied.


text:
    [619 NE2d 405, 601 NYS2d 468]
    The People of the State of New York, Respondent, v Lillian Johnson, Also Known as Margaret Boykins, Appellant.
    Decided July 8, 1993

      APPEARANCES OF COUNSEL

      Bruce A. Young, New York City, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Lisa H. Blitman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Charged with participating in a confidence scheme, defendant pleaded guilty to second degree burglary (Penal Law § 140.25), attempted third degree grand larceny (id., §§ 110.00, 155.35) and second degree bail jumping (id., § 215.56) after admitting to having "knowingly entered or remained unlawfully in the dwelling of [the victim] with the intent to commit a crime [therein].” Defendant’s present claim that her plea should be vacated because of a defective allocution was not preserved by a timely motion to withdraw her plea pursuant to CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10 (see, People v Mackey, 77 NY2d 846; People v Lopez, 71 NY2d 662) and, accordingly, may not be considered by this Court.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    [619 NE2d 405, 601 NYS2d 468]
    In the Matter of Barbara Sabol, as Commissioner of the New York City Human Resources Administration, et al., Appellants, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued June 1, 1993;
    decided July 8, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Gail Rubin and Loma B. Goodman of counsel), for appellants.

      Robert Abrams, Attorney-General, Albany (Robert A. Forte and Jerry Boone of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the matter remitted to Supreme Court, New York County, with directions to remand to the New York State Department of Social Services for further proceedings in accordance with this memorandum, and the certified question answered in the negative.

Following a utilization review conducted in 1984 and 1985 pursuant to Social Services Law § 398-b, petitioner, the New York City Human Resources Administration, was sanctioned by respondent, the State Department of Social Services (SDSS), for failure to meet regulatory mandates in its provision of foster care services. The principal issue on appeal is whether the State acted arbitrarily and capriciously in sanctioning the City for failure to comply with documentation requirements. The City contends that only noncompliance with standards governing the provision of services can properly be the basis for State sanctions under Social Services Law § 398-b and the regulations promulgated thereunder (see, 18 NYCRR part 430).

The regulations relevant here should be construed in accordance with a 1982 directive sent by respondent to petitioner and others involved in foster care. In the directive, SDSS interprets the regulations as allowing sanctions for documentation violations only when the documentation relates to (1) provision of mandated preventive services, (2) necessity of placement (except those parts requiring attempts to provide alternative living arrangements or actual provision of mandated preventive services), and (3) appropriateness of placement. These three categories constitute the headings and subject matter of 18 NYCRR 430.9, 430.10, and 430.11, respectively. Thus, for violations arising under those sections of the regulations (as limited by the exception mentioned in the directive), the City was properly held to a standard of strict compliance with the documentation requirements, regardless of whether the underlying mandated acts were performed.

The directive establishes a different regulatory scheme for documentation relating to "diligence of effort”, as required under 18 NYCRR 430.12. According to the directive, sanctions for documentation violations arising under section 430.12 must be voided if the City demonstrates that it in fact performed the acts mandated within the appropriate time frame, even though documentation of the acts was incomplete or technically improper.

The decision by the SDSS to ignore its own published interpretation of the relevant regulations in imposing sanctions constituted arbitrary and capricious action. On remand the scheme set forth in the directive should be applied.

Finally, those sanctions imposed for violations of 18 NYCRR 428.3 ("Uniform case record requirements”) must be vacated. 18 NYCRR 430.13 (a) limits the State’s power to impose sanctions arising from a utilization review to violations of 18 NYCRR 430.9 through 430.12. Because a utilization review is authorized solely by Social Services Law § 398-b, the SDSS may not rely on section 409-f and the regulations promulgated thereunder as a basis for utilization review sanctions.

Petitioner’s remaining contentions are without merit.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    [619 NE2d 649, 601 NYS2d 571]
    In the Matter of Martha J. Franze et al., Appellants, v County of Chautauqua, Respondent.
    Decided July 8, 1993

      APPEARANCES OF COUNSEL

      John Lloyd Egan, Jr,, Buffalo, for appellants.

      Stephen M. Adella, County Attorney of County of Chautauqua, Mayville (Mark A. Wines of counsel), 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 of the Appellate Division (191 AD2d 1014).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacos a and Smith.


text:
    Edwin Gunther et al., Petitioners, and Roslyn C. Marinoff, Appellant, v Robert Abrams, as Attorney-General of the State of New York, Respondent, and Lincoln Guild Housing Corporation, Intervenor-Respondent.
    Submitted May 17, 1993;
    decided July 8, 1993
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division that denied petitioner’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Caroline Rankin, an Infant, by Jonathan E. Rankin, Her Father and Natural Guardian, et al., Appellants, v Daniel E. Harding, Respondent.
    Submitted May 10, 1993;
    decided July 8, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied plaintiffs’ motion to renew, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    [619 NE2d 650, 601 NYS2d 572]
    Pamela J. Howell et al., Appellants, v New York Post Company, Inc., et al., Respondents.
    Argued February 17, 1993;
    decided July 9, 1993

      APPEARANCES OF COUNSEL

      Schiavetti, DeVito, Begos & Nicholson, New York City (Padraic D. Lee, Lori Ann Maraño, Jacqueline Mandell and Peter Brown of counsel), for appellants.

      Stroock & Stroock & Lavan, New York City (Laurence Greenwald, William A. Rome and Randy L. Shapiro of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as it pertains to defendant New York Post Co., Inc., should be affirmed, with costs.

Subsequent to oral argument, the Post filed a chapter 11 bankruptcy petition, and thus the appeal with respect to that defendant was stayed and our opinion applied only to the individual defendants (Howell v New York Post Co., 81 NY2d 115, 118, n 1 [Apr. 5, 1993]). By order dated May 20, 1993, the Bankruptcy Court lifted the automatic stay for purposes of permitting this Court to render a decision with respect to the Post. Accordingly, for the reasons stated in our Opinion of April 5, we now affirm as to the corporate defendant.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order, insofar as it pertains to defendant New York Post Company, Inc., affirmed, with costs, in a memorandum.


text:
    [619 NE2d 651, 601 NYS2d 573]
    The People of the State of New York, Respondent, v George Harrison, Appellant.
    Decided July 9, 1993

      APPEARANCES OF COUNSEL

      William B. Carney, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Allen H. Saperstein of counsel), 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. The first question presented, involving defendant’s sentence, is not preserved. The second question, involving possible police interrogation, constitutes a mixed question of law and fact and, inasmuch as there is support in the record for the determination below, it is beyond further review by this Court.

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    [619 NE2d 651, 601 NYS2d 573]
    In the Matter of Dr. J.P., Respondent, v Mark R. Chassin, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided July 9, 1993

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Barbara K. Hathaway of counsel), for appellants.

      Offermann, Mahoney, Cassano, Pigott, Greco & Whalen, Buffalo (Francis J. Offermann, Jr., of counsel), 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 Doe v Office of Professional Med. Conduct (81 NY2d 1050).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    [619 NE2d 407, 601 NYS2d 470]
    The People of the State of New York, Appellant, v John Rivera, Respondent.
    Argued June 1, 1993;
    decided July 9, 1993

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Mark Dwyer of counsel), for appellant.

      Stuart Banner, New York City, and E. Joshua Rosenkranz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that the evidence against defendant was insufficient to prove criminal possession of stolen property in the fourth degree. While the proof established that defendant knew the car in which he was observed was stolen, there was no evidence that he was in possession of it. Penal Law § 10.00 (8) defines "possess” as having "physical possession or otherwise to exercise dominion or control over tangible property”. Here, there was no showing that defendant exercised dominion or control over the car. The proof demonstrated that defendant was sitting in the passenger seat of the parked car, leaning towards the steering column which was broken and had wires hanging from it. Another person was seated in the driver’s seat. In addition, both the lock on the driver’s side door and the ignition switch had been broken, and a screwdriver was visible on the floor of the car. No evidence was offered, however, to establish when defendant entered the vehicle or what part, if any, he played in its taking. In these circumstances, defendant’s presence in the car cannot be equated with possession (see, People v Luter, 150 AD2d 391; People v Gregory, 147 AD2d 497).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    [619 NE2d 408, 601 NYS2d 471]
    The People of the State of New York, Respondent, v Elliot Epperson, Appellant.
    Argued June 3, 1993;
    decided July 9, 1993

      APPEARANCES OF COUNSEL

      Bond, Schoeneck & King, Syracuse (Robert H. Kirchner of counsel), for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Joan P. Sullivan and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a police officer, was suspended when he refused to submit to a random drug test. As part of the suspension, he was required to surrender his weapons, shield and identification card. While suspended, he was seen exiting a known drug location, was stopped and was found to possess a .22 caliber automatic handgun. He was indicted for criminal possession of a weapon in the third degree in violation of Penal Law § 265.02 (4) and criminal possession of a forged instrument (a duplicate of his police shield) in the second degree in violation of Penal Law § 170.25. Supreme Court granted the defendant’s motion to dismiss the indictment and the Appellate Division reversed by a divided vote, insofar as appealed from, and reinstated the criminal possession of a weapon count.

We reject defendant’s contention that he was exempt from prosecution by Penal Law § 265.20 (a) (1) (b) which exempts police officers as defined by CPL 1.20 (34) (d). The latter section defines police officer as "[a] sworn officer of an authorized police department or force of a city, town, village or police district.” However, by the terms of defendant’s suspension, he was clearly on notice that his authorization to carry a weapon, and hence any special legal status he might enjoy as a result of it, had been terminated. Thus, a reasonable person would be informed of the nature of the prohibited offense consistent with established principles of due process (see, People v Byron, 17 NY2d 64, 67). We conclude that the Legislature did not intend to exempt from prosecution any person who is not authorized to carry out the duties and functions of police officers. As stated by the Appellate Division, it is unreasonable to conclude otherwise.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Smith concur; Judge Hancock, Jr., taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Sue Allen et al., Appellants, v Seven Star Stereo, Inc., Respondent.
    Submitted June 28, 1993;
    decided July 9, 1993
   Appeal, insofar as taken from the Appellate Division’s dismissal of petitioners’ appeal to that Court, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from that determination absent an order to that effect; appeal, insofar as taken from the Appellate Division orders denying petitioners’ motion to vacate the dismissal of their appeal to the Appellate Division and denying their motion for reargument, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that these orders do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Anonymous, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted June 1, 1993;
    decided July 9, 1993
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution, and are not orders of the type provided for in CPLR 5602 (a) (2) (see, Matter of F. J. Zeronda, Inc. v Town Bd., 37 NY2d 198).


text:
    In the Matter of Anonymous, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted June 7, 1993;
    decided July 9, 1993
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution, and are not orders of the type provided for in CPLR 5602 (a) (2) (see, Matter of F. J. Zeronda, Inc. v Town Bd., 37 NY2d 198). Motion for a stay dismissed as academic.


text:
    Board of Education of the Cold Spring Harbor Central School District et al., Respondents, v Antonia Rettaliata, as Supervisor of the Town of Huntington, et al., Appellants. Board of Education of the Commack Union Free School District, Respondent, v Antonia Rettaliata, as Supervisor of the Town of Huntington, et al., Appellants.
    Submitted May 10, 1993;
    decided July 9, 1993
   Motion to dismiss the appeals granted and the appeals dismissed, with $400 costs and $100 of motion, upon the ground that no substantial constitutional question is directly involved. Motion for imposition of sanctions denied.


text:
    Citibank, N. A., Respondent, v Alan Freeman, Appellant, et al., Defendants.
    Submitted June 1, 1993;
    decided July 9, 1993
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429). Motion for a stay dismissed as academic.


text:
    In the Matter of the Estate of Harry A. Cohen, Deceased. Joel Goldberg, Appellant-Respondent; Rae Cohen, Respondent-Appellant.
    Submitted June 7, 1993;
    decided July 9, 1993
   Motion to dismiss respondent’s cross appeal and to vacate stay denied. Cross motion to dismiss petitioner Goldberg’s appeal and for the imposition of sanctions denied.


text:
    In the Matter of Omar Z. Ghobashy, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 7, 1993;
    decided July 9, 1993
   Motion, insofar as it seeks leave to appeal from the April 27, 1993 Appellate Division order, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Gerald A. Harley, Appellant, v United Services Automobile Association, Also Known as USAA, Respondent, et al., Defendant.
    Submitted May 24, 1993;
    decided July 9, 1993
   Motion by United Services Automobile Association to dismiss the appeal as against it granted and the appeal dismissed, with $400 costs and $100 costs of motion to defendant United Services Automobile Association only, upon the ground that no appeal lies as of right from that portion of the Appellate Division order which unanimously affirmed that part of the Supreme Court’s order granting the motion by United Services Automobile Association to dismiss the complaint against it absent the direct involvement of a substantial constitutional question. On the Court’s own motion, appeal, insofar as taken against defendant Lamanna, dismissed, without costs, upon the ground that that portion of the Appellate Division order that affirmed that portion of Supreme Court’s order denying plaintiffs motion for a default judgment against Lamanna does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Carol E. Huff et al., Respondents.
    Submitted June 28, 1993;
    decided July 9, 1993
   Appeal, insofar as taken from that portion of the Appellate Division order which denied the motion to disqualify counsel, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Walter M. Schackman et al., Respondents.
    Submitted June 28, 1993;
    decided July 9, 1993
   Appeal, insofar as taken from that portion of the Appellate Division order which dismissed the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portions of the order appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Jane D., Appellant, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted May 24, 1993;
    decided July 9, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a preference dismissed as academic.


text:
    Susan Joseph, as Parent and Natural Guardian of Randie Joseph, II, an Infant, Appellant, v City of Buffalo et al., Respondents. (Action No. 1.) City of Buffalo, Respondent, v Randie Joseph, Appellant. (Action No. 2.)
    Submitted January 11, 1993;
    decided July 9, 1993
   Motion by plaintiff for leave to appeal granted. Cross motion by defendant Randie Joseph for leave to appeal dismissed as untimely (CPLR 5513).


text:
    The People of the State of New York ex rel. Dwight Hendy, Appellant, v A. Leonardo, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Submitted May 24, 1993;
    decided July 9, 1993
   Motion for extension of the time within which to move for reargument denied. Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 78 NY2d 857.]


text:
    Barbara Purpura, Respondent, v Nicholas Purpura, Appellant.
    Submitted June 7, 1993;
    decided July 9, 1993
   Motion for leave to appeal from so much of the Appellate Division order as affirmed, insofar as appealed from, the Supreme Court order dated January 31, 1991, denied, with $100 costs and necessary reproductions disbursements; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Reliance Group Holdings, Inc., et al., Appellants, v National Union Fire Insurance Company of Pittsburgh, Pa., et al., Respondents.
    Submitted April 19, 1993;
    decided July 9, 1993
   Motion, insofar as it seeks leave to appeal as against defendant National Union Fire Insurance Company of Pittsburgh, Pa., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action; motion for leave to appeal otherwise denied.


text:
    Patricia Smith, Respondent, v Paul T. Finger, Appellant.
    Submitted April 5, 1993;
    decided July 9, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the order of Supreme Court denying defendant’s motion for an in camera interview of his child, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Urban Resource Institute, Inc., Doing Business as Urban Women’s Shelter, Respondent, v Nationwide Mutual Insurance Company, Appellant.
    Submitted April 26, 1993;
    decided July 9, 1993
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the August 28, 1992 Supreme Court order insofar as it denied renewal and dismissed the appeal from that Supreme Court order insofar as it denied reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Dorothea M. Weitzner, Appellant, v Division of Housing and Community Renewal et al., Respondents. Emilio Ambasz, Intervenor-Respondent.
    Submitted May 24, 1993;
    decided July 9, 1993
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as vacated the preliminary injunction, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Nora DeAngelo et al., Respondents, v Michael C. DiFilippo et al., Appellants, et al., Respondents.
    Submitted August 25, 1993;
    decided August 25, 1993
   On the Court’s own motion, appeal dismissed upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Joan Gucciardo et al., Respondents, v Robert S. Meyers et al., Appellants, et al., Respondent.
    Submitted August 25, 1993;
    decided August 25, 1993
   On the Court’s own motion, appeal dismissed upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Susan Loeb et al., Appellants-Respondents, v Migdalia Rivera et al., Respondents-Appellants.
    Submitted August 25, 1993;
    decided August 25, 1993
   Motion for leave to appeal denied. Cross motion by respondent Rivera for leave to appeal dismissed upon the ground that the cross movant is not a party aggrieved.


text:
    In the Matter of Anthony D. Reed, Appellant, v Ronald Starkweather et al., Respondents.
    Submitted August 25, 1993;
    decided August 25, 1993
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of Supreme Court (CPLR 5602). Motion for alternative relief denied.


text:
    [622 NE2d 293, 602 NYS2d 793]
    In the Matter of Daniel V. Hogan et al., Appellants, v Sterling T. Goodspeed et al., Respondents. In the Matter of William E. Montgomery, III, Appellant, v Sterling T. Goodspeed et al., Respondents.
    Argued August 25, 1993;
    decided August 26, 1993

      APPEARANCES OF COUNSEL

      Thomas J. Spargo, East Berne, for appellants.

      Bartlett Pontiff Stewart & Rhodes, Glens Falls (Richard J. Bartlett of counsel), for Sterling T. Goodspeed, respondent.

      Thomas M. Lawson, County Attorney of Warren County, Lake George (Brian S. Reichenbach of counsel), for Warren County Board of Elections, respondent.
   OPINION OF THE COURT

On petitioner Montgomery’s appeal, order affirmed, without costs, for the reasons stated in the Per Curiam opinion at the Appellate Division (196 AD2d 675).

Appeal by petitioners Hogan and Freebern dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division was not a dissent in their favor (CPLR 5601 [a]).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    [621 NE2d 689, 602 NYS2d 322]
    The People of the State of New York, Respondent, v Leroy Scott, Appellant.
    Decided September 2, 1993

      APPEARANCES OF COUNSEL

      Steven Berko, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Raphael J. Berman and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The suppression court’s undisturbed finding that defendant abandoned the bag when he "flew out” of the livery cab is supported by the record and thus beyond further review by this Court (see, People v Hollman, 79 NY2d 181, 193-194; People v Harrison, 57 NY2d 470, 478). The record supports the hearing court’s inference that when defendant exited the cab in an abrupt manner and without ever having been directed to do so by the police, he would have run away had one of the police officers not blocked his path.

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

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.


text:
    [621 NE2d 689, 602 NYS2d 322]
    The People of the State of New York, Respondent, v Mark Smith, Also Known as David Early, Appellant.
    Decided September 2, 1993

      APPEARANCES OF COUNSEL

      Lawrence A. Vogelman, New York City, Barry C. Scheck and Ellen Yaroshefsky for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. For the reasons stated by the majority at the Appellate Division, we reject defendant’s argument that the trial court’s inquiry pertaining to his request for new counsel was inadequate. Under the circumstances here, we conclude that no further inquiry was required. Moreover, we find no merit in defendant’s contention that his attorney provided inadequate representation. Counsel’s decision not to call a witness, whose testimony he assessed as weak, was a strategic legal decision which does not amount to ineffective assistance of counsel (see, People v Baldi, 54 NY2d 137, 150-152). Finally, defendant’s arguments concerning the prosecutor’s summation are merit-less. The statements complained of constituted nothing more than permissible references to the absence of credible testimony supporting defendant’s alibi defense (see, People v Allen, 121 AD2d 453, 454, affd 69 NY2d 915).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    In the Matter of Alan Kassebaum, Appellant, v Supreme Court of the State of New York, County of New York, Criminal Term, et al., Respondents.
    Submitted June 14, 1993;
    decided September 2, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    County of Rockland, Appellant, v Town of Orangetown, Respondent.
    Submitted June 1, 1993;
    decided September 2, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Medical Society of the State of New York et al., Appellants, v State of New York Department of Health et al., Respondents.
    Submitted June 1, 1993;
    decided September 2, 1993
   Motion for leave to appeal denied as unnecessary.


text:
    [622 NE2d 294, 602 NYS2d 794]
    In the Matter of Roger W. Gloss.
    Decided September 7, 1993
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Roger W. Gloss is suspended with pay, effective immediately, from his office of Justice of the Sheridan Town Court, Chautauqua County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    In the Matter of Brooke D. and Others.
    Submitted June 28, 1993;
    decided September 7, 1993
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of Kevin R., a Child Alleged to be Neglected. Patricia R. et al., Appellants; Commissioner of Social Services of the City of New York, Respondent.
    Submitted August 9, 1993;
    decided September 7, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Patricia Metzger, Respondent, v Samuel Metzger, Appellant.
    Submitted June 21, 1993;
    decided September 7, 1993
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Hwesu Murray, Appellant, v National Broadcasting Company, Inc., Respondent.
    Submitted August 9, 1993;
    decided September 7, 1993
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Charles M. Pateman III, Respondent, v Zoning Board of Appeals of Village of Irvington et al., Appellants.
    Submitted June 28, 1993;
    decided September 7, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Appellant, v Amos Hall, Respondent.
    Submitted June 28, 1993;
    decided September 7, 1993
   Motion for leave to appeal dismissed upon the ground that no civil appeal lies from the order entered in this criminal proceeding.


text:
    Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v State of New York, Respondent. (And Another Related Claim.)
    Submitted June 7, 1993;
    decided September 7, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the order of the Court of Claims denying claimant’s motion to vacate prior orders, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [621 NE2d 690, 602 NYS2d 323]
    Marna Thoma, Appellant, v Sandor Ronai, Respondent.
    Decided September 9, 1993

      APPEARANCES OF COUNSEL

      Sean E. Stanton, New York City, for appellant.

      Seligson, Rothman & Rothman, New York City (Alyne I. Diamond of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this negligence action to recover damages for personal injuries suffered by her as a pedestrian when she was struck by defendant’s automobile in an intersection. Defendant interposes comparative negligence.

The submissions to the nisi prius court on plaintiff’s motion for summary judgment, consisting of her affidavit and the police accident report, demonstrate that she may have been negligent in failing to look to her left while crossing the intersection. Plaintiff’s concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care. Accordingly, plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact and the lower courts correctly denied summary judgment.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum; Judge Levine 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, etc.


text:
    [621 NE2d 691, 602 NYS2d 324]
    Wayde Bush, Appellant, v St. Clare’s Hospital, Respondent, et al., Defendants.
    Decided September 9, 1993

      APPEARANCES OF COUNSEL

      Friedman & Manning, P. C., Delmar (Michael P. Friedman of counsel), for appellant.

      Maynard, O’Connor & Smith, Albany (Arete K. Sprio of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant hospital’s motion for summary judgment denied.

It is well settled that proponents of motions for summary judgment must establish the cause of action or defense sufficiently to warrant the court as a matter of law to direct judgment in their favor (CPLR 3212 [b]), and by evidentiary proof in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562). Defendant hospital failed to meet that standard. A question of fact exists as to whether breach of its duty to supervise, if there was such a breach, was the proximate cause of plaintiffs injury.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum; Judge Levine 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 reversed, etc.


text:
    In the Matter of Harvey O. Booth, Respondent, v Lee Clary, as Judge of the County Court of Jefferson County, Respondent, and James T. King, as District Attorney of Jefferson County, Appellant.
    Submitted July 12, 1993;
    decided September 9, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.

Judge Levine taking no part.


text:
    Patricia Bowman, as Limited Administratrix of the Estate of Robert E. Johnson, Deceased, Appellant, v James Campbell, as Sheriff of the County of Albany, et al., Respondents.
    Submitted July 19, 1993;
    decided September 9, 1993
   Motion, insofar as it seeks leave to appeal as against defendant Sheriff, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    In the Matter of Correction Officers’ Benevolent Association, Appellant, v New York City Office of Labor Relations et al., Respondents.
    Submitted June 28, 1993;
    decided September 9, 1993
   Motion for reargument granted [see, 81 NY2d 988] and, upon reargument, order dismissing motion for leave to appeal upon the ground that the motion was not timely made vacated, and motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).

Judge Levine taking no part.


text:
    In the Matter of Melvin M. Lebetkin, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted July 26, 1993;
    decided September 9, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of March 22, 1993, dismissed upon the ground that as to that order movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]); motion, insofar as it seeks leave to appeal from the Appellate Division order of June 4, 1993, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution.

Judge Levine taking no part.


text:
    Beverly D. McGovern, as Administratrix of the Estate of Stanley Getz, Deceased, Respondent, v Monica Getz, Appellant.
    Submitted June 14, 1993;
    decided September 9, 1993
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order, insofar as appealed from, does not finally determine the action within the meaning of the Constitution. An order denying a motion to vacate or modify a prior judgment or order is nonfinal (see, Cohen and Karger, Powers of the New York Court of Appeals § 36), as is an order which merely enforces the terms of a prior judgment or order (see, Cohen and Karger, Powers of the New York Court of Appeals § 43).

Judge Levine taking no part.


text:
    The People of the State of New York, Respondent, v James Burgess, Appellant.
    Submitted August 9, 1993;
    decided September 9, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).

Judge Levine taking no part.


text:
    In the Matter of Saul Radow and Helaine Brick, Attorneys, Appellants. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted August 9, 1993;
    decided September 9, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).

Judge Levine taking no part.


text:
    In the Matter of Benjamin Sneed, Appellant.
    Submitted August 2, 1993;
    decided September 9, 1993
   Motion to vacate this Court’s June 14, 1993 order of dismissal denied. [See, 81 NY2d 1068.]

Judges Smith and Levine taking no part.


text:
    Teeple Farms, Inc., Respondent, v Larry LaValley et al., Appellants.
    Submitted June 1, 1993;
    decided September 9, 1993
   Motion, insofar as it seeks leave to appeal on behalf of defendant Hance and defendant Ranke, dismissed upon the ground that movants Hance and Ranke are not parties aggrieved (see, CPLR 5511); motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Levine taking no part.


text:
    [621 NE2d 692, 602 NYS2d 325]
    Victor Carrion et al., Respondents, v Orbit Messenger, Inc., Appellant, et al., Defendants.
    Decided September 14, 1993

      APPEARANCES OF COUNSEL

      O’Connor, O’Connor, Hintz & Deveney, Garden City (Robert E. O’Connor of counsel), for appellant.

      Simonson Hess & Leibowitz, P. C., New York City (Alan B. Leibowitz of counsel) for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is well settled that whether an operator of a delivery vehicle is an agent, potentially rendering the principal liable under the doctrine of respondeat superior, or is an independent contractor, is a question for the trier of fact (see, Johnson v R. T. K. Petroleum Co., 289 NY 101, rearg denied 289 NY 646; Bratt v Midland Asphalt Corp., 8 NY2d 963, 965). Here, plaintiffs’ pleadings allege that the driver of the truck worked exclusively for defendant, that he was required to use defendant’s name and forms when performing work for defendant and to return all defendant’s receipts and job tickets. Defendant supplied the truck driver with workers’ compensation insurance, paid him, on a weekly basis, 57% of defendant’s gross billings, and supplied him with a check cashing card, signed by defendant’s representative, on which he was described as an "employee”. Because plaintiffs have submitted sufficient proof to raise a question with respect to the nature of the relationship between the tortfeasor and his alleged principal, summary judgment is not warranted.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine 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 affirmed, etc.


text:
    Allstate Insurance Company, Appellant, v Aetna Casualty & Surety Company et al., Respondents.
    Submitted July 12, 1993;
    decided September 14, 1993
   Motion, insofar as it seeks leave to appeal as against defendant Friedman, dismissed upon the ground that as to that party, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Robert H. Codey, Appellant. Capital Cities, American Broadcasting Corp., Inc., Respondent.
    Decided September 14, 1993
   Reargument ordered and case set down for submission during the session of this Court commencing on October 5, 1993.


text:
    In the Matter of Edward M. Cooperman, a Suspended Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted July 5, 1993;
    decided September 14, 1993
   Motion for leave to appeal granted. Motion for a stay granted.

Chief Judge Kaye and Judge Levine taking no part.


text:
    East Thirteenth Street Community Association et al., Appellants, v New York State Urban Development Corporation, Respondent.
    Submitted September 7, 1993;
    decided September 14, 1993
   Appeal, insofar as taken from that part of the Appellate Division order entered April 8, 1993, which confirmed respondent’s determination and dismissed the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved, and insofar as taken from that part of the Appellate Division order entered April 8, 1993, which denied petitioners’ motion to add a respondent and amend the caption, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Levine taking no part.


text:
    Sondra Kaplan, Respondent, v Nessa Kaplan et al., Appellants.
    Decided September 14, 1993
   Reargument ordered and case set down for submission during the session of this Court commencing on October 5, 1993.


text:
    In the Matter of Darryl King, Respondent-Appellant, v New York State Division of Parole, Appellant-Respondent.
    Submitted July 19, 1993;
    decided September 14, 1993
   Motion by respondent for leave to appeal granted. Cross motion by petitioner, insofar as it seeks leave to appeal and vacatur of the stay, denied and, insofar as it seeks poor person relief, granted.


text:
    The People of the State of New York, Respondent, v Charles Glinton, Appellant.
    Submitted September 7, 1993;
    decided September 14, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the appeal taken as of right does not lie. The order of Supreme Court, New York County, appealed from is considered to be an order denying a motion for reargument of defendant’s motion pursuant to CPL 440.10 to vacate the judgment.


text:
    The People of the State of New York, Respondent, v Joseph Medina, Appellant.
    Submitted July 12, 1993;
    decided September 14, 1993
   On the Court’s own motion, appeal taken as of right dismissed, without costs, and motion for leave to appeal dismissed, each upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).


text:
    The People of the State of New York, Respondent, v George Wesley, Appellant.
    Submitted July 5, 1993;
    decided September 14, 1993
   Motion to vacate this Court’s June 28, 1993 order of dismissal granted. [See, 81 NY2d 1068.]

Judge Levine taking no part.


text:
    In the Matter of Benjamin Sneed, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted September 13, 1993;
    decided September 14, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).

Judge Smith taking no part.


text:
    25th Realty Associates, Appellant, v Dennis Griggs, Respondent.
    Submitted August 23, 1993;
    decided September 14, 1993
   On the Court’s own motion, stay granted by an Associate Justice of the Appellate Division vacated. Motion for leave to appeal denied.


text:
    In the Matter of New York Public Interest Research Group et al., Petitioners-Respondents, v David N. Dinkins, as Mayor of the City of New York, et al., Respondents-Appellants, and Elizabeth Holtzman, as Comptroller of the City of New York, et al., Respondents.
    Submitted July 19, 1993;
    decided September 14, 1993
   Motion by respondents-appellants for leave to appeal granted. Motion by petitioners to vacate stay denied.


text:
    [623 NE2d 1170, 603 NYS2d 820]
    The People of the State of New York, Respondent, v Antoinette Allen, Appellant.
    Argued September 2, 1993;
    decided October 7, 1993

      APPEARANCES OF COUNSEL

      Amy Donner, New York City, and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (David C. Wu, Steven J. Chananie and Pamela J. Lynam of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division dismissing the appeal to that Court should be reversed and the case remitted to that Court for the entry of the appropriate dispositional order.

Defendant’s plea allocution demonstrates a voluntary and intelligent waiver of her right to appeal from any and all rulings made by the trial court in connection with her case, including the negotiated sentence, which the court ultimately imposed (see, People v Moissett, 76 NY2d 909). Taken in context, the court’s statements that defendant was waiving her right to appeal from "anything that has happened up to this point” cannot be viewed as a limitation on the scope of defendant’s waiver, but rather as an indication that the waiver was intended to be all encompassing. Accordingly, there was no legal error in the Appellate Division’s refusal to consider defendant’s appellate claims regarding the purported excessiveness of her sentence (cf., People v Seaberg, 74 NY2d 1, 9 [a defendant may not effectively waive the right to appeal the legality of the sentence]).

However, the appropriate disposition in such instances is an affirmance of the judgment and sentence, not dismissal of the appeal (People v Callahan, 80 NY2d 273, 285).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur; Judge Levine taking no part.

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


text:
    [623 NE2d 1171, 603 NYS2d 821]
    John Savasta et al., Appellants, v 470 Newport Associates et al., Respondents.
    Argued August 31, 1993;
    decided October 7, 1993

      APPEARANCES OF COUNSEL

      Leonard W. Wagman, New York City, and Snow Becker Krauss P. C., New York City (Geri S. Krauss of counsel), for appellants.

      Bleakley Platt & Schmidt, White Plains (Timothy P. Coon of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs’ predecessors in interest sold a property containing two apartment buildings to defendant general partnership and took back a mortgage. Subsequently, the general partnership had difficulty in making its mortgage payments to plaintiffs. For consenting to the refinancing of the mortgage, plaintiffs were made limited partners with a 20% interest in the partnership’s profits. Under the partnership agreement, plaintiff limited partners’ interest was to terminate on January 31, 1985. At the center of this dispute is paragraph 4 of the partnership agreement, which provided that "should the partnership prior to January 31, 1985, dispose of [the property] by sale or otherwise * * * then this partnership shall terminate upon any partner hereto giving written notice to that effect to the other partners.” The agreement was silent with respect to the period within which the written notice was to be served.

In November 1982, the general partnership created a corporation and transferred its sole asset, the apartment complex, to the corporation and converted the property to cooperative apartments. At the closing, defendant general partners paid in full the original mortgage held by plaintiffs. Then or shortly thereafter, the corporation sold approximately 20% of the cooperative shares to individual apartment owners.

Plaintiff limited partners, however, did not give notice to terminate the partnership at that time. Indeed, on March 3, 1983, they accepted $45,073.32 as the full amount the general partners owed them as of that date, representing their 20% share of the partnership profits, including their share of the proceeds from the sale of the cooperative apartments. For the next 18 months, the limited partners accepted, without objection, monthly payments of their 20% share of the partnership profits. Finally, on September 6, 1984 (about 22 months after the alleged "disposition”), they sent the general partners a purported notice of termination of the limited partnership. Even then, they continued to accept monthly payments from the general partners until January 31, 1985 when the limited partnership terminated pursuant to its terms.

When a contract does not specify time of performance, the law implies a reasonable time (Webster’s Red Seal Publs. v Gilberton World-Wide Publs., 67 AD2d 339, 343, affd 53 NY2d 643). What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case (Ben Zev v Merman, 73 NY2d 781, 783). In the present case the Appellate Division concluded that in light of all the circumstances, plaintiffs’ 22-month delay before seeking termination of the partnership was unreasonable. We agree with that determination, and accordingly, even if plaintiffs are correct that the cooperative conversion triggered the right to terminate under paragraph 4 of the partnership agreement, they would be entitled to no relief because of their unreasonable delay in exercising that right.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur; Judge Levine taking no part.

Order affirmed, with costs, in a memorandum.


text:
    [624 NE2d 673, 604 NYS2d 536]
    In the Matter of Fraydun Manocherian, Respondent, v Tax Commission of the City of New York et al., Appellants.
    Argued September 1, 1993;
    decided October 7, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Patricia E. LaFreniere, Edith I. Spivack, Joseph I. Lauer and Reed G. Schneider of counsel), for appellants.

      Sonnenschein, Sherman & Deutsch, New York City (Irving Sonnenschein, Alex Deutsch and Martin J. Friedman of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, petitioner’s motion for partial summary judgment denied, and certified question answered in the negative for the reasons stated in the dissenting memorandum by Justice Joseph P. Sullivan at the Appellate Division (185 AD2d 778, 778-784).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith. Taking no part: Judge Levine.


text:
    [624 NE2d 175, 603 NYS2d 991]
    Bernard M. Bloom, as Kings County Surrogate, et al., Appellants, v Matthew T. Crosson, as Chief Administrator of the Courts of the State of New York, Respondent, et al., Defendant.
    Argued September 2, 1993;
    decided October 7, 1993

      APPEARANCES OF COUNSEL

      Cahn Wishod Wishod & Lamb, Melville (Richard C. Cahn, Eugene L. Wishod, Scott M. Karson, Frederick Eisenbud and Howard M. Miller of counsel), for appellants.

      Michael Colodner, New York City, and John Eiseman, Stephen E. Gross, Lawrence K. Marks and Kenneth Falk for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the negative for the reasons stated in the opinion by Justice A. Franklin Mahoney at the Appellate Division (183 AD2d 341).

Concur: Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith. Taking no part: Chief Judge Kaye and Judge Levine.


text:
    [623 NE2d 1173, 603 NYS2d 823]
    In the Matter of Board of Education of the Greenburgh Central School District No. 7, Respondent, v Greenburgh Teachers Federation, Local 1788 of the American Federation of Teachers, AFL-CIO, Appellant.
    Argued September 7, 1993;
    decided October 7, 1993

      APPEARANCES OF COUNSEL

      Conrad W. Lower, New York City, James J. Brady and James R. Sandner for appellant.

      Bacharach, Green & Bass, P. C, White Plains (Arnold B. Green and Giacchino J. Russo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the CPLR article 75 petition dismissed and the arbitration award confirmed.

The issue presented on leave to appeal granted by this Court is whether the public policy reflected in a 1986 amendment to Education Law § 1711 should apply to the 1988 arbitral resolution of a dispute under a 1985 collective bargaining agreement.

The Greenburgh Board of Education failed to consider seniority in transferring a teacher to a different grade level position. Though the 1985 collective bargaining agreement required consideration of that factor, public policy at that time forbade delegation of the transfer to negotiation between the parties (see, Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn., 58 NY2d 912). The arbitrator’s award in 1988 gave effect to the pertinent provision of the agreement and ordered the return of the teacher to her kindergarten class. By that time, the Legislature had nullified the public policy reflected in the Sweet Home case (see, Matter of Board of Educ. v Arlington Teachers Assn., 78 NY2d 33).

The School Board’s argument characterized as nonretroactivity of the amended Education Law § 1711 is unavailing, since the issue is not retroactivity of a statute, but instead application of new and extant public policy. Controversies of this kind should be decided on the basis of public policy operative at the time of decision (Matter of Board of Trustees [Maplewood Teachers’ Assn.], 57 NY2d 1025, 1027; Matter of Hodes v Axelrod, 56 NY2d 930, 932). The arbitrator’s award in this case is consistent with Education Law § 1711, as amended, and the award reflects current public policy, which states: "the power and duties of superintendents of schools with regard to the transfer of teachers may be modified by an agreement negotiated pursuant to the provisions of the civil service law” (L 1986, ch 843, § 1 [legislative intent]).

Finally, the School Board’s argument that the arbitrator’s award was irrational is without merit.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum; Judge Levine taking no part.

Order reversed, etc.


text:
    Robert L. Schulz et al., Appellants, v State of New York et al., Respondents.
    Submitted October 5, 1993;
    decided October 7, 1993
   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 and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Joseph Adams, Appellant.
    Submitted September 7, 1993;
    decided October 7, 1993
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of the Appellate Division denying an application for a writ of error coram nobis (CPL 450.90).


text:
    The People of the State of New York, Respondent, v Quillar Nealy, Appellant.
    Submitted September 20, 1993;
    decided October 7, 1993
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of the Appellate Division denying a request for an extension of time within which to apply for permission to appeal to that Court pursuant to CPL 460.30.


text:
    [624 NE2d 674, 604 NYS2d 537]
    The People of the State of New York, Respondent, v Robert Oeller, Appellant.
    Decided October 12, 1993

      APPEARANCES OF COUNSEL

      JoJo Annobil, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Elizabeth R. Nochlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

This defendant’s appeal, allowed by permission of a dissenting Associate Justice of the Appellate Division, implicates the issue whether police officers reasonably believed that defendant had committed or was committing a crime, giving them the right to forcibly stop and detain him. The trial court and the Appellate Division denied defendant’s motion to suppress vials of crack cocaine which the police recovered from his hand and subsequently found in his coat pockets.

As with People v Madera (82 NY2d 775 [decided today]), the legal standard is not at issue in this case, but only its application under the facts. Thus, the question for this Court’s review is limited to whether the determination of the mixed question of law and fact — the police officers’ reasonable suspicion that criminality was afoot to support their forcible stop and detention of defendant — is supported by this record (see, People v Harrison, 57 NY2d 470, 477). Since it is, this Court’s review is concluded and the order of the Appellate Division must be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine concur.

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


text:
    [624 NE2d 675, 604 NYS2d 538]
    The People of the State of New York, Appellant, v Ali Madera, Also Known as Alberto Rivera, Respondent.
    Decided October 12, 1993

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County (Daniel S. Ratner of counsel), for appellant.

      Steven J. Miraglia, New York City, and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

This People’s appeal, allowed by permission of a dissenting Associate Justice of the Appellate Division, implicates the issue whether police officers reasonably believed that defendant was engaging in criminal activity, justifying their pursuit and detention of him on a New York City street. The trial court and the Appellate Division suppressed the weapon ultimately recovered after the street chase and apprehension of defendant.

The legal standard is not at issue, but only its application to undisputed facts. Thus, the threshold question for this Court’s review is limited to whether the determination of the mixed question of law and fact — lack of reasonable suspicion of criminality to support the police officers’ belief for the pursuit action undertaken — is supported by this record (see, People v Harrison, 57 NY2d 470, 477). Since it is, this Court’s review is concluded and the order of the Appellate Division must be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine concur.

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


text:
    In the Matter of William A. Brenner, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted August 16, 1993;
    decided October 12, 1993
   Motion to vacate this Court’s June 28, 1993 order of dismissal denied [see, 81 NY2d 1068]. On the Court’s own motion, appeal taken from the March 5, 1993 Appellate Division order dismissed, without costs, and motion for leave to appeal taken from such order dismissed, each upon the ground that no appeal lies because a prior appeal from the March 5, 1993 Appellate Division order was dismissed for failure to prosecute (see, Bray v Cox, 38 NY2d 350). On the Court’s own motion, appeal taken from the June 1, 1993 and June 30, 1993 Appellate Division orders dismissed, without costs, and motion for leave to appeal taken from such orders dismissed, each upon the ground that the orders do not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.

Judge Levine taking no part.


text:
    Shine, Julianelle, Karp, Bozelko & Karazin, P. C., Respondent, v Richard Rubens et al., Appellants.
    Submitted August 2, 1993;
    decided October 12, 1993
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that no substantial constitutional question is directly involved.


text:
    Violet M. Terio, Respondent, v Vincent Terio, Appellant.
    Submitted June 14, 1993;
    decided October 12, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed the denial of defendant’s motion to vacate the judgment of divorce, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    In the Matter of Richard Vasquez, Appellant, et al., Petitioners, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Submitted August 30, 1993;
    decided October 12, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Richard Vasquez et al., Petitioners, and Milton Pacheco, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Submitted July 26, 1993;
    decided October 12, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    [624 NE2d 676, 604 NYS2d 539]
    Kathleen L. Putrino, as Administratrix of the Estate of Carmin R. Putrino, Deceased, Appellant, v Buffalo Athletic Club, Respondent.
    Decided October 14, 1993

      APPEARANCES OF COUNSEL

      Weissfeld, Weissfeld & Weissfeld, Buffalo (Richard Weissfeld of counsel), for appellant.

      Lustig & Brown, Buffalo (John A. Ziegler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Plaintiff put forth no evidence that defendant’s aerobics classroom is a "place of public assembly” subject to statutory liability under Labor Law § 470. Moreover, even if the entire facility were shown to be a "place of public assembly”, the liability imposed is merely a codification of common law and the claim is no more viable than plaintiff’s other claims (Rickard v Farmers’ Museum, 284 App Div 140, 142). With respect to each of her common-law negligence causes of action, plaintiff failed to introduce admissible evidence establishing a triable issue of fact sufficient to preclude summary judgment. At best, plaintiff put forth the opinions of medical and health club experts which are conclusory and, therefore, inadequate to counter a summary judgment motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-534, n 2). Accordingly, the Appellate Division correctly modified the order of Supreme Court by granting summary judgment dismissing all of plaintiff’s claims.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine 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:
    [624 NE2d 677, 604 NYS2d 540]
    Ronald C. Smith et al., Respondents, v New York State Electric & Gas Corporation, Appellant, et al., Defendants.
    Decided October 14, 1993

      APPEARANCES OF COUNSEL

      Kathleen C. Sassani, Syracuse, for appellant.

      John W. Young, Binghamton, and Alfred Paniccia, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s cross motion for partial summary judgment dismissing plaintiffs’ Labor Law § 240 (1) cause of action granted, and the certified question answered in the affirmative.

Plaintiff was injured while dismantling a coal conveyer system located in a subterranean concrete vault. The dismantled machinery was removed from the underground work area by a crane situated at ground level with its cable lowered through an opening in the vault’s ceiling. A 200-pound metal tension ball attached to the cable allowed the dismantled machinery to be dragged along the concrete floor until it could be hoisted to ground level. Plaintiff’s injury occurred when equipment snagged on the vault floor’s uneven surface and the crane operator, unaware of the situation, continued to exert tension on the cable until it snapped, propelling the tension ball against plaintiff.

The Appellate Division, with one Justice dissenting, modified an order of Supreme Court by reversing so much thereof as granted defendants’ cross motion for partial summary judgment dismissing plaintiffs’ Labor Law § 240 (1) cause of action. That Court concluded that plaintiffs’ section 240 (1) claim was viable because the work activity plaintiff was engaged in exposed him to risks associated with elevation differentials. Based on our holdings in Rocovich v Consolidated Edison Co. (78 NY2d 509) and Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494), we disagree and hold that plaintiff’s injury did not result from an elevation-related hazard.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine 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:
    [624 NE2d 678, 604 NYS2d 541]
    In the Matter of the Town of Huntington, Respondent, v New York State Division of Human Rights, Appellant, et al., Respondent.
    Argued September 7, 1993;
    decided October 14, 1993

      APPEARANCES OF COUNSEL

      Sara Toll East, New York City, and Lawrence Kunin for appellant.

      Roberts & Finger, New York City (Thomas C. Greble and Andrew P. Marks of counsel), for Town of Huntington, respondent.

      Nancy E. Hoffman, Albany, William A. Herbert and Miguel Ortiz for Civil Service Employees Association, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The extraordinary writ of prohibition does not lie to prevent the Division of Human Rights from considering an individual’s complaint of racial discrimination.

In March 1986 petitioner Town of Huntington (hereafter Town) hired respondent Charles Reed, an African American male, as a sign inspector, which is a competitive class civil service title. In April 1987, Reed was suspended pending an investigation into charges of incompetence and misconduct. By notice, pursuant to Civil Service Law § 75, he was charged with, inter alla, incompetence, misconduct, insubordination and improper use of equipment. Reed denied these charges.

At a section 75 hearing, Reed responded affirmatively to the question whether he believed the charges against him were racially motivated. Reed stated that he was harassed and his director used racial epithets in reference to him. The Hearing Officer, Thomas Mazzola, concluded that Reed was guilty of several of the charges but recommended a lenient penalty. Mazzola found no substantial evidence or testimony to validate Reed’s claim of racial discrimination, notwithstanding a witness’ claim that he heard the director use racial epithets in describing Reed.

Two Town officials, John O’Neill and Lisa M. Baisley, subsequently reviewed Mazzola’s findings and recommendations and issued decisions. Reed commenced a successful CPLR article 78 proceeding annulling O’Neill’s determination because O’Neill had not been duly appointed by the Town Board. The Town Board then appointed Baisley to review the records and her decision dismissing Reed was upheld by the Appellate Division upon Reed’s challenge (see, Matter of Reed v Town of Huntington, 186 AD2d 745).

Reed filed a complaint with the State Division of Human Rights on August 12, 1987, charging the Town with "discrimination in employment, by denying [him] equal terms, conditions and privileges of employment, because of [his] race and color”, thus violating New York’s Human Rights Law.

The Town commenced an article 78 proceeding on November 20, 1989, by writ of prohibition, seeking an order staying the Division from investigating and adjudicating Reed’s complaint. Supreme Court (1) denied the Town’s stay request for prohibition, holding that the writ was not applicable here, where there was no showing that the Division threatened to act beyond its jurisdiction, and (2) granted the Division’s cross motion to dismiss the proceeding.

The Appellate Division reversed, granted the petition, prohibited the Division from considering Reed’s complaint, and determined that respondents were collaterally estopped from litigating the discrimination claim. The Court concluded that Reed "vigorously presented his claim of discrimination in the civil service proceeding” and that his allegations in that proceeding were "essentially” the same as those he seeks to offer before the Division (181 AD2d 827, 828). We granted leave to appeal.

The extraordinary writ of prohibition is available to address "whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803 [2]). "Prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction * * * and then only when the clear legal right to relief appears and, in the court’s discretion, the remedy is warranted” (see, Matter of Schumer v Holtzman, 60 NY2d 46, 51). The writ is generally not available to correct common procedural or substantive errors (Matter of Holtzman v Goldman, 71 NY2d 564, 569; Matter of Rush v Mordue, 68 NY2d 348, 353; Matter of State of New York v King, 36 NY2d 59, 62), and will not lie where its proponent has access to another adequate legal remedy (id., at 62; Matter of Rush v Mordue, supra, at 353) unless, in the rare instance, it "would furnish a more complete and efficacious remedy” (see, La Rocca v Lane, 37 NY2d 575, 579-580, cert denied 424 US 968). But even where the writ may be technically appropriate, the court must consider other factors such as the gravity of the potential harm caused by the threatened excess of power or whether other proceedings in law or equity could correct the flaw, in determining whether a proponent’s request should ultimately be granted (id., at 579).

On this record, the Appellate Division erred by granting the Town’s petition seeking prohibition. Moreover, it is unquestioned that here the Division maintains jurisdiction to investigate and pass upon claims of discrimination (see, Executive Law § 295 [6] [a]). The Town has failed to establish a "clear legal right” to the relief it seeks, and argues that after the Division rejected its motion to dismiss on the grounds of collateral estoppel, this article 78 proceeding was its only viable remedy. The Town will suffer no irreparable harm, however, by waiting to challenge the Division’s findings, if necessary, on the merits after the Division investigates Reed’s complaint.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum; Judge Levine taking no part.

Order reversed, etc.


text:
    [624 NE2d 686, 604 NYS2d 549]
    Phyllis Cafiero et al., Appellants, v Inserra Supermarkets, Inc., Doing Business as Shoprite of Haverstraw, Respondent.
    Decided October 14, 1993

      APPEARANCES OF COUNSEL

      Jeffery M. Adams, New City, for appellants.

      O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Montgomery L. Effnger of counsel), 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 of the Appellate Division (195 AD2d 681).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine.


text:
    In the Matter of Aetna Casualty and Surety Company, Respondent, v Lance M. Freed et al., Appellants.
    Submitted July 19, 1993;
    decided October 14, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed Supreme Court’s order vacating the arbitration award and remitting the matter to the arbitrator, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Federal Resources Corporation et al., Appellants, v BT Commercial Corporation, Respondent.
    Submitted July 26, 1993;
    decided October 14, 1993
   Motion by plaintiffs Bentley J. Blum and Paul E. Hannesson for leave to appeal dismissed upon the ground that as to these parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by plaintiff Federal Resources Corporation, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the denial of reargument and renewal, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Smith taking no part.


text:
    Herzfeld & Stern, Inc., Plaintiff, v Warren Beck, Defendant. (Action No. 1.) Warren Beck, Appellant, v Herzfeld & Stern, Inc., Respondent. (Action No. 2.)
    Submitted July 26, 1993;
    decided October 14, 1993
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution and that the "so ordered” stipulation does not qualify as a final judgment because it was entered into "without prejudice.”

Judge Smith taking no part.


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Carol E. Huff et al., Respondents. In the Matter of Shahsultan Jaffer, Appellant, v Walter M. Schackman et al., Respondents.
    Submitted August 2, 1993;
    decided October 14, 1993
   Motion, insofar as it seeks leave to appeal in Matter of Jaffer v Huff from that portion of the Appellate Division order which denied the motion to disqualify counsel, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal in Matter of Jaffer v Huff otherwise denied. Motion, insofar as it seeks leave to appeal in Matter of Jaffer v Schackman from that portion of the Appellate Division order which dismissed the petition, denied; motion for leave to appeal in Matter of Jaffer v Schackman otherwise dismissed upon the ground that the remaining portions of the order sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for reconsideration of this Court’s July 9, 1993 order of dismissal in Matter of Jaffer v Huff denied. [See, 82 NY2d 702.] Motion for reconsideration of this Court’s July 9, 1993 order of dismissal in Matter of Jaffer v Schackman denied. [See, 82 NY2d 702.]


text:
    In the Matter of Xiox Corporation, Appellant, v Public Service Commission of the State of New York et al., Respondents.
    Submitted July 19, 1993;
    decided October 14, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.

Judge Hancock, Jr., taking no part.