text:
    Kerwyn Farkas, Appellant, v Cedarhurst Natural Food Shoppe, Inc., Respondent.
    Argued March 25, 1977;
    decided April 28, 1977

      David Dean and John P. Flaherty, Jr., for appellant.

      Charles S. Hefter and Martin Rosen for respondent.
   Memorandum. The order of the Appellate Division granting summary judgment dismissing the complaint should be affirmed, with costs.

Plaintiff fell when climbing on what is described as a "display shelf’ to reach an electrical fixture in the ceiling. No admissible proof is tendered that the use of the display shelf for climbing was "reasonably to be perceived” (Basso v Miller, 40 NY2d 233, 241). There is no suggestion that anyone had previously climbed on the shelf. If we were to assume that Christine Noto, defendant’s employee, had authority to request plaintiff to repair the loose light fixture, the only proof is that she furnished a stepladder so that plaintiff could climb onto a display counter. Once there, he found his reach was a few inches short of the fixture. He then mounted a cash register which was on the counter but he still could not reach the fixture. It was only then that he put his foot on the display shelf adjacent to the counter. There is no proof whatever that this last movement was contemplated or in any way foreseeable. Additionally, at plaintiff’s request Christine Noto had gone for a screwdriver and was not even present when plaintiff moved to the display shelf.

In these circumstances there is no proof on which to predicate a claim of negligence.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Enid Bayne, Appellant, v Alice Sachs et al., Constituting the Board of Elections of the City of New York, Respondents, and Katherine Wells et al., Respondents.
    Argued April 26, 1977;
    decided April 28, 1977

      A. Michael Weber for appellant.

      John F. Zulack for Katherine Wells and Sonia Witten, respondents.
   Order affirmed, without costs, on the memorandum at the Appellate Division (see, also, Matter of De Bruin v McGee, 40 NY2d 909; Matter of Flanagan v Schwartz, 40 NY2d 910; Matter of White v McNab, 40 NY2d 912).

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


text:
    In the Matter of Scarsdale Chateaux RTN, Appellant, v Murray Steyer et al., Constituting the Board of Trustees of the Village of Scarsdale, Respondents. (And Seven Other Proceedings.)
    Argued March 24, 1977;
    decided April 28, 1977

      Douglas W. Anderson for appellants.

      John F. Holden, Jr., Village Attorney (Henry J. Smith and Gerald Nolan of counsel), for respondents.
   Memorandum. The order of the Appellate Division should be affirmed, with costs.

Appellants, bearing the concededly heavy burden of establishing the invalidity of the special assessment against their properties, essentially advance but a single contention on this appeal—that the municipal parking facility constructed by the Village of Scarsdale was of no special benefit to their properties as a matter of law. We reject this contention.

Petitioners-appellants are the owners of properties now used for commercial parking lots and the retail sale of gasoline, all located within the benefit district, an area comprising substantially all the commercial properties in the business district adjacent to the village railroad station. The village board of trustees determined that the properties assessed would be benefited by the construction of a parking garage, in the immediate vicinity of the station, to provide spaces for approximately 500 automobiles. This determination was made only after investigation and deliberate consideration over several years of reports, surveys and analyses of the project prepared and conducted at the instance and on behalf of the board, supplemented by the peculiar knowledge of local conditions possessed by the individual board members. All related to the desirability of more adequate parking facilities in the business district close by the railroad station; most laid emphasis on the advantages which would accrue to the business district itself if additional provision were made for short-term parking in the area. Recognition was given to the historical shortage of parking space and to the needs for worker parking, shopper parking, and client and patient parking. The board made express findings that the property within the assessment district would be particularly benefited by the improvement.

It does not follow, because (as Special Term found and as appellants urge but as was questioned at the Appellate Division) the primary purpose of the new garage was to provide parking for commuter convenience, that appellants’ properties did not receive a concomitant if perhaps secondary but significant special benefit. New parking spaces would be created and existing short-term public parking would be opened up. The attraction of more parkers of whatever character, including commuters, could scarcely be said to be a disadvantage.

Nor would it be determinative that, as appears to have been the case, with the advent of more parking, receipts from rental of appellants’ commercial parking lots fell off. The value of their properties for other commercial uses, after taking into account zoning requirements that off-street parking be provided, could certainly be expected to be enhanced by the availability and convenience of substantially more public parking accommodations.

In short, we cannot conclude, as a matter of law, that appellants’ properties were not benefited by the construction of the new municipal garage to a significantly greater extent than was the Village of Scarsdale as a whole.

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

Order affirmed.


text:
    In the Matter of the Arbitration between The Perkins & Will Partnership, Appellant, and Syska and Hennessy et al., Respondents. (And Another Proceeding.)
    Argued March 23, 1977;
    decided April 28, 1977

      Joseph A. Bergadano and Barbara Wesley Thompson for appellant.

      Marc S. Krieg and Joseph S. Kaming for Syska and Hennessy, respondent.

      Thomas Toohey and Richard Bakalor for Garfinkel, Marenberg & Associates, respondent.

      Louis H. Willenken for Walter Kidde Constructors, Inc., respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

The agreements between the architect and the structural engineers and mechanical engineers respectively did not contain a "broad arbitration clause” calling for the arbitration of all disputes. Quite to the contrary, Paragraph 15 of each agreement specifically covered disputes of the type presently at issue by providing that "[a]ny decision or determination resulting from arbitration between the Architect and the Owner which relates to the Consultant’s services [referring to either the structural or mechanical engineers] shall be binding upon the Consultant, provided that the Consultant has been afforded the opportunity to participate in the arbitration.” The paragraph went on to declare that any other disputes were subject to arbitration as outlined in the agreement.

As we observed in Nationwide Gen. Ins. Co. v Investors Ins. Co. of Amer. (37 NY2d 91, 95), "[generally it is for the courts to make the initial determination as to whether the dispute is arbitrable, that is 'whether the parties have agreed to arbitrate the particular dispute’ ” (quoting Steelworkers v American Mfg. Co., 363 US 564, 570-571). Under the agreements in issue in the case now before us, the Appellate Division was correct in its determination that the respondents had not agreed to submit this dispute to arbitration and that the architect’s exclusive remedy was to vouch in the engineers in the on-going arbitration between the owner and the architect.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Patricia Walker, Individually and on Behalf of Her Two Minor Children, Respondent, v Abe La vine, as Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent.
    Argued March 24, 1977;
    decided April 28, 1977

      Louis J. Lefkowitz, Attorney-General (Joseph F. Wagner and Samuel A. Hirshowitz of counsel), for appellant.

      Ira S. Schneider and Arthur C. Snitjer for respondent.
   Judgment affirmed, with costs, on the opinion by Mr. Justice Theodore R. Kupferman at the Appellate Division (52 AD2d 303).

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


text:
    In the Matter of Adele Nobles et al., Respondents, v Dolores S. Grant, Appellant, and Joseph J. Previte et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 27, 1977;
    decided April 28, 1977

      Paul H. Janis and James R. Sandner for appellant.

      Lawrence A. Mandelker for petitioners-respondents.
   Order affirmed, without costs, on the memorandum at the Appellate Division.

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


text:
    In the Matter of Mark Shaplo et al., Respondents, v Irving Kizner, Appellant, and Joseph J. Previte et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 27, 1977;
    decided April 28, 1977

      Paul H. Janis and James R. Sandner for appellant.

      Lawrence A. Mandelker for petitioners-respondents.
   Order affirmed, without costs, on the memorandum at the Appellate Division.

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


text:
    The People of the State of New York, Appellant, v Long Island Lighting Company, Respondent.
    Argued March 25, 1977;
    decided April 28, 1977

      Henry F. O'Brien, District Attorney (Simon Perchik of counsel), for appellant.

      Calvin E. Rafuse, Jr., and Edward M. Barrett for respondent.

      Louis J. Lefkowitz, Attorney-General (Ezra I. Bialik and Philip Weinberg of counsel), amicus curiae.

   Order affirmed on the memorandum at the Appellate Term (88 Misc 2d 123).

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


text:
    In the Matter of Allen Cappellazzi, Appellant, v John Toto, Respondent, and Alice Sachs et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 27, 1977;
    decided April 28, 1977

      Paul H. Janis and James R. Sandner for appellant.

      Lawrence A. Mandelker for John R. Toto, respondent.
   Order affirmed, without costs, on the memorandum at the Appellate Division.

Concur: Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke. Judges Jasen and Fuchsberg dissent and vote to reverse and remit the matter to the Appellate Division for review of the facts in the following memorandum: The objectors were properly before the court (Matter of Lamula v Power, 13 NY2d 873). Citizen-objector Joan Reed was the co-objectant in the petition filed by objector respondent John Toto. Their joint petition to invalidate the appellant’s nominating petition was heard at the same time as appellant’s petition to validate. In the present proceeding the same attorney who had represented the two objectors on the petition to invalidate appeared for Toto. Clearly Reed’s position, as a practical matter, was fully reflected by Toto with whom she had been joined in interest. These circumstances are different from those in Matter of Butler v Hayduk (37 NY2d 497), where there was only one citizen-objector and where, since only the board of elections was served, the citizen-objector interest was totally unrepresented. In contrast, Reed’s co-objector was served, appeared at the hearing and argued the merits of their mutual objections. There is no question that all of the objections contained in the joint petition were adequately raised and briefed and considered on the merits. Under these circumstances, the failure to serve one of the two joint objectors was a mere irregularity.


text:
    In the Matter of Nina Kane, on Her Own Behalf and on Behalf of All Others Similarly Situated, Appellant, v Henry G. Parry, Jr., as Commissioner of the Orange County Department of Social Services, et al., Respondents.
    Argued April 25, 1977;
    decided April 28, 1977

      Philip M. Gassel and Lawrence Alexander for appellants.

      Louis J. Lefkowitz, Attorney-General (Peter A. Berkowsky, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for Abe Lavine, Commissioner of the New York State Department of Social Services, respondent.
   Order reversed, with costs, and the judgment of Supreme Court, Orange County, reinstated on the opinion by Mr. Justice John W. Sweeny at Special Term and the dissenting memorandum by Mr. Justice James D. Hopkins at the Appellate Division. In the interests of administrative and judicial economy the better discretion would have been to proceed expeditiously with the fair hearings.

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


text:
    In the Matter of Judith Habas, Respondent, v Lionel Habas, Appellant.
    Decided April 28, 1977
    Reported below, 56 AD2d 747.
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1).


text:
    In the Matter of Clara Heisler, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted April 18, 1977;
    decided April 28, 1977
    Reported below, 56 AD2d 869.
   Motion for stay of enforcement of subpoena issued October 21, 1976 and of Appellate Division order entered March 14, 1977 granted.


text:
    In the Matter of Nina Kane, on Her Own Behalf and on Behalf of All Others Similarly Situated, Appellant, v Henry G. Parry, Jr., as Commissioner of the Orange County Department of Social Services, et al., Respondents. In the Matter of Minette Boerum, Appellant, v Henry G. Parry, Jr., as Commissioner of the Orange County Department of Social Services, et al., Respondents.

      Submitted April 11, 1977;
    decided April 28, 1977
    Reported below, 55 AD2d 678.
   Motion to dismiss the appeals herein for mootness denied.


text:
    In the Matter of Windsor Park Nursing Home, Appellant, v Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent.
    Submitted April 18, 1977;
    decided April 28, 1977
    Reported below, 56 AD2d 872.
   Motion for stay of enforcement of subpoena issued October 15, 1976 and of Appellate Division order entered March 14, 1977 granted.


text:
    In the Matter of Martin Dilan, Appellant, v Nancy Carulli, Respondent, and Joseph J. Previte et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued April 29, 1977;
    decided April 29, 1977

      Arnold Ludwig and Carl D. Bernstein for appellant.

      Skip Short for Nancy Carulli, respondent.
   Order affirmed, without costs, on the memorandum at the Appellate Division.

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


text:
    Anton Notey, Appellant, v Darien Construction Corp., Respondent, et al., Defendants.
    Submitted March 29, 1977;
    decided May 3, 1977

      Alan Manning Miller for appellant.

      Arnold J. Hauptman for respondent.
   Memorandum. Order affirmed, with costs. An action to foreclose a mortgage is, of course, in equity (Jamaica Sav. Bank v M. S. Investing Co., 274 NY 215, 219). A court of equity has broad power to control the execution of its own judgments, and, at least when only the rights of the parties to the action are involved, an order granting a resale rests within the discretion of the courts below, especially when a number of conceded irregularities occurred (Fisher v Hersey, 78 NY 387, 388-389; see Emigrant Ind. Sav. Bank v Van Bokkelen, 269 NY 110, 115). Moreover, subdivision 6 of section 231 of Real Property Actions and Proceedings Law now explicitly recognizes discretionary power of a court to set aside a foreclosure sale whenever there has been a failure to comply with the statutory notice provisions, and a substantial right of a party has been prejudiced. Since it is concluded that there was no abuse of discretion as a matter of law, the order is not subject to this court’s review, and must be affirmed.

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

Order affirmed.


text:
    In the Matter of Lillian F. Lyon. Elsie O. Hanson, Respondent; John R. Lyon, Appellant.
    Argued March 30, 1977;
    decided May 3, 1977

      Stanley Geller and William J. Butler for appellant.

      Charles E. Seidenstein for respondent.

      Samuel S. Slavitt for guardian ad litem for Lillian F. Lyon.
   Order affirmed, with costs payable to respondent out of the estate. Within the limited powers of review of this court, the order of the Appellate Division is affirmed on the memorandum of that court (52 AD2d 847).

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


text:
    Colonial Pipeline Company, Appellant, v State Board of Equalization and Assessment of the State of New York et al., Respondents.
    Argued March 30, 1977;
    decided May 3, 1977

      Jeffrey S. Cook, Frank A. Fritz and Alan M. Epstein for appellant.

      W. Bernard Richland, Corporation Counsel (Alfred Weinstein and L. Kevin Sheridan of counsel), for City of New York, respondent.

      Louis J. Lefkowitz, Attorney-General (Daniel Cohen, Samuel A. Hirshowitz and Jesse J. Fine of counsel), for State Board of Equalization and Assessment, respondent.
   Order affirmed, with costs, on the opinion by Mr. Justice Carmine A. Ventiera at Special Term.

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


text:
    In the Matter of County of Suffolk, Appellant-Respondent, Relative to Acquiring Title to Real Property for County Purposes in the Town of Babylon. A. Basil Griffith et al., Respondents-Appellants.
    Submitted March 22, 1977;
    decided May 3, 1977

      Howard E. Pachman, County Attorney (Henry G. Wenzel, III, of counsel), for appellant-respondent.

      Michael J. Goldstein for respondents-appellants.
   Memorandum. The order of the Appellate Division should be affirmed, without costs.

On the appeal by the county we observe that both the county and the claimants and their respective appraisers presented proof of valuation of the rear portion of the condemned premises, then zoned residential, on the predicate that there was a probability of a zoning change from residential to commercial. In this circumstance it was error on the part of the trial court, independently and on its own initiative, to depart from that hypothesis and to fix the value of the rear portion on the basis of residential zoning without increment for probable rezoning.

On claimants’ appeal we conclude that the Appellate Division did not err when in determining the value of the rear portion of the premises on the basis of a probability of zoning change it valued such portion at a different square-foot rate ($1.35) than the rate ($2.50) used by the trial court in valuing the front portion of the premises which was already zoned for commercial use.

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

Order affirmed.


text:
    Nancy H. Aridas, Appellant, v Charlene B. Caserta, an Infant, by Her Parent and Guardian, et al., Respondents.
    Argued March 28, 1977;
    decided May 3, 1977

      Robert F. Malerba for appellant.

      Patrick J. Purcell and Stephen A. Fritz for Charlene E. Caserta, respondent.

      Walter G. Evans and Alexander Orr for Elwood Union Free School District No. 1, respondent.

      John J. Stewart, Sr., John J. Stewart, Jr., and Edward L. Milde for Long Island Bus Co., Inc., respondent.
   Memorandum. Plaintiff’s appeal from so much of the order at the Appellate Division as severed the actions against defendants Charlene B. Caserta, the driver of the automobile that struck plaintiff, and Elwood Union Free School District No. 1 and granted a new trial of plaintiff’s claims against them should be dismissed on the court’s own motion, without costs, on the ground that that portion of the order does not finally determine the action within the meaning of the Constitution (NY Const, art VI, § 3, subd [a]; CPLR 5601, subd [a], par [ii]).

To the extent that the order of the Appellate Division reversed the judgment in favor of plaintiff against Long Island Bus Co., Inc., it should be affirmed, with costs to the bus company against plaintiff. The only theory advanced for the claim of negligence on the part of the bus company is predicated on the provisions of subdivision 20 of section 375 of the Vehicle and Traffic Law which require school bus drivers to keep warning lights flashing when passengers are being received or discharged. Even if it were to be assumed that this subdivision were applicable to the school bus standing in the driveway in front of the school buildings (cf. Vehicle and Traffic Law, § 300), a violation if any of this statute could not have been a substantial factor in bringing about plaintiffs injuries. Manifestly the statutory purpose in requiring flashing lights was to alert operators of approaching motor vehicles to the fact that pupils were boarding or alighting from the bus. In the circumstances of this case that fact was independently evident and any motor vehicle operator would have been chargeable with notice thereof irrespective of the absence of flashing signal lights on the bus. Additionally in this instance the driver of the automobile conceded that she had actual knowledge that the buses were loading.

Finally we observe that we cannot hold it to have been error that the Appellate Division chose, after dismissing defendants’ first appeal on the issue of liability for failure to prosecute, to entertain consideration of the same issue on the second appeal. Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made. We cannot say that the Appellate Division’s exercise of its reserved power in this instance was error as a matter of law (cf. Bray v Cox, 38 NY2d 350).

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

On plaintiffs appeal from so much of the order of the Appellate Division as severed the action against defendants Casería and school district and granted a new trial: Appeal dismissed, without costs.

On plaintiffs appeal from so much of the order of the Appellate Division as dismissed the complaint as against Long Island Bus Co., Inc.: Order affirmed, with costs to defendant Long Island Bus Co., Inc., against plaintiff.


author: Per Curiam.

text:
    In the Matter of Percy Johnson, Respondent, v Director, Downstate Medical Center, State University of New York, Appellant.
    Argued March 29, 1977;
    decided May 3, 1977

      Louis J. Lefkowitz, Attorney-General (Shirley A. Siegel, Samuel A. Hirshowitz and Jesse J. Fine of counsel), for appellant.

      William P. Volin and Stanley Mailman for respondent.
   Per Curiam.

We conclude that the portion of subdivision (d) of section 5.3 of the Rules and Regulations of the Department of Civil Service (4 NYCRR 5.3 [d]) on which Downstate Medical Center relied when it terminated petitioner’s employment is inconsistent with section 75 of the Civil Service Law and therefore invalid. In pertinent part the rule provides: "When an employee is absent without leave and without an explanation therefor for a period of 10 work days, such absence shall be deemed to constitute a resignation effective on the date of the commencement of such absence.”

Whatever may be its external formulation, in substance this rule provides that a certain type of venial dereliction of duty, if unexplained, will authorize an employer to terminate the employment of a temporary or permanent employee. In a general sense it appears to offer a means for summary, involuntary termination of employment based on nonperformance of duty. To the extent that its application may result in a discharge of the employee it may be said to parallel section 75 in purpose. But, as occurred in this instance, the employer is not required or expected to give any notice to the employee before, invoking the rule. This flies in the face of one of the mandates of section 75.

It cannot seriously be contended that rule 5.3 (d), at least as presently implemented, provides a separate and distinct procedure for termination of employment. We are informed that in practice if the employee tenders even an implausible excuse all proceedings under this rule abruptly and completely cease. Recourse is thereafter had to proceedings for removal or other disciplinary action under section 75, with its full panoply of procedural due process.

In our view the provisions of the statute preclude resort to the provisions of the rule (however vacuous it has become in practice) to terminate employment. To the extent that Matter of Dunn v Simon (16 AD2d 719, mot for lv to app den 11 NY2d 646) may be read as expressing inconsistent views it is disapproved.

In the light of the disposition of the appeal on this ground we do not reach or consider the constitutional issues so vigorously presented.

Finally we note our agreement with the Appellate Division that this article 78 proceeding was instituted before the expiration of the four-month period of limitations.

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

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

Order affirmed.


text:
    Virginia A. Smith, Appellant, v State of New York, Respondent.
    (Claim No. 58744.)
    Argued March 31, 1977;
    decided May 3, 1977

      Bernard Meyerson and Philip Brown for appellant.

      Louis J. Lefkowitz, Attorney-General (Vincent Geraci of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed, without costs.

On August 17, 1973 claimant, Virginia Ana Smith, and Robert Charles Kruseck, Sr., the decedent, were picnicking with her daughter and their son on land recently acquired by the State by condemnation. The decedent was accidentally drowned when he went to the rescue of claimant’s infant daughter who had wandered into a pond on the State land.

On November 7, 1973 claimant, describing herself "as parent and natural guardian of Robert Charles Kruseck, Jr.”, the infant son, served on the Attorney-General a notice of claim for damages for the decedent’s wrongful death. On September 30, 1974 claimant served a claim on the State for such damages, this time in her individual name only. Under date of October 18, 1974 claimant furnished a bill of particulars in response to the State’s demand therefor, and her testimony was taken in an examination before trial on April 29, 1975.

By notice of motion dated May 22, 1975, returnable June 3, 1975, claimant moved to amend the title of her claim to read, "Virginia Ann Smith, as mother and natural guardian of Robert Douglas Kruseck, Jr. in the place and stead of Virginia Ann Smith”. Thereupon, by notice of cross motion dated May 22, 1975 the State moved for summary judgment dismissing the claim on the grounds, inter alia, that the action had no merit and that plaintiff had no standing to sue. After making explicit reference to subdivision 2 of section 10 of the Court of Claims Act, which requires the executor or administrator of the decedent to file the claim, the supporting affidavit continued, "The claimant herein, not having been appointed administratrix at the time of filing the claim, has no standing to maintain the action and on this basis alone the action must be dismissed.”

Both motions were adjourned to September 16, 1975 on which date claimant served her papers in opposition and informed the court that limited letters of administration had been issued to her on September 10, 1975 and that an amended notice of claim and an amended claim had been filed and served. The State contended that the claim was then barred as not having been timely filed.

We agree with the Appellate Division that it was error on the part of the Court of Claims to have denied the State’s motion for summary judgment. Subdivision 2 of section 10 of the Court of Claims Act provides: "2. A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent’s death was caused, shall be filed within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent.” A claim for wrongful death against the State can only be filed by a proper representative of the decedent, and the statute requires that the claim be filed within two years after the death of the decedent (cf. Lewis v State of New York, 26 AD2d 878, affd 25 NY2d 881). In this instance, although express notice of the statutory requirement was given by the State three months before the expiration of the two-year period, the representative was not appointed until nearly a month after the expiration of the statutory period.

Inasmuch as timeliness of filing is a jurisdictional prerequisite to making a claim and in this instance no legally sufficient claim was timely filed, the State’s motion for summary judgment should have been granted.

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

Order affirmed.


text:
    In the Matter of the Claim of Isidore Berger, Respondent. Philip Ross, as Industrial Commissioner, Appellant.
    Argued March 25, 1977;
    decided May 3, 1977

      Louis J. Lefkowitz, Attorney-General (Irving Jorrisch, Samuel A. Hirshowitz and Murray Sylvester of counsel), for appellant.

      Isidore Berger, respondent pro se.

   Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated. The board’s determination that the employer-employee relationship continued until the claimant exhausted all of his leave credits was rational and should not be disturbed (Matter of Fisher [Levine], 36 NY2d 146, 150, 153).

Concur: Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Fuchsberg. Judges Gabrielli and Cooke dissent and vote to affirm on the memorandum at the Appellate Division (53 AD2d 730).


text:
    In the Matter of the Arbitration between Alan A. Schachter et al., Appellants, and Lester Witte & Company, Respondent.
    Argued March 29, 1977;
    decided May 3, 1977

      Stephen P. H. Rachlis, Harold Manheim, Robert Braunschweig and Franz S. Leichter for appellants.

      Arnold Buffum Lovell, Arnold Chase, Edward Matthew Kabak and Richard H. Altabef for respondent.
   Memorandum. Order affirmed.

The conclusory allegations contained in the petition and moving papers are insufficient to demonstrate that there is a "substantial question of the existence of a 'valid agreement’ to arbitrate” (Durst v Abrash, 22 AD2d 39, 41, affd on opn below 17 NY2d 445). Specifically, petitioners do not spell out evidentiary facts sufficient to raise a triable issue in support of their claim that they were induced to enter into the partnership agreement or to agree to the arbitration clause contained within it as a result of fraud or duress (8 Weinstein-KornMiller, NY Civ Prac, par 7503.23, p 75-83; see Moseley v Electronic Facilities, 374 US 167; Matter of Housekeeper v Lourie, 39 AD2d 280, app dsmd 32 NY2d 832). Nor does the agreement, on its face, constitute an unlawful restraint of trade (Matter of Riccardi [Modern Silver Linen Supply Co.], 36 NY2d 945, 947). Hence, the application to stay arbitration was properly denied.

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

Order affirmed, with costs, in a memorandum.


text:
    Harry Kaminsky, Appellant, v Frank J. Connolly, as Secretary and Treasurer of Highway & Local Motor Freight Drivers, Dockmen & Helpers Local 707, Respondent, et al., Defendant.
    Argued March 21, 1977;
    decided May 3, 1977

      Joseph M. Schwartz for appellant.

      Stanley M. Berman for respondent.
   Memorandum. The suit against the union was properly brought (see CPLR 1025; General Association Law, § 13; see, also, 1 Weinstein-Korn-Miller, NY Civ Prac, par 305.04, p 3-165 [1975]), and State courts have jurisdiction of the matter (see Vaca v Sipes, 386 US 171, 176-188). Since plaintiff has, in our view, failed to show any breach by the union of the duty of fair representation, our review need go no further. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.


text:
    John W. Clark, Appellant, v New York Telephone Company, Respondent.
    Argued March 23, 1977;
    decided May 3, 1977

      Bert B. Lockwood for appellant.

      Robert J. Lutz for respondent.
   Memorandum. We agree that plaintiff has failed to state any cause of action that is not barred by the Statute of Limitations. Without intending to suggest any retreat from acceptance of the existence of a cause of action, in proper circumstances, for intentional injury without lawful excuse or justification (see Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 405-406; Morrison v National Broadcasting Co., 24 AD2d 284, revd on other grounds 19 NY2d 453), we hold that the action falls properly under CPLR 215 (subd 3) (cf. Morrison v National Broadcasting Co., 19 NY2d 453, 459, supra). As such, the cause is barred. Accordingly, for the reasons stated, as well as those enunciated by the Appellate Division, the order of that court should be affirmed, with costs.

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

Order affirmed.


text:
    Mary Bayer, as Administratrix of the Estate of John Bayer, Deceased, Appellant, v Irving A. Sarot et al., Defendants, New York Medical College, Flower and Fifth Avenue Hospitals, Appellant, and Surgitol, Inc., Respondent.
    Argued March 30, 1977;
    decided May 3, 1977

      David Farber for plaintiff-appellant.

      Patricia D’Alvia for defendant-appellant.

      Thomas R. Newman and Thomas J. Wacht for respondent.
   Order affirmed, with costs, on the opinion by Mr. Justice J. Robert Lynch at the Appellate Division (51 AD2d 366).

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


text:
    In the Matter of Robert W. Damino, Respondent, v Isidore Shapiro, as Commissioner of the Department of Mental Health of Nassau County, et al., Appellants.
    Submitted April 4, 1977;
    decided May 3, 1977
   Motion for clarification granted. On appeal to this court, it was determined that petitioner had no duty to mitigate damages. Not presented, briefed, or determined in this court, and hence open for consideration at Supreme Court, was whether the late Mr. Justice Liff’s judgment in the proceeding would permit deduction of moneys earned, if any, which would not have been earned except for the fact that petitioner was not engaged in his county employment. [See 40 NY2d 1056.]


text:
    New York Public Interest Research Group, Inc., et al., Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents.
    Submitted March 28, 1977;
    decided May 3, 1977
    Reported below, 55 AD2d 274.
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, for mootness.


text:
    In the Matter of the Estate of Thomasina Figliola, Deceased. James Reed, as Director of Monroe County Department of Social Services, Appellant; Sanford R. Shapiro, as Executor of Thomasina Figliola, Deceased, et al., Respondents.
    Argued March 25, 1977;
    decided May 5, 1977

      Samuel Di Lalla and Charles G. Finch for appellant.

      Warren B. Rosenbaum for respondents.
   Order reversed, with costs, and petitioner’s claim allowed in full on the dissenting memorandum at the Appellate Division (51 AD2d 671-672).

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


text:
    In the Matter of Dodd’s Liquor City Corp., Respondent, v New York State Liquor Authority, Appellant.
    Submitted March 25, 1977;
    decided May 5, 1977

      Joseph S. Ryan and Warren B. Pesetsky for appellant.

      Abraham Schatzman for respondent.
   Memorandum. We would reverse the judgment of the Appellate Division and reinstate the penalty imposed by the State Liquor Authority. Unlike Matter of Shore Haven Lounge v New York State Liq. Auth. (37 NY2d 187), where nonintentional conduct was involved, the present case concerns a conscious violation of the law. Under these circumstances, the measure of the penalty imposed by the authority was a reasonable exercise of the discretion vested in it by law and, therefore, should not have been disturbed. (Matter of Pell v Board of Educ., 34 NY2d 222.)

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

Judgment reversed, with costs, and the penalty imposed by the State Liquor Authority reinstated in a memorandum.


author: Jasen, J. (concurring).

text:
    Donald Zimmerman, Appellant, v Archibald R. Murray et al., Respondents.
    Argued March 28, 1977;
    decided May 5, 1977

      Donald Zimmerman, appellant pro se.

      Michael Colodner, Michael R. Juviler and Arthur Weinstein for Richard J. Bartlett, State Administrative Judge, respondent.

      Louis J. Lefkowitz, Attorney-General (William J. Kogan and Ruth Kessler Toch of counsel), for Archibald R. Murray and another, respondents.
   Memorandum. We affirm on the memorandum at the Appellate Division without concurrence in the implication, if such there be, in that opinion that the issues presented raise questions of constitutional dimension.

Jasen, J. (concurring).

I concur in the result only. In my view, the Appellate Division erred in its implied holding that distinctions made between judicial officers are within the coverage of the constitutional guarantee of equal protection. It is far from resolved that the accoutrements attaching to a public office are constitutionally protected rights or privileges. The issue, as I view it, is not whether plaintiff has been denied equal protection of the laws, but whether he has received the staff assistance which attaches to his office. Nevertheless,. I would affirm the order of the Appellate Division but for a different reason.

Petitioner was appointed a Court of Claims Judge pursuant to section 7 of chapter 603 of the Laws of 1973. This statute provided for the appointment of Court of Claims Judges who would preside over dangerous drug felony prosecutions in criminal parts of State Supreme Court which, by constitutional provision, is an elective Bench. In Matter of Taylor v Sise (33 NY2d 357), a majority of our court held. that the statute, as well as the appointments and designations made pursuant to it, did not violate the terms of the State Constitution. The court viewed the matter as a series of legally distinct and authorized acts and held that "[t]he Legislature exercised its constitutional power and expanded the possible number of Judges on the Court of Claims; the Governor exercised his constitutional power and appointed * * * Judges of the Court of Claims; and the Appellate Division exercised its constitutional power and designated some of these Judges to act as Supreme Court Justices. There is no constitutional infirmity in the actions of any of the three branches of government.” (33 NY2d, at p 366.) I dissented in Taylor, expressing the view that the statute was, really, an unconstitutional attempt to appoint Judges to an elective Bench. (33 NY2d, at p 366.)

I must, of course, accept and respect the decision of the majority, notwithstanding my own view of the controversy. (See Semanchuck v Fifth Ave. & 37th St. Corp., 290 NY 412, 420.) In accordance with the holding in Taylor, I am bound to conclude that the plaintiff’s appointment to the Court of Claims is constitutionally valid and that he is, therefore, a Judge of the Court of Claims, serving "temporarily”, pursuant to Appellate Division designation, in Supreme Court. As the majority opinion in Taylor makes eminently clear, the appellant is a Court of Claims Judge, albeit temporarily assigned to another court, and is not a regular Supreme Court Justice. Therefore, appellant is entitled to the same minimal staffing of his chambers as is received by all Judges of the Court of Claims. While it may be cogently argued that particular Judges handle caseloads justifying additional staff support beyond that provided to other Judges in the same court, a Judge may not be deprived of the minimal staff levels set for all Judges on the same court. To hold otherwise would permit a Judge, for whatever reasons, to be penalized and could result in damage to his ability to efficiently and expeditiously carry forward the duties of judicial office. Thus, with elevation to the Bench, each Judge is entitled to the minimum staff level established as sufficient for the Judges in the same court. As a Court of Claims Judge, plaintiff should receive the same staff as all the other Court of Claims Judges. After the Taylor case, it is too late to argue that plaintiff is not, really, what he appears to be.

The respondent’s argument that appellant’s designation to the criminal parts of Supreme Court justifies a reduced chambers staff is unavailing. Under Taylor, what matters is the court a Judge is officially selected to serve in, not the court in which the Judge actually serves. Nevertheless, in this connection, it is interesting to note that while the statute at issue in Taylor had at root the purpose of providing Judges to preside over narcotics cases, Court of Claims Judges, such as plaintiff, have been sitting not only in criminal parts of Supreme Court, quite without regard to the nature of the crime charged, but in regular civil parts. Thus, in actuality, appointed Court of Claims Judges have been serving and are now serving as full-time Supreme Court Justices. But, in view of the Taylor decision, nothing can be made of this fact.

Nevertheless, I agree with the majority that the order of the Appellate Division should be affirmed. At the time plaintiff instituted this action, Court of Claims Judges were granted three chambers’ assistants: a law secretary, a personal secretary and a confidential attendant. Plaintiff, however, was permitted to appoint only one chambers’ assistant on the ground that this was all an acting Supreme Court Justice was entitled to. While the action has been pending, the Administrative Board of the Judicial Conference commenced the phase-out of personal confidential attendants in the Court of Claims, transferring even incumbents to positions as court attendants. Thus, the staff authorized for all Court of Claims Judges was reduced from three assistants to two. This has not damaged any constitutional interest of the plaintiff since the reduction is in minimum staff size and affects all Court of Claims Judges equally. Further, the Legislature enacted a statute entitling all Supreme Court Justices to two chambers’ assistants: a law secretary and a personal secretary. (Judiciary Law, § 222-a, as added by L 1976, ch 966, § 3.) Subsequently, the State Administrative Judge announced his intention to treat the statute as encompassing Acting Supreme Court Justices. The result is that plaintiff in either of his capacities, as á Court of Claims Judge or as an Acting Supreme Court Justice, is entitled to two chambers’ assistants. Regardless of the actual capacity, he will receive all that he is entitled to. It is for this reason that I concur in the result reached by the majority.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur; Judge Jasen concurs in a separate opinion in which Judge Cooke concurs; Chief Judge Breitel taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Jack L. Inselman & Co., Inc., Appellant, v FNB Financial Company, Respondent.
    Argued March 29, 1977;
    decided May 5, 1977

      Benedict Ginsberg and Charles E. Ramos for appellant.

      Joel Salon for respondent.
   Memorandum. The order of the Appellate Division is affirmed, with costs.

Guilford Industries, a manufacturer of fabric, had a factoring agreement with FNB Financial Company (FNB) whereby the latter would guarantee payment of certain accounts receivable owed by purchasers whom it deemed credit worthy. FNB had, accordingly, approved the credit of one such purchaser, plaintiff Jack L. Inselman & Co, up to a maximum of $60,000. The agreement between Guilford and FNB in no way restricted or altered the rights of Guilford to enter into purchase and sale contracts involving credit transactions but merely defined the limits of guarantee imposed by FNB.

Guilford also made certain contracts with Inselman which included, as credit terms, that "If Buyer’s [Inselman] * * * credit limit becomes exhausted by deliveries under this or any other orders * * * Buyer thereafter shall pay cash, less allowed discounts, if any, on or before delivery. If Buyer fails, within a reasonable time, to pay cash in advance when so required, Seller [Guilford] may, at its option, cancel the undelivered portion of this order or contract.” The contracts specifically defined delivery as "acceptance of goods by common carrier.”

During the summer of 1974 Guilford sold and delivered to Inselman various fabrics for the sum of $54,300.18. The invoices were assigned to and guaranteed by FNB as provided in the factoring agreement, and the purchase of these goods depleted the bulk of its line of credit. Additional goods, valued at $76,273.75 were manufactured by Guilford, stored in its warehouse and identified to additional purchase contracts with Inselman. In accordance with the agreement, identification of the goods to the contracts, while in such warehouse storage, obligated Inselman to pay the purchase price even though this occurred prior to actual delivery. FNB, under the terms of its factoring agreement, refused to extend credit approval beyond the initial $60,000 limit. Consequently Guilford refused to deliver these additional goods unless Inselman paid cash, as provided under the terms of their contracts. Inselman unjustifiably insisted on immediate delivery without cash payment, else it would consider the contract canceled, and the demand was properly rejected by Guilford. Subsequently, FNB, under the belief that it had a repurchase agreement with Inselman, bought the goods from Guilford thereby releasing Inselman from liability to Guilford for the purchase price. Inselman did not repurchase the fabrics but rather instituted this action for tortious interference with the contract between plaintiff and Guilford.

Inselman argues that FNB’s imposition of credit limitations with a concomitant request for payment before credit would be extended, and its subsequent purchase of the goods, forms the basis for a claim of tortious interference with the contract between Inselman and Guilford. FNB asserts, and correctly we think, that the actions taken by it and Guilford were entirely within their rights under the respective agreements. In addition it counterclaimed (1) for damages sustained as a result of Inselman’s refusal to repurchase, (2) for $54,300.18 on invoices assigned to it by Guilford, covering goods sold and delivered and (3) for $10,510.26 on invoices assigned to it by Malden Mills, Inc., another factoring client, covering other goods sold and delivered. The defendant moved for summary judgment dismissing the complaint and for judgment on its second and third counterclaims. Special Term denied defendant’s motion in all respects and the Appellate Division reversed, dismissed the complaint and granted judgment on the second and third counterclaims. We affirm.

When Inselman exhausted its line of credit, Guilford was entitled, under the credit terms of the agreement, to demand cash payment before delivery. FNB had no obligation to extend further credit and was fully within its rights in demanding payment of the outstanding invoices before further credit would be extended. As to its subsequent purchase of the goods, this occurred well after the plaintiff had repudiated its contract. In order for the plaintiff to have a cause of action for tortious interference of contract, it is axiomatic that there must be a breach of that contract by the other party (Israel v Wood Dolson Co, 1 NY2d 116, 120; Campbell v Gates, 236 NY 457; Lamb v Cheney & Son, 227 NY 418; 32 NY Jur, Interference, § 20), a situation not here present. An essential element of the case against FNB, then, is a breach by Guilford. No such breach had occurred and thus the complaint was properly dismissed. Summary judgment on the second and third counterclaims involving goods sold and delivered, in the absence of evidence disputing liability, was correctly granted.

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

Order affirmed.


text:
    Flushing Hospital and Medical Center, Plaintiff, v Robert E. Woytisek, Defendant and Third-Party Plaintiff-Respondent. Associated Hospital Service of New York, Third-Party Defendant-Appellant.
    Argued March 23, 1977;
    decided May 5, 1977

      Joseph M. Piepul, Jerrold I. Ehrlich and John L. Shurtleff for appellant.

      Morris Weissberg and Robert J. Krengel for respondent.

      Jacob Imberman and Steven S. Miller for Greater New York Hospital Association, amicus curiae.

   Memorandum. The order of the Appellate Division should be reversed, with costs, and the order of the Appellate Term dismissing the third-party complaint reinstated.

We agree with the Appellate Term that in this record there is no tender of admissible evidentiary proof sufficient to require a trial of any material issue of fact. In this circumstance it is for the court to interpret the relevant provisions of the group contract for hospital service issued by Blue Cross, third-party defendant.

In the absence of admissible proof to the contrary, it must be taken that the total of the hospital’s usual charges for services rendered to Mrs. Woytisek as a private patient during the 15 "discount days” was $3,511.55, one half of which after adjustments was $1,525.55. On this appeal, limited to defendant’s claim over against the third-party defendant, no issue may be raised as to the right of the hospital either to set the former amount of total charges or to charge the latter amount to Mrs. Woytisek’s estate.

The estate points, however, to the clause in the group contract that provides: "The hospital shall make no charge to the Subscriber for 50% of the hospital’s regular charges for Hospital Service rendered during the Discount days.” It is the estate’s contention that under this clause it is entitled to indemnification by Blue Cross for a portion of the amount charged it for services rendered to Mrs. Woytisek. It argues that the term "regular charges” does not refer to charges which are customarily made directly to the patient when there is no third-party payor, but must be read to contemplate an amount equal to twice the payment Blue Cross makes for its half share of financial responsibility for the patient services, which payment is established on this record to be $731.70. Simply stated the subscriber claims that inasmuch as Blue Cross paid only $731.70 for its half of the services rendered, the estate should be indemnified with respect to its half for any payment it is obliged to make in excess of an equivalent $731.70.

We reject this contention. On our analysis, the "regular charges” within the meaning of the contract provision in this instance were $3,511.55. Blue Cross agreed that the hospital would not charge the patient for 50% of this amount. The other 50% would, of course, be the direct obligation of the subscriber. The scope of that agreement is in no way affected by the fact that Blue Cross is able to discharge its responsibility for one half of the total bill for only $731.70 pursuant to arrangements between the hospital and Blue Cross. For whatever may be the reasons—volume of payments, promptness in paying, assurance of payment or otherwise—Blue Cross is entitled to what amounts to a very substantial discount with respect to its 50% of the regular charges. The subscriber, however, is not entitled to derive any economic benefit from this independent arrangement between the hospital and Blue Cross. Blue Cross has fully discharged its obligation to see to it that 50% of the regular charges for the services rendered in this instance were not charged to Mrs. Woytisek’s estate. Beyond that the estate has no claim against Blue Cross. Accordingly the third-party complaint should be dismissed.

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

Order reversed, with costs, and the order of the Appellate Term reinstated in a memorandum. Question certified answered in the negative.


text:
    Schenectady Urban Renewal Agency, Respondent, v Earl M. Bucci et al., Respondents.
    Argued March 29, 1977;
    decided May 5, 1977

      William F. Conway and Michael G. Breslin for appellants.

      H. E. Blodgett and James P. Houlihan for respondent.
   Order affirmed, with costs, on the opinion by Mr. Justice James Gibson at Special Term.

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


text:
    In the Matter of Felix Colon, Respondent, v Leon J. Vincent, as Superintendent of the Green Haven Correctional Facility, Appellant.
    Argued April 1, 1977;
    decided May 5, 1977

      Louis J. Lefkowitz, Attorney-General (Eugene P. O’Brien, Samuel A. Hirshowitz, Thomas P. Bartley and Irving C. Gendelman of counsel), for appellant.

      Sally Mendola, Stanley E. Esposito and Thomas M. McDade for respondent.

      Sally Mendola, William E. Hellerstein, Donald H. Zuckerman and Michael Ciaffa for Legal Aid Society, Parole Revocation Defense Unit; amicus curiae.

   Order affirmed, without costs, on the memorandum at the Appellate Division (49 AD2d 939; see Powell v Malcolm, 44 AD2d 65).

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


text:
    Ellen F. Cohen, as Administratrix of the Estate of Alan D. Cohen, Deceased, Appellant, v State of New York, Respondent.
    (Claim No. 57074.)
    Argued March 31, 1977;
    decided May 5, 1977

      Bernard Meyerson and Aaron J. Broder for appellant.

      Joseph E. Magnotti and John S. Zachary for respondent.
   Order affirmed, with costs (see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 588-590; cf. Scarnato v State of New York, 298 NY 376).

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


text:
    In the Matter of Charles Slominski, Appellant, v Michael J. Codd, Respondent.
    Submitted April 1, 1977;
    decided May 5, 1977

      Mary J. McDonnel for appellant.

      W. Bernard Richland, Corporation Counsel (Diane R. Eisner and L. Kevin Sheridan of counsel), for respondent.
   Order affirmed, with costs, on the memorandum at the Appellate Division (52 AD2d 762).

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


author: Jasen, J. (dissenting).

text:
    Justine S. Tannenbaum, Respondent, v Provident Mutual Life Insurance Company of Philadelphia, Appellant, et al., Defendant.
    Argued March 28, 1977;
    decided May 5, 1977

      David R. Crow for appellant.

      Bernard R. Selkowe for respondent.
   Memorandum. We have concluded that there is sufficient evidence in the record for the jury to find that the defendant should be estopped from relying on the misstatements in the insured’s application in order to void the policy. The defendant’s agent misrepresented the comparative benefits and disadvantages of the policies and also failed to inform Guardian Insurance Company of the contemplated replacement of the existing policies it had issued, as was then required by Insuranee Department regulation (11 NYCRR 48.5), thus foreclosing the most obvious source of more balancing information. As noted by the Appellate Division these misrepresentations of the defendant’s agent led to the surrender of the insured’s existing policies with Ghardian which brought the insured no gain and cost him the loss of the full reach of the incontestability clause including its provision covering suicide.

We recognize that the insured was not, or may not have been, completely faultless, assuming his mental condition did not affect his judgment, but what was done here was not only an individual wrong, it was also inconsistent with public policy. It has been noted that "[e]ven when the contracting parties are in pari delicto, the courts may interfere from motives of public policy. Whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, then relief is given to him” (3 Pomeroy’s Equity Jurisprudence, § 941, pp 733-734 [5th ed]; see, also, Ford v Harrington, 16 NY 285, 291).

The order of the Appellate Division should be affirmed.

Jasen, J. (dissenting).

I dissent and vote to reverse the order of the Appellate Division for the reasons stated in the dissenting opinion by Mr. Justice Myles J. Lane at the Appellate Division. (53 AD2d 86, 106.) I would add only a brief comment. As the majority of my colleagues put it, "the insured was not, or may not have been, completely faultless, assuming that his mental condition did not affect his judgment”. In fact, the insured, a medical doctor, concealed from the insurance company the knowledge that, only four months prior to his application for life insurance, he had been confined to a hospital for treatment of a severe mental condition, described in the hospital record as "acute schizophrenic reaction-paranoid type”. Despite his deteriorating mental condition and his simultaneous treatment for diabetes, the insured stated, in his insurance application, that he was in "good health” and had not been treated by a physician for a period of three years.

In my view, the insured committed a fundamental fraud on the insurance company, in the absence of which the $200,000 policy at issue here would never have been accepted. The undisputed misrepresentations are material as a matter of law. (E.g., Leamy v Berkshire Life Ins. Co., 39 NY2d 271, 274.) The fraud committed by the insured went to the very heart of the policy. The asserted misrepresentations by the insurance company’s agent related to the effect that the new policy would have on existing policies and become quite beside the point when it is considered thát, without the insured’s fraudulent conduct, the new policy would not have been issued at all. It is disingenuous for the respondent to argue, as she does, that the insurer misrepresented the effect of the policy when the insured committed a primary and overriding fraud which, if it had been known, would have precluded any negotiations over the effect of the policy whatsoever, simply because without the fraud there would have been no policy.

As for the public policy argument advanced by the majority in this court, it is sufficient to say that one of the most basic of all public policies is the policy against permitting unscrupulous persons from profiting from their own wrong. (E.g., Riggs v Palmer, 115 NY 506, 511-512.) I cannot subscribe to a decision which authorizes the wife of an insured to collect $200,000 in life insurance, notwithstanding that the insured took his own life as a consequence of the very mental disease that the insured skillfully hid from the insurance company. In this instance, neither law, nor equity, nor public policy, authorize, much less favor, the enforcement of a policy obtained only through the exercise of the grossest type of fraud. The insured died within the contestability period and estoppel, which is an equitable doctrine, should not be invoked to enforce a fraud.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Arbitration between Fayetteville-Manlius Central School District, Respondent, and Fayetteville-Manlius Teachers Association, Appellant.
    Submitted April 4, 1977;
    decided May 5, 1977


text:
    The People of the State of New York, Respondent, v Rocco Russo, Appellant.
    Argued March 31, 1977;
    decided May 10, 1977

      Lewis R. Friedman and Herman Kaufman for appellant.

      Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed. While the Trial Judge unnecessarily examined witnesses and made impromptu remarks and asides to the attorneys, the witnesses and the jury, we cannot say, on this record, that as a matter of law defendant was deprived of a fair trial. (Cf. People v Woods, 39 NY2d 852, revg on dissenting mem at Appellate Division 48 AD2d 708; People v Budd, 38 NY2d 988; People v Mendes, 3 NY2d 120; People v Matos, 46 AD2d 903.) As noted by the Appellate Division majority in its memorandum (46 AD2d 904), the court’s overbearing conduct was not directed at defendant’s side of the case alone; the court’s interference with the People’s presentation of evidence prompted at least one very strenuous objection from the prosecutor. Most of the court’s comments and questions passed without objection from defense counsel and the court’s charge to the jury was accepted without exception. Further, it is not disputed that the defendant committed the homicide of which he was accused. The only significant issue at trial was whether the defendant had sufficient mental capacity to formulate an intent to kill. There was substantial, if not overwhelming, evidence from which the jury could conclude, as it did, that the defendant could, and did, formulate an intent to kill his victim.

The other issues advanced by the defendant are without merit. As previously stated, the conviction is supported by ample and legally sufficient evidence. Further, there is no reasonable view of the evidence that would have warranted the trial court to submit the offense of manslaughter in the second degree to the jury for its consideration, as a lesser included crime. (CPL 300.50; see People v Stanfield, 36 NY2d 467.)

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Max Joseph Danziger, Appellant.
    Argued March 31, 1977;
    decided May 10, 1977

      William M. Erlbaum, Herbert A. Lyon and Charles Wender for appellant.

      John J. Santucci, District Attorney (Eileen M. Sullivan and Barry A. Schwartz of counsel), for respondent.
   Memorandum. The order of the Appellate Division is affirmed.

At about 12:30 p.m. on February 6, 1967, in response to defendant’s telephone summons, two New York City patrolmen were dispatched by headquarters to the address of the defendant. Upon arrival the officers were hailed by the awaiting defendant who explained that there was a man in his apartment who was shot. Uncertain as to the nature of the crime, the officers asked the defendant what had happened and he forthrightly stated that he had shot the man. He led them to the apartment, unlocked the door and motioned the officers to follow him, taking them to the body of the victim. During the course of their inquiry, the officers found, in plain view, a diary and certain other papers which contained incriminating statements evidencing the basis for an intent to harm the victim. The murder weapon was later found under a pillow on the sofa in the living room, where the defendant was being detained. He repeated he had shot the man; and on several occasions the defendant offered to tell the whole story to a Lieutenant Danner of the Police Commissioner’s Confidential Investigating Unit, who was not then present.

Shortly after the body was found, Detective McTigue arrived at the scene and advised defendant of his rights. McTigue reiterated that he was entitled to an attorney and asked if he would prefer to tell him the whole story. Danziger then repeated what he had already told the officers, adding other details voluntarily.

On this appeal the defendant argues for the first time that the introduction into evidence of his diary and personal papers violated his right against compelled self incrimination under the Fifth Amendment. Significantly, however, the defendant failed to raise this issue either at the suppression hearing, during trial or on review at the Appellate Division. Thus, this issue has not been preserved and we do not reach it (People v Loewel, 41 NY2d 609, 611-612; People v Patterson, 39 NY2d 288, 295-296; People v Robinson, 36 NY2d 224).

The statements made by the defendant were found by the suppression court to be free and voluntary and this finding was affirmed on appeal. Under the circumstances in this case, the record before us offers no reason to disturb the affirmed determination that the People sustained their burden of proving that the statements were voluntary beyond a reasonable doubt (People v Huntley, 15 NY2d 72).

The defendant challenges the search of the apartment and, of course, the seizure of the papers and weapon as a violation of his Fourth Amendment rights. The officers were present in the apartment not only with the consent but at the specific insistence of the defendant. Police presence in the apartment was obviously valid pursuant to the specific request of the defendant and under the general obligation of the police to investigate a violent death, and even to assist people in distress (People v Mitchell, 39 NY2d 173, 177; People v Gallmon, 19 NY2d 389). Seizure of items during investigation of an unexplained death and following the arrest of the defendant upon probable cause, was not violative of then applicable Fourth Amendment protections (United States v Rabinowitz, 339 US 56; Harris v United States, 331 US 145; Marron v United States, 275 US 192; see People v Loria, 10 NY2d 368, 373-374). To the extent that the search may be claimed to have been wider than permitted under Chimel v California (395 US 752) we note that it occurred prior to that decision, which has been held to be without retroactive effect (Williams v United States, 401 US 646; People v Lo Cicero, 28 NY2d 525). As found at the suppression hearing and affirmed by the Appellate Division, the search here was not impermissible.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Israel Zef Herskowitz and Julius Michael Jacobs, Respondents.
    Argued March 25, 1977;
    decided May 10, 1977

      David S. Ritter, District Attorney (Michael Schwartz of counsel), for appellant.

      Arnold Becker for respondents.
   Memorandum. ,The order of the Appellate Division, is affirmed.

The defendants were charged with bribery in the second degree (Penal Law, § 200.00), the indictment alleging that they "conferred, offered and agreed to confer a benefit, to wit: Money, upon a public servant, to wit: [the then Assemblyman of the State of New York, for a portion of Orange County], upon his agreement and understanding that such public servant’s vote, opinion, judgment, action, decision, or exercise of discretion as a public servant would thereby be influenced so that property owned by defendants and known as the Comfort Farm, would be permitted to connect to and become a part of a water district and sewer district located in the Town of Wallkill, Orange County, New York”. Initially, we note the commendable conduct of the then Assemblyman, who, upon being approached, promptly informed the prosecutorial authorities of the actions of the defendants. His responsible action led to the indictments herein.

Section 200.00 of the Penal Law provides: "A person is guilty of bribery in the second degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced”. A motion to dismiss the indictment was granted by the County Court, Orange County, and affirmed by the Appellate Division, on the ground that the offer to bribe an official sought the performance of acts which were beyond his public service capacity within the meaning of the statute.

The issue is whether Assemblyman Ingrassia, by virtue of his public office had colorable authority to act, as a public servant, to aid in achieving the result hoped for by the defendants. Although the actions of the defendants in offering a bribe to the Assemblyman are thoroughly reprehensible, the power to extend the water and sewage district to include the property owned by the defendants was vested solely in the town board. In his position as a member of the State Assembly, he had no official power, authority, or responsibility which was in any way related to consideration of an extension of the service districts and thus this particular statute has not been violated.

The statute provides that the offer to confer a bribe must seek to affect the judgment or action of a public servant in his capacity "as a public servant”. This language has been broadly construed to encompass acts which are within the "colorable” authority of the public officials (People v Chapman, 13 NY2d 97; People v Lafaro, 250 NY 336; People v Clougher, 246 NY 106; People v Jackson, 191 NY 293), but that authority must relate to the public position held by the official at the time of the bribe offer (People v Berg, 228 App Div 433, affd 254 NY 544). Colorable authority, as applicable to the statute, has been held to exist where a bribe is offered to a public official "to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties” (People v Lafaro, supra, p 342). The person here approached was not a member of the town board and, in his position as a public servant, lacked any power related to his office which, colorably or otherwise, could affect the decision of that board. There are, of course, no allegations that members of the town board, the only persons authorized to vote on or to take the action sought by the defendants, were being bribed. In People v Chapman (13 NY2d 97, supra) the defendant was charged with offering a bribe to a police officer to influence the release of one Horace Ross, who had been arrested by the officer. The issue centered on whether the officer had actual authority to procure the release since Ross had been booked at the time of the bribe and the officer’s duties with regard to the matter had ended. The court held, however, that it was within his power, as the arresting officer, to alter his statements or disclaim knowledge of sufficient facets to justify the arrest, thereby effectuating release. Chapman is a straightforward case where the policeman was in a position, by the very nature of his public office, to achieve the result sought by the bribe offer and is distinguishable from the present case where the nature of the Assemblyman’s job is in no manner related, even colorably, to the desired end.

While there are other sections of the Penal Law which may be offended by the conduct charged in the present indictment (see Penal Law, § 105.00 et seq.), we are limited to the alleged violation of section 200.00, the only violation charged in the indictment before us, which we find to be deficient.

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

Order affirmed in a memorandum.

       Defendant Herskowitz was also charged with offering to bribe the arresting officer. The motion to dismiss that indictment has been denied and thus will proceed its natural course to trial.


text:
    Burger King Corporation, Plaintiff, and Louis J. Venerose, Respondent, v Village of Larchmont et al., Appellants.
    Argued March 30, 1977;
    decided May 10, 1977

      George P. Forbes, Jr., Village Attorney, for appellants.

      Douglas R. Hoyt for respondent.
   Order affirmed, with costs, on the opinion by Mr. Justice John P. Donohoe at Special Term.

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


text:
    In the Matter of Ronald Neal, Respondent, v George Schoepfer, as Executive Officer and Chief Engineer of the Triborough Bridge and Tunnel Authority, Appellant.
    Argued March 31, 1977;
    decided May 10, 1977

      Gerald H. Horowitz and Joseph Bulgatz for appellant.

      James N. Finney for respondent.
   Order reversed, with costs, and the determination of appellant reinstated (see Matter of Pell v Board of Educ., 34 NY2d 222, 232, 233-234, 241).

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


text:
    The People of the State of New York, Respondent, v Frederick R. Burger and John W. Metzler, Appellants.
    Argued March 31, 1977;
    decided May 10, 1977

      E. Robert Fussell for Frederick R. Burger, appellant.

      Richard H. Shults, Public Defender, for John W. Metzler, appellant.

      Ronald L. Fancher, District Attorney, for respondent.
   Orders affirmed on the memorandum at the Appellate Division (51 AD2d 670, 671).

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


text:
    Edward F. De Crosta, Jr., Appellant, v A. Reynolds Construction and Supply Corporation, Respondent.
    Argued March 25, 1977;
    decided May 10, 1977

      William E. Deily for appellant.

      Anthony J. Carpinello and Nicholas J. Greisler for respondent.
   Memorandum. By contract dated October 13, 1969, plaintiff homeowner purchased from defendant contractor an in-ground, steel-walled swimming pool which was installed later that month. The pool collapsed on or about March 15, 1973.

In an action instituted on January 7, 1974, plaintiff sought damages in a complaint asserting negligence, as well as allegations that plaintiff relied on defendant’s representations that it was an expert, specifically skilled in swimming pool construction, and that plaintiff had no knowledge or means of ascertaining whether the pool was properly erected until its collapse. Among other things, plaintiffs bill of particulars alleged the use by defendant of "inferior materials”, causing the collapse, and that defendant’s "patented braces were insufficient”. Damages were categorized as loss in valuation, cost of repairs, and landscaping of the pool area. On defendant’s motion for summary judgment and dismissal on the ground that the action was time-barred, plaintiff submitted a brief which stated: "The present action is one based on strict liability and tort and as expounded * * * in Codling vs. Paglia”; and "On the question of statute of limitation in a strict liability and tort situation the statute of limitations does not begin to run until the actual damage occurs”. Defendant in its brief, in turn, argued that plaintiff did not allege and the facts did not substantiate a cause of action based on strict liability. Special Term held that CPLR 214 (subd 4) and subdivision (1) of section 2-725 of the Uniform Commercial Code "indicate that the cause of action was not brought timely”, and noted "However, the Plaintiff contends that the action is based on strict liability”. Plaintiff did not appeal from the order and judgment of dismissal.

In the present action, commenced on June 14, 1974, the complaint sets forth substantially similar facts as in the first and alleges two causes of action, one on the theory of strict products liability and the other for breach of warranty. Based on the judgment entered in the prior action, the answer contains an affirmative defense of res judicata. Again, defendant moved for summary judgment and dismissal. The second Special Term granted the motion and dismissed the complaint, without opinion, but the preamble of the order as entered recited that the motion by defendant was based on the grounds that the asserted causes of action were barred by the Statute of Limitations and that as to each cause plaintiff is directly and collaterally estopped.

Where a plaintiff brings an action to enforce a claim and is barred from proceeding thereon because of a Statute of Limitations’ defense which has been interposed, the judicial decision is on the merits and plaintiff is precluded from thereafter maintaining another action to enforce the claim in the same State (Restatement, Judgments, § 49, Comment a, p 194; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211.66, p 72; 9 Carmody Wait 2d, NY Prac, § 63:211, p 228). Moreover, having raised the issue of strict products liability in the previous time limitation consideration, plaintiff is now estopped by the prior adjudication. Plaintiffs remedy was an appeal from that determination rather than a second action setting forth the same cause of action as that claimed to have been asserted when the controversy was reviewed initially. For these reasons, we conclude that there should be an affirmance.

Accordingly, the order appealed from should be affirmed, with costs.

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

Order affirmed.


text:
    Bloomfield Building Wreckers, Inc., Appellant, v City of Troy, Respondent.
    Argued March 31, 1977;
    decided May 10, 1977

      George B. Ceresia, Jr., for appellant.

      James J. Reilly, Corporation Counsel (Donald J. Shanley of counsel), for respondent.
   Memorandum. The order of the Appellate Division should be affirmed.

Plaintiff, having been awarded a contract with the State of New York for the demolition of 53 buildings in the City of Troy, alleges in its complaint for wrongful interference with the performance of the contract, that the city refused to issue demolition permits applied for on two occasions, "on or about” November 12, 1971 and on January 11, 1972. An affidavit of plaintiffs attorney in opposition to the motion to dismiss indicates that the refusals occurred on the same days as those on which the applications were made. The complaint also asserts that a notice of claim was served on the city on or about May 22, 1972.

Since the wrong or wrongs alleged in the complaint are not continuing torts (see Band v Town of Colonie, 36 AD2d 785; Buscarello v Guglielmelli, 44 Misc 2d 1041, 1042-1043; Hanrihan v Parker, 19 Misc 2d 467, 469; Hagan Corp. v Medical Soc. of County of N. Y., 198 Misc 207, 209, affd 279 App Div 1058; 32 NY Jur, Interference, § 34), and since the cause or causes of action, if any, accrued at the time of the sustaining of injury, which injury, however viewed, was more than 90 days prior to the filing of the notice of claim (Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300; Band v Town of Colonie, 36 AD2d 785, 786, supra; see D’Amico v Winkelman Co., 51 Misc 2d 205, 207; but see Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 403), the complaint was properly dismissed for failure to comply with section 50-e of the General Municipal Law. Defendant’s service of a notice of appeal in an article 78 proceeding effected a stay of "all proceedings to enforce the judgment or order appealed from” therein (CPLR 5519, subd [a]), but in no way prevented plaintiff from filing a notice of claim against defendant.

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

Order affirmed, with costs, in a memorandum.


text:
    Mobil Oil Indonesia, Inc., Appellant, v Asamera Oil (Indonesia) Ltd., et al., Respondents.
    Submitted May 2, 1977;
    decided May 10, 1977
    Reported below, 56 AD2d 339.
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Minerals & Chems. Philipp Corp. [Panamerican Commodities, S. A.-World Commerce Corp., S. A.], 15 AD2d 432, app dsmd 11 NY2d 1109, mot to resettle order den 12 NY2d 672, cert den 372 US 910; Cohen and Karger, Powers of the New York Court of Appeals, § 10, pp 41-42).

Motion for stay dismissed as academic.


text:
    Kathleen Murray, as Administratrix of the Estate of James F. Murray, Deceased, Respondent, v City of New York, Appellant, et al., Defendants.
    Submitted April 4, 1977;
    decided May 10, 1977
    Reported below, 54 AD2d 942.
   Motion to dismiss the appeal herein denied.


text:
    Gabriel Natarelli, Respondent v Batesville Casket Sales Company, Inc., et al., Appellants.
    Submitted May 2, 1977;
    decided May 10, 1977
   Motion for leave to appeal dismissed with $20 costs and necessary reproduction disbursements and, on the court’s own motion, appeal taken as of right dismissed without costs, each upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Matter of Lanzer v Moran, 293 NY 759; Cohen and Karger, Powers of the New York Court of Appeals, § 39, p 158).


text:
    The People of the State of New York ex rel. Harvey Brown, Appellant, v Warden, Green Haven Correctional Facility et al., Respondents.
    Submitted March 21, 1977;
    decided May 10, 1977
    Reported below, 50 AD2d 913.
   Motion to dismiss the appeal herein granted and the appeal dismissed for mootness, without costs.


text:
    Margo Williams, Appellant, v Robert A. Arpie et al., Respondents.
    Submitted May 2, 1977;
    decided May 10, 1977
    Reported below, 56 AD2d 689.
   Motion to dismiss the appeal herein denied.