text:
    In the Matter of Patrick Henry, as District Attorney of the County of Suffolk, et al., Respondents, v Anthony Noto, as Presiding Officer of the Suffolk County Legislature, et al., Appellants.
    Argued May 1, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      David J. Gilmartin, County Attorney (Anton J. Borovina of counsel), for appellants.

      Frederick Eisenbud and Vincent A. Malito for respondents.
   OPINION OF THE COURT

Memorandum;

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

The Suffolk County District Attorney, Patrick Henry, and two senior assistants, Newell and Me Vann, challenge certain action taken by the Suffolk County Legislature. Henry challenges Resolution No. 1070-1970 ("1070”), which empowers the county executive and presiding officer to approve or disapprove a request to fill any position earmarked by the director of the budget. All three plaintiffs challenge Resolution No. 919-1977 ("919”), through which the county legislature established a salary plan whereby the salaries of all new appointees to county positions are to be at the lowest step in grade unless the county executive and presiding officer approve a request for the payment of a higher salary upon a showing that recruitment efforts at the lower salary were unsuccessful.

Resolution 1070 improperly encroaches upon the power of the District Attorney as granted by the Suffolk County Charter and, therefore, is invalid as applied to that office. By its charter, Suffolk County granted to the District Attorney "the power to hire assistants * * * as the county legislature may allow in the budget” (Suffolk County Charter, § 1802). The budget approval and modification process similarly is governed by charter, requiring, among other things, action by the county legislature as a body. Resolution 1070 gives to the county executive and the presiding officer power unilaterally to frustrate the action of the legislature in authorizing assistants for the District Attorney (cf. Matter of County of Oneida v Berle, 49 NY2d 515). It is the budget which defines the extent of the District Attorney’s hiring power. While that power properly may be limited by legislative action of equal or greater dignity than that sought to be altered, it may not be done indirectly by a resolution such as this (cf. Matter of Gallagher v Regan, 42 NY2d 230).

The questions posed by the challenge to Resolution 919 are now moot. Plaintiffs have informed the court that the Suffolk County Legislature passed Resolution No. 1980-1979, effective January 1, 1980, amending the classification and salary plan and rendering the salary approval procedure inapplicable to the hiring of Assistant District Attorneys. Inasmuch as Resolution 919 is attacked only as applied to the hiring of assistants, the county’s action has rendered that portion of the complaint moot. That the complaint sought relief in the nature of retroactive in-step salary payments from March, 1979 does not alter this conclusion. While a controversy ordinarily would retain vitality by such a request (see Cohen and Karger, Powers of the New York Court of Appeals, § 98, p 417; compare Nevins, Inc. v Kasmach, 279 NY 323; People ex rel. O’Connor v Girvin, 227 NY 392, with Matter of Croker v Sturgis, 175 NY 158), the Appellate Division did not grant this relief and plaintiffs did not cross-appeal. The back pay issue thus is not before this court (see Segar v Youngs, 45 NY2d 568; City Bldg. Employees Assn. v Levitt, 49 NY2d 1033), and no effective determination can be rendered. Therefore, there should be a modification to the extent of declaring moot the issues raised by the challenge to Resolution 919.

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

Order modified, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Vincent D’Onofrio et al., Respondents, v Safeco Insurance Company of America, Appellant.
    Argued April 25, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Edward J. Hart for appellant.

      Robert L. Weiner for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 945).

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


text:
    In the Matter of the Arbitration between Black & Pola, Appellant, and Manes Organization, Inc., Respondent.
    Argued April 28, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Gordon Marshall for appellant.

      Michael D. Blutrich and Donald L. Kreindler for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 514).

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


text:
    In the Matter of Robert M. Shapiro et al., Respondents, v State Tax Commission, Appellant.
    Argued April 21, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Diane De Furio Foody and Shirley Adelson Siegel), for appellant.

      Martin A. Roeder and Jeffrey W. Rubin for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission reinstated.

As stated in the dissenting opinion of Mr. Justice J. Clarence Herlihy at the Appellate Division there is substantial evidence to sustain the determination of the commission that the taxpayer Robert M. Shapiro never established a domicile in England and that both taxpayers were residents of New York State for income tax purposes for the year 1971.

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

Judgment reversed, etc.


text:
    Teleon Realty Corp. et al., Respondents-Appellants, v City of New York et al., Appellants-Respondents.
    Argued April 22, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Samuel Kirschenbaum for respondents-appellants.

      Allen G. Schwartz, Corporation Counsel (Rochelle M. Corson and Edith I. Spivack of counsel), for appellants-respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 858).

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


text:
    In the Matter of Yashio Enomoto et al., Respondents, v Philip Toia, as Acting Commissioner of the New York State Department of Social Services, Appellant, et al., Respondent. In the Matter of Cheng San Chen et al., Respondents, v Philip L. Toia, as Acting Commissioner of the State of New York Department of Social Services, Appellant, et al., Respondent.
    Argued April 24, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for appellants.

      Bernard B. Freedman and Rose H. Sconiers for petitioners-respondents.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (67 AD2d 1085).

The regulation of the State Department of Social Services as amended March 9, 1979 (18 NYCRR 349.3) is not applicable to either of the present cases. Accordingly, we have not considered what effect it might have on fact situations similar to those in the cases now before us.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    Daniel M. Vermut, Appellant, v R & M Liquors, Inc., et al., Defendants, and Irving Schlusselberg, Respondent.
    Argued April 28, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Mark E. Spund and Sondra I. Harris for appellant.

      Richard C. Agins for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that plaintiff has failed to show facts sufficient to require a trial of any issue of fact. He has tendered no evidentiary proof in admissible form adequate for that purpose and demonstrated no acceptable excuse for his failure to do so. To the extent that he now seeks, to reverse the grant of summary judgment against him based on his assertion that the facts of the alleged fraud were exclusively in the possession of the defendant attorney, it suffices to observe that nowhere in his papers submitted in opposition to the motion for summary judgment did he advance this assertion, nor did he oppose the motion for summary judgment on this ground or apply for a continuance to permit disclosure to be had.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Burton Sachs, Appellant, v Board of Education of the Mineola Union Free School District et al., Respondents.
    Argued April 21, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Noel D. Cohen and James R. Sandner for appellant.

      Charles D. Maurer and Henry A. Weinstein for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 898).

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


text:
    Nicholas Di Costanzo et al., Doing Business as Di Costanzo Holding Company, Appellants, v Allstate Insurance Company, Respondent.
    Submitted April 23, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Joseph P. Napoli, Stephen Kruger and Frank A. Weg for appellants.

      William Hart for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 834).

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


text:
    Donita L. Keel, Formerly Known as Donita Lent, Appellant, v Parke, Davis & Company, Respondent.
    Argued April 21, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Arthur N. Seiff and John J. Tullman for appellant.

      Joseph M. Costello and Michael Weinberger for respondent.
   OPINION OF THE COURT

Memorandum.

In affirming the order of the Appellate Division for the reasons stated in the memorandum at the Appellate Division, we note in particular its conclusion that, in essence, the dismissal of plaintiffs action following protracted and repeated delays was for neglect to prosecute (see Flans v Federal Ins. Co., 43 NY2d 881). Moreover, in contrast to Schuman v Hertz Corp. (17 NY2d 604), here the Justice presiding at Trial Term did not manifest an expectation that the suit would be able to be brought anew under CPLR 205 (subd [a]).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of T.P.K. Construction Corp., Appellant, v James C. O’Shea, as Commissioner of the Office of General Services of the State of New York, et al., Respondents.
    Argued April 22, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Steven Rubin for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed, with costs. From our review of the record, we cannot say that the commissioner was compelled to find that the appellant’s low estimate was a result of a failure to consider the need for waterproofing as opposed to a mere lack of skill in projecting costs. In any event, especially in view of the conspicuous absence of direct documentary proof of how the bid was prepared, we conclude that the commissioner’s refusal to allow it to be withdrawn was neither arbitrary nor capricious nor affected by an error of law (see Matter of Fisher [Levine], 36 NY2d 146, 150).

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

Order affirmed, with costs, in a memorandum.


text:
    Raymond Wright et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v Herb Wright Stucco, Inc., Defendant, and Jewel Builders, Inc., et al., Respondents.
    Argued April 25, 1979;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Carl Shoolman for appellants.

      David A. Stern for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the order of Supreme Court, Monroe County, reinstated for reasons stated in the dissenting memorandum at the Appellate Division (72 AD2d 960-961).

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


text:
    In the Matter of White Plains Properties Corp., Respondent, v Tax Assessor of the City of White Plains et al., Appellants. In the Matter of W. P. Properties Corp., Respondent, v Tax Assessor of the City of White Plains et al., Appellants.
    Argued April 24, 1980;
    decided May 29, 1980

      APPEARANCES OF COUNSEL

      Charles A. Bradley, Corporation Counsel (Paul B. Bergins and Paul S. Richmond of counsel), for appellants.

      Frederick J. Martin and Hugh D. Fyfe for respondents.
   OPINION OF THE COURT

Memorandum.

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

Since the Appellate Division affirmed Special Term’s finding that the building was not a specialty and it is not argued that there is no substantial evidence to support that conclusion we cannot reverse or modify (Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1, 7; Matter of Seagram & Sons v Tax Comm. of City of N. Y., 14 NY2d 314, 317). The only issue before us, therefore, is whether the evaluation method used was erroneous.

Special Term used an income approach based on 3% of gross sales but recognized that the reproduction cost less depreciation method used in valuing specialties nonetheless influenced its determination in that the valuation placed on the building through the income approach could not exceed depreciated reproduction cost. The city argues that the cost approach should have been used not as a maximum only but to adjust value upwards, citing G.R.F., Inc. v Board of Assessors of County of Nassau (41 NY2d 512, 514-515), which recognized that part of the construction cost of a "flagship” store may reflect not value to that store but value to the remainder of the shopping center. On the facts of this case the failure to make such an adjustment was not error. Here involved is not a "flagship” store but a freestanding department store in downtown White Plains. Moreover, the city did not demonstrate the legitimacy as a matter of economic theory of the adjustment for which it contends (id., p 515; cf. Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538).

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

Order affirmed, with costs, in a memorandum.


text:
    Yolanda Andrews, Respondent, v Thomas A. Andrews, Appellant.
    Submitted April 28, 1980;
    May 29, 1980
   Motion to dismiss the appeal herein denied.


text:
    David J. Angelone et al., Respondents, v City of Rochester, Appellant.
    Submitted April 28, 1980;
    decided May 29, 1980
   Motion to dismiss the appeal herein denied.


text:
    Jonestown Place Corp., Appellant-Respondent, v 153 West 33rd Street Corp. et al., Respondents-Appellants, et al., Defendants.
    Decided May 29, 1980
   Cross appeal by respondents-appellants dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Appellate Division order, insofar as it unanimously affirmed the July 5, 1979 Supreme Court order denying the motion to cancel the notice of pendency, does not finally determine the action within the meaning of the Constitution.


text:
    Niagara Falls Urban Renewal Agency, Respondent, v Pomeroy Real Estate Corporation et al., Appellants.
    Submitted May 5, 1980;
    decided May 29, 1980
   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 action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 38, pp 156-157).


text:
    Leon R. Switzer, Appellant, v Sanitary District No. 7, Town of Hempstead, Respondent.
    Submitted April 28, 1980;
    decided May 29, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 11).


text:
    In the Matter of Times-Union of the Capital Newspapers Division of the Hearst Corporation et al., Respondents, v Joseph Harris, as Judge of the County Court of Albany County, et al., Appellants.
    Submitted April 14, 1980;
    decided May 29, 1980
   Motions by appellants for leave to appeal dismissed and, on the court’s own motion, appeals taken as of right by appellants dismissed, without costs, each upon the ground that said appellants are not aggrieved parties. (See CPLR 5511; Matter of Ton-Da-Lay v Diamond, 36 NY2d 856.)


text:
    The People of the State of New York, Respondent, v Anthony Liccione, Appellant.
    Argued April 22, 1980;
    decided June 3, 1980
    APPEARANCES OF COUNSEL

      John R. Parrinello and John P. Lomenzo, Jr., for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of second degree murder relating to the killing of his wife. The most substantial issue raised on this appeal is whether certain statements made by the individual who fatally assaulted defendant’s wife, which were admitted as a part of the wife’s dying declarations, constituted inadmissible hearsay. The assailant’s statements, as communicated by the victim before she died, implicated defendant in a plot to kill his wife, and were received in evidence, on the theory that defendant and the assailant were coconspirators. Defendant now argues, inter alia, that the statements were not made in furtherance of the conspiracy and thus should not have been admitted under the coconspirator exception to the hearsay rule.

Whatever the merits of this contention, the issue is not preserved for review. For, although defendant specifically objected to the admissibility of the dying declaration qua dying declaration, and also specifically objected to the alleged failure of the prosecution to establish a prima facie case of conspiracy, no question was raised as to whether the assailant’s statements were made in furtherance of the conspiracy. These objections in this instance preserved only the grounds specified (see, generally, Richardson, Evidence [10th ed— Prince], § 538) and thus the precise issue argued is beyond our power of review.

The court has examined those of defendant’s remaining contentions which are reviewable and has found no reversible error.

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

Order affirmed in a memorandum.


text:
    Barbara Goldman, Individually and on Behalf of Others Similarly Situated, Appellant, v Anthony Garofalo et al., Respondents.
    Argued April 21, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      William I. Weisberg and Joan L. Weisberg for appellant.

      Joseph F. Carlino and Fred E. Scharf for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (71 AD2d 650).

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


text:
    Oil City Petroleum Co., Inc., Appellant, v Fabac Realty Corp. et al., Respondents.
    Argued April 22, 1980;
    decided June 3, 1980
    APPEARANCES OF COUNSEL

      Solomon M. Lowenbraun and Stuart L. Davis for appellant.

      Roger W. Kohn for Bharat Apartments, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

The petition for turnover relief pursuant to CPLR 5225 and CPLR 5227 was properly dismissed. These sections authorize a special proceeding to be commenced by the judgment creditor against "a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or * * * a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor’s rights to the property are superior to those of the transferee” (CPLR 5225, subd [b]), or "any person who it is shown is or will become indebted to the judgment debtor” (CPLR 5227). Here, none of these situations is present.

The record reveals that respondent Bharat Apartments purchased two parcels of realty from the judgment debtor prior to the commencement of this proceeding. There is no allegation that any part of the purchase price is still owing from Bharat to the judgment debtor, nor is there any evidence in the record that the judgment debtor assigned any leasehold interest it may have had to Bharat. In short, it appears that the judgment debtor divested itself completely of all interest in the properties and, under these circumstances, it cannot be said that the judgment debtor retained any interest whatsoever in the rents coming due Bharat. For this reason alone, the petition must be dismissed inasmuch as a turnover proceeding pursuant to CPLR 5225 and CPLR 5227 simply does not lie.

In light of our disposition, we need not address the other points raised by the parties.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Augustus Falcone, Respondent, v New York State Education Department et al., Appellants.
    Argued April 23, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John J. O’Grady, Shirley Adelson Siegel and William L. Wood, Jr., of counsel), for appellants.

      Thomas Láveme and Mark C. Kriss for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the Board of Regents and the order of the Commissioner of Education reinstated.

Petitioner, a licensed optometrist, allowed an ophthalmic dispenser to fit contact lenses under his supervision in violation of section 7121 of the Education Law. As a result, petitioner was found guilty of two charges of professional misconduct, to wit: (1) permitting, aiding or abetting an unlicensed person to perform activities requiring a license (Education Law, § 6509, subd [7]); and (2) unprofessional conduct (Education Law, § 6509, subd [9]).

In light of the finding that petitioner carried on his practice of optometry in clear contravention of existing law, we cannot say that the penalty imposed by the Board of Regents — a 6-month period of actual suspension followed by an 18-month period of probation — is so disproportionate to petitioner’s offense as to mandate modification. (Schaubman v Blum, 49 NY2d 375; Matter of Pell v Board of Educ., 34 NY2d 222.)

Accordingly, the Appellate Division erred in modifying the penalty imposed.

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

Judgment reversed, etc.


text:
    Joseph Sternberg et al., Individually and on Behalf of All Others Similarly Situated, Respondents, v Citicorp Credit Services, Inc., et al., Appellants.
    Argued April 24, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      John E. Hoffman, Jr., and Stephen F. Ellman for appellants.

      Edward Labaton, Mark J. Elder, Robert S. Schachter and Jonathan M. Plasse for Joseph Sternberg and another, respondents.

      Sheldon V. Burman for Robert P. Shafton, respondent.

      John H. Higgs and Michael B. Evanoff for Eastern States Bankcard Association, Inc., and another, amici curiae.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Harvey M. Berman and Douglas V. Ackerman of counsel), amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division (69 AD2d 352). Question certified answered in the affirmative.

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


text:
    In the Matter of Donald Sauer, Appellant, v Hugh Carey, as Governor and Chief Executive Officer of the State of New York, et al., Respondents.
    Argued April 23, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Jeffrey G. Plant and Gunter Dully for respondent.

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

Memorandum.

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

Although petitioner, a State trooper, is a member of the Policemen’s and Firemen’s Retirement System described in article 8 of the Retirement and Social Security Law (Retirement and Social Security Law, § 302, subd 11, par a), it is readily apparent from the language of the statute that the special provisions of subdivision c of section 402 contained within that article, are not available to him. Ordinarily, under subdivision c of section 402, a member of the retirement system who has retired as a result of a disability becomes entitled to be restored to active service when he is found to be medically fit for duty after an examination conducted by the medical board affiliated with the retirement system. Upon a finding of fitness, according to the statute, "the comptroller shall * * * certify the name of [the retiree] to the state civil service department or appropriate civil service commission” and "[t]he state civil service commission or [the appropriate] municipal commission shall place the name of such [retiree], as a preferred eligible, on the appropriate eligible lists prepared for it for positions for which such [retiree] is stated to be qualified” (Retirement and Social Security Law, § 402, subd c).

In the case of a State trooper, however, the "eligible lists” are prepared and the rehiring decisions are made not by a State or municipal civil service department, but rather by the Superintendent of State Police pursuant to the special powers conferred upon him by subdivision 3 of section 215 of the Executive Law (see, also, Matter of Shedlock v Connelie, 48 NY2d 943; Executive Law, § 227, subd 2). Since the language of subdivision c of section 402 of the Retirement and Social Security Law mandates only that a civil service department act upon the direction of the Comptroller, we conclude, in the absence of any indications to the contrary, that the Legislature did not intend the Superintendent of State Police to be bound by the medical determinations of the retirement system’s medical board. Accordingly, in the present case, the superintendent was free to conclude that petitioner was not medically fit to return to active service, notwithstanding the contrary finding of the medical board.

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

Order affirmed, with costs, in a memorandum.


text:
    Alfred Engel, Appellant, v City of New York et al., Respondents. William B. Pressman et al., Appellants, v City of New York et al., Respondents.
    Argued May 1, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Murray Rudman for appellants.

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (66 AD2d 715). Contrary to our normal policy of awarding costs to the prevailing party, we decline to do so in this case because of respondents’ delay in submitting their brief.

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


text:
    Leslie Katz, Appellant, v City of New York et al., Respondents.
    Argued May 1, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Murray Rudman for appellant.

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs (see Engel v City of New York, 50 NY2d 861, decided herewith).

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


text:
    In the Matter of the Arbitration between Jeff Lane, Appellant, and Coolidge Abel-Bey et al., Respondents.
    Argued April 29, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Lawrence E. Fabian for appellant.

      Thomas R. Levy for Coolidge Abel-Bey, respondent.
   OPINION OF THE COURT

Memorandum.

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

The individual parties to this litigation, being the holders of all of the outstanding shares of the corporate respondent, executed a stockholders’ agreement imposing restrictions on the disposition of their shares of corporate stock and making provisions with respect to the election of directors and the management of the corporation and as to the compensation to be paid to each of the shareholders as corporate employees. The agreement recited that thé corporation was a party, but it was never executed on behalf of the corporation. In addition to its substantive provisions, the agreement contained a broad arbitration clause — "All disputes arising in connection with this agreement shall be finally settled by arbitration”.

Differences having arisen between one of the shareholders, Dr. Abel-Bey, and the others as to the failure of the corporation to have entered into an employment contract with Dr. Abel-Bey and with respect to compensation and other amounts paid by the corporation to the others, Dr. Abel-Bey duly served a demand for arbitration with the appropriate statutory notice. The demand was addressed to the other three shareholders and to the corporation. Petitioner, individually, made á timely application for a stay of arbitration on the grounds that the corporation was not a party to the agreement to arbitrate and that the three claims sought to be arbitrated were not within the scope of the arbitration agreement. Supreme Court denied the application with respect to the first claim, but granted it as to the other two claims. The Appellate Division modified by denying the stay as to the other two claims. We now affirm.

Whether the corporation was bound by the arbitration agreement of all its shareholders was a threshold question. Inasmuch as this question was not raised by the corporation in a timely application for a stay, that issue may not now be raised by the corporation or by anyone on its behalf (CPLR 7503, subd [c]).

We agree with the Appellate Division that all three claims fall within the scope of the arbitration agreement and that no considerations of public policy preclude their submission to arbitration.

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

Order affirmed, with costs, in a memorandum.


text:
    C. A. Frank & Company, Inc., Appellant, v Corland Corporation, Respondent.
    Argued April 29, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Edwin L. Schwartz and Alison Rivard for appellant.

      J. L. Himes and Martin London for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 802).

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


text:
    The People of the State of New York, Respondent, v Abraham Payne, Appellant.
    Argued May 1, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Paul A. Feigenbaum for appellant.

      Mario Merola, District Attorney (Vida M. Alvy and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant relies principally on two asserted errors. First, he contends that it was error to deny his motion to preclude cross-examination, in the event he took the witness stand, with respect to his 1973 misdemeanor conviction for illegal possession of a pistol. There was no error of law in this ruling which would warrant our disturbing the rejection of appellant’s arguments by the Appellate Division (People v Mackey, 49 NY2d 274).

Second, appellant contends that the trial court erred in permitting the prosecutor, over objection, to cross-examine defendant’s alibi witness, Archie Miller, as to why he had not gone to the police or to the District Attorney to relate his version of the events to which he testified on trial. This was not error (People v Dawson, 50 NY2d 311). Nothing in the content or manner of cross-examination suggested or implied that the witness was under any duty to go to the police or the District Attorney, and in any event appellant requested no curative instruction (cf. People v Dawson, supra, at p 322).

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

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert L. Bell, Appellant.
    Argued April 29, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      William J. McClusky for appellant.

      Lee Clary, District Attorney (Donald R. Gerace of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted and the case remitted to the Jefferson County Court for further proceedings on the indictments.

The defendant arrested, arraigned and held in custody on one charge was questioned by the police about that charge and another unrelated incident. The hearing court properly held that the statement should be suppressed insofar as it relates to the charge on which the defendant was being held in custody (see People v Hobson, 39 NY2d 479). We now hold that the remainder of the confession should be suppressed although it concerns an unrelated incident (see People v Rogers, 48 NY2d 167; see, also, People v Settles, 46 NY2d 154; People v Samuels, 49 NY2d 218). The fact that the questioning may have been prompted by the defendant’s remarks does not render his answers spontaneous (People v Tompkins, 45 NY2d 748). We find no merit to the prosecutor’s argument that People v Rogers (supra), should not be applied retroactively. That decision was based on People v Hobson (supra), which has been applied to cases on appeal at the time the case was decided (see, e.g., People v Macedonio, 42 NY2d 944).

Chief Judge Coqke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Jasen concurs on constraint of People v Rogers (48 NY2d 167).

Order reversed, etc.


author: Gabrielli, J.

text:
    In the Matter of the Claim of Alma P. Adolf, Appellant, v City of Buffalo Board of Education, Respondent. Workers’ Compensation Board, Respondent.
    Argued April 23, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      Frank S. Kedzielawa and Gerard R. Fornes for appellant.

      Joseph P. McNamara, Corporation Counsel (Frank E. Barbee of counsel), for City of Buffalo Board of Education, respondent.
   OPINION OF THE COURT

Memorandum.

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

Section 25 (subd 4, par [a]) of the Workers’ Compensation Law entitles an employer to reimbursement out of compensation due when he has either made advance payment of compensation or continued payment of wages. The only statutory limitations on that right are that it may be waived by filing a document so stating with the chairman of the board and it may be lost by failing to file a claim before compensation is awarded.

Though nothing in the section proscribes a contractual waiver by the employer, the contract provision here in question is insufficient to limit the reimbursement right to the weekly compensation benefit paid rather than the full wages advanced. By that provision the board of education agreed to continue regular pay during disability and the union agreed for its members that "the salary allowance paid the teacher under Workmen’s Compensation will be assigned to the Board.” The assignment was wholly unnecessary since the board had a statutory right to reimbursement without, it. The provision was, however, meaningful for the teachers since it gave them full pay during disability rather than reduced compensation benefits. Nothing in the arrangement made and nothing in the record suggests that the use of the words "salary allowance” was intended as a waiver by the board of its right to the difference between regular pay and benefits and that allowance. The conclusion argued for by the dissenters as the "plain meaning” of the contract provision reads into that provision a limitation which cannot be found in its language, on the basis of an assumption (that "it was evidently intended to completely regulate the relationship”) for which there is no support in the record.

Gabrielli, J.

(dissenting). I respectfully dissent.

During the course of her employment as a supervisor of teachers, claimant was struck in the right eye by a pellet shot from an air gun and lost the eye as a result. Pursuant to the terms of a collective bargaining agreement between her employer, the City of Buffalo Board of Education, and the teachers’ union, the board continued to pay her full salary during the period of actual disability. She applied for workers’ compensation benefits and was awarded the schedule amount for her permanent injury. The school board now seeks reimbursement from that award for the full amount of salary paid claimant during the period of her disability up to the total amount of the award. Although she concedes that the board is entitled to some reimbursement, claimant contends that the board’s right of reimbursement from the award is limited to the amount of the workers’ compensation salary allowance payable for the weeks during which she actually received her salary. Hence, it is claimant’s position that the school board is not entitled to reimbursement from so much of the actual award as exceeds the salary allowance she would have received for the weeks during which she received her pay while disabled had her injury not been a permanent one resulting in a schedule loss and award.

An employer is provided by statute with a right to reimbursement from a workers’ compensation award for any "payments to an employee in like manner as wages during any period of disability” (Workers’ Compensation Law, § 25, subd 4, par [a]). Although the existence of this right to reimbursement is certain, its extent has been the source of some uncertainty in the law. Thus, in Matter of Ott v Green-Wood Cemetery (262 NY 532) this court affirmed, without opinion, an order of the Appellate Division, Third Department (237 App Div 860), which held that when an employee who has previously received payments from his employer during disability is subsequently given a workers’ compensation schedule award for a permanent injury, the employer is entitled to reimbursement for the full amount paid out, up to the limits of the entire award. Subsequently, however, in Matter of Lynch v Board of Educ. (3 NY2d 871), we affirmed, without opinion, an order of the Appellate Division, Third Department (1 AD2d 362), in which it was held that a different rule applies if the employee receives from workers’ compensation an award of weekly compensation for a period of temporary disability instead of the schedule amount for a permanent injury. In such a case, according to the Lynch decision, the employer is entitled only to reimbursement in the amount of the weekly disability payments for those weeks during which the employer actually made payments to the employee.

Although the Appellate Division in Lynch deemed Ott distinguishable because Ott involved a schedule award whereas Lynch involved temporary disability payments, this distinction is somewhat less than persuasive. The rationale for limiting reimbursement in Lynch to the weekly salary allowance for those weeks in which the employer had paid the employee’s salary, was that it would be unreasonable to permit reimbursement for those weeks from disability payments which were intended to recompense the employee for subsequent weeks of disability during which the employer made no payments. The same is true, however, in the Ott- type situation. A schedule award, such as in the case before us, is intended to reimburse the employee for future as well as past losses caused by the injury (see 2 Larson, Workmen’s Compensation Law, § 58.11), and it would seem equally unreasonable to allow the employer in such a case to obtain reimbursement for past payments from that portion of the schedule award intended to cover future losses. Hence, the continuing viability of the Ott decision is somewhat uncertain, to say the least, in light of our affirmance of the result, albeit not the rationale, in Lynch. Accordingly, it may well be that even absent a contractual limitation upon the employer’s right of reimbursement, that right is nonetheless limited to an amount equal to the workers’ compensation salary allowance for the weeks during which the employer made payments, regardless of the nature of the award. Indeed, such would appear a much more rational approach, for to apply Ott to schedule awards and Lynch to nonschedule awards is to increase the employer’s reimbursement and decrease the actual amount available to the employee in those situations in which the injury to the employee is permanent and more serious. Such a result makes little sense (see 2 Larson, Workmen’s Compensation Law, § 57.47).

In the instant case, however, there exists no need to determine whether the Ott rule has been impliedly overruled by our subsequent decision in Lynch, or whether it should now be overruled, because the collective bargaining agreement between the school board and the teachers’ union representing claimant limits the employer’s right of reimbursement in all cases to an amount equal to the workers’ compensation salary allowance payable for the weeks during which the school board continued to pay the disabled teacher her salary. The pertinent provision of the contract provides as follows: "Days allowed for absence due to injuries suffered on school premises or in line of duty covered by Workmen’s Compensation * * * shall not be deducted from sick time allowance. In such circumstances, the [school] Board will continue to pay the teacher his regular pay and benefits for the period involved and the salary allowance paid the teacher under Workmen’s Compensation will be assigned to the Board. The Board and the [union] shall review all such absences which persist for more than one (1) year to determine whether the teacher shall continue to be paid without deduction from sick time allowance” (emphasis added). Nothing could be plainer. As is evident from its language, this provision was intended to completely regulate the relationship between the board and a teacher who sustains a job-related injury. It requires the employer to continue to make full salary payments for a period of at least one year, and limits the employer’s statutory right of reimbursement to the weekly salary allowance payable under workers’ compensation. As is conceded by the majority of this court, there exists no statutory or policy bar to enforcement of such a limitation upon the employer’s right of reimbursement, and I perceive no justification for not applying this provision in accordance with its plain language.

I cannot agree with the majority that the language quoted above does not limit the school board’s right of reimbursement. Such an interpretation of the provision renders the contractual references to that right completely meaningless. The majority interprets the contract as though it either made no reference to, and thus could not modify, the statutory right of reimbursement, or as if it simply incorporated the statutory right completely. Clearly, the contract does neither of these things. It delineates the extent of reimbursement the parties have agreed to, and it provides for reimbursement somewhat less than that allowed under the statute, assuming the Ott rule to be good law. Hence, the provision should be interpreted as meaning exactly what it says, and must be applied as a limitation upon the employer’s right of reimbursement from the workers’ compensation award.

Accordingly, I vote to reverse the order appealed from and to remit the matter to the Workers’ Compensation Board for further proceedings in accord with this opinion.

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

Order affirmed.

       Indeed, in most jurisdictions no reimbursement whatsoever may be obtained from a schedule award (2 Larson, Workmen’s Compensation Law, § 57.46, at pp 10-103, 10-104).


text:
    Saul Weinberg et al., Appellants, v Eric Shafler et al., Respondents.
    Submitted April 30, 1980;
    decided June 3, 1980

      APPEARANCES OF COUNSEL

      B. Edward Jaffe for appellants.

      Victor M. Meyers for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (68 AD2d 944) inasmuch as that view more nearly conforms to the weight of the credible evidence.

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


text:
    In the Matter of Mark "GG”, a Child Alleged to be Neglected. Clinton County Department of Social Services, Respondent; Franciska J. "GG”, Appellant.
    Submitted May 12, 1980;
    decided June 3, 1980
   Motion to dismiss the appeal denied. Motion for a preference denied as unnecessary. Case will be calendared in normal course for September, 1980 session. Motion by Clinton County Department of Social Services for leave to intervene as a party appellant denied.


text:
    Felix Cosme, Respondent, v Town of Islip et al., Appellants. Felix Cosme, Respondent, v Gregory Munson et al., Appellants.
    Submitted May 19, 1980;
    decided June 3, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and therefore, is not one which comes within the provisions of CPLR 5602 (subd [a], par 2) (see, e.g., Herman Constr. Co. v State Univ. Constr. Fund, 41 NY2d 943).


text:
    In the Matter of General Camera Corporation, Appellant, v New York State Urban Development Corporation et al., Respondents.
    Submitted April 28, 1980;
    decided June 3, 1980
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that no appeal lies as of right from the order of the Appellate Division.


text:
    In the Matter of John Grossman, Appellant, v Parole Board of the State of New York, Respondent.
    Submitted June 2, 1980;
    decided June 3, 1980
   Motion to withdraw appeal granted and appeal withdrawn.


text:
    Ralph Rappaport, Plaintiff, v Leo Blank et al., Defendants, B. B. M. Realty Corp. et al., Appellants, and Irving Miller, Respondent.
    Submitted May 19, 1980;
    decided June 3, 1980
   Motion to dismiss the appeal 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 action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 39, pp 157-158).


text:
    Morton Dinerstein et al., Petitioners, and Craig Small, Appellant, v Board of Education of the City of New York et al., Respondents.
    Argued April 25, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Paul Henry Janis and James R. Sandner for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. McGrath and Ronald E. Sternberg of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Special Term correctly determined that petitioner, laid off from his tenured position in the license area of teaching the homebound, was entitled to revert to his former license area of teaching earth science in day high schools. Respondent improperly denied the application on the ground that petitioner, nontenured in the area to which he sought to revert, could not displace a tenured teacher in that area.

Respondent’s reliance on section 2588 (subd 3, par [a]) of the Education Law is misplaced. That section governs layoffs and expressly provides that layoffs in the tenure area are to proceed on the basis of least seniority in the city school district, "provided that the services of a person who has acquired tenure within such tenure area shall not be discontinued if another person holding a position within such tenure area has not acquired tenure”. In contrast, section 2588 (subd 4, par [a]) of the Education Law governs reverting to a position in the tenure area where the individual previously served. All that is required to entitle a person to displace another is that the applicant have "greater seniority, based on length of service as a member of the teaching or supervisory staff in the city school district” (Education Law, § 2588, subd 4, par [a]). Under the express language of the statute, the right to revert to and displace a teacher in a former area is dependent only upon previous service under regular appointment in the area and system seniority. Had the Legislature determined that tenure in the area was a relevant factor for reverting, it would have provided for it expressly. It would be inappropriate for this court to read that criterion into the statute when the Legislature declined to do so.

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

Order reversed, etc.


text:
    Philip D. Rupert, Jr., Plaintiff, and Rupert & Lutz Agency, Inc., Appellant-Respondent, v Charles J. Sellers, Jr., et al., Respondents-Appellants.
    Argued April 28, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Lewis A. Kaplan, Richard Kurnit and Joseph L. Watson for respondents-appellants.

      James M. Hartman and Edward H. Fox for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendants’ claim concerning the propriety of the charge to the jury is not preserved for review (CPLR 4110-b), as defendant not only failed to object to the court’s instruction, but in fact requested a charge which was substantially the same as the one rendered. Nor can it be said, as a matter of law, that the verdict of the jury, under the instructions given, is unsupported by the record. Defendants’ remaining contentions have been examined and found to lack substantial merit.

On plaintiff’s cross appeal, we find no error in the disallowance of preverdict interest. It is a settled rule that preverdict interest is not obtainable as of right in a libel action (e.g., Wilson v City of Troy, 135 NY 96, 105). Any change in this rule should be effected legislatively, and not judicially (see Purcell v Long Is. Daily Press Pub. Co., 9 NY2d 255, 259).

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v James Prince, Appellant.
    Argued April 30, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Harry H. Levine for appellant.

      Eugene Gold, District Attorney (A. David Stern of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s statement to Assistant District Attorney Friedman suppressed and a new trial ordered.

It being undisputed that defendant’s second statement was made in custody after he had requested the assistance of counsel, suppression of that statement is required (People v Cunningham, 49 NY2d 203). In the circumstances here presented, reception of that tainted statement into evidence cannot be deemed harmless error (see People v Garofolo, 46 NY2d 592). We have examined defendant’s remaining contentions and find them to be without merit.

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

Order reversed, etc.


text:
    Roy M. Cohn et al., Appellants, v National Broadcasting Co., Inc., et al., Respondents.
    Argued April 28, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Louis Biancone, John F. Lang, Vincent P. Nesci and Howard F. Husum for appellants.

      John C. Sabetta for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed for the reasons stated in the opinion of Mr. Justice Fein at the Appellate Division (67 AD2d 140).

We agree with the court below that none of the individual passages of which plaintiffs complain are defamatory as to them. We would add only that in our view the cumulative effect of all of such passages cannot be said to be defamatory. While it is true that the courts " 'will not strain’ to interpret [allegedly defamatory works] 'in their mildest and most inoffensive sense to hold them nonlibelous’ ” (November v Time Inc., 13 NY2d 175, 178, quoting Mencher v Chesley, 297 NY 94, 99), it is also true that courts will not strain to find a defamatory interpretation where none exists (see Tracy v Newsday, Inc., 5 NY2d 134).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Eric Reyes, Respondent.
    Argued April 25, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Carol Ethridge Gette and Jerrold L. Neugarten of counsel), for appellant.

      Elaine Stogel and William E. Hellerstein for respondent.
   OPINION OF THE COURT

Order reversed for the reasons stated in the dissenting memorandum by Mr. Justice Samuel J. Silverman at the Appellate Division (66 AD2d 753, 754) and the case remitted to the Appellate Division, First Department, for determination of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]).

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


text:
    Board of Education of Freeport Union Free School District, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, Respondent. In the Matter of Jose Santiago et al., Appellants-Respondents, v Board of Education of Union Free School District No. 9, Freeport, Town of Hempstead, Respondent-Appellant, et al., Respondents.
    Submitted April 25, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Alfred W. Charles and Irving M. Wall for Board of Education of Freeport Union Free School District, appellant and respondent-appellant.

      Carl Jay Nathanson and Leonard S. Clark for Jose Santiago and others, appellants-respondents.

      Kenneth Pawson, Robert D. Stone and Jean M. Coon for Ewald B. Nyquist, as Commissioner of Education of the State of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

This appeal involves two actions, one an action for a declaratory judgment and the other a proceeding under CPLR article 78. The central issue in contention in each is whether, following the refusal of the voters to approve a school budget and the adoption by the board of education of an austerity budget for the school year 1976-1977 pursuant to section 2023 of the Education Law, expenses for pupil instructional supplies are "ordinary contingent expenses” and therefore includable within the austerity budget. On motion of the board of education, as plaintiff in the first action and as respondent in the article 78 proceeding, the actions were consolidated.

The board then moved for summary judgment declaring the rights and remedies of the parties. Supreme Court granted the motion and made a declaration of rights substantially in conformity with the contentions of the board of education and the petitioners in the article 78 proceeding, to wit, that "such students’ instructional supplies as are reasonably related to a recognized part of a public elementary or secondary school curriculum are a proper charge as an ordinary contingent expense”.

On appeal the Appellate Division concluded that a bulletin (with attachment) of the Department of Education which took a contrary position did not constitute a determination with respect to which judicial review could be sought and pointed both to the availability of a reference to the Commissioner of Education for a pertinent decision pursuant to section 2024 of the Education Law and to the desirability of obtaining such a decision prior to seeking judicial redress. Accordingly, the Appellate Division declined, on the stated grounds, to entertain the application for declaratory relief and directed that both the complaint and the petition be dismissed.

The granting of declaratory relief is discretionary (CPLR 3001). We cannot say that the declination to entertain the applications for such relief in this instance constituted an abuse of discretion as a matter of law or that there was otherwise any failure to conform to the prescriptions of CPLR 3001.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Herbert Green, Appellant.
    Argued March 20, 1980;
    decided June 5, 1980

      APPEARANCES OF COUNSEL

      Susan E. Hofkin and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (David S. Mann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the court’s charge to the jury on intent refers to a "rule of evidence” to the effect that a person is presumed to intend the natural consequences of his acts, the court’s explanation of the rule makes it clear throughout that the jury had a choice and that it was for them to decide from all the circumstances in the case whether the People had met their burden of proving that the defendant actually intended the result. This in our view distinguishes Sandstrom v Montana (442 US 510, 515) where the court noted that the charge was given without qualifications or explanations; the jurors "were told only that the law presumed it” (see, also, People v Getch, 50 NY2d 456). We note, however, that in the future the courts would be better advised to avoid using the charge that was employed in this case.

With respect to the defendant’s other contention we find that the charge read as a whole adequately informed the jury that the prosecutor had the burden of proving beyond a reasonable doubt that the defendant took the car permanently or for an extended period of time as defined by statute (Penal Law, § 155.00, subd 3) and that the defendant did so intentionally.

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

Order affirmed in a memorandum.


text:
    Kay Jolan et al., Appellants, v Walter J. Johnson, Inc., Respondent, et al., Defendant.
    Submitted May 19, 1980;
    decided June 5, 1980
   Motion to dismiss appeal as against Walter J. Johnson, Inc., denied.


text:
    Miller Manufacturing Company, Inc., Appellant, v Norman Zeiler, Respondent.
    Submitted May 12, 1980;
    decided June 5, 1980
   Motion for leave to appeal denied with $20 costs and necessary reproduction disbursements.

Judge Meyer taking no part.


text:
    Michael E. Vogel, Respondent, v Asgrow Mandeville Company, Inc., Appellant.
    Decided June 5, 1980
   Appeal dismissed, withouts costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Clark v Ancorp Nat. Servs., 46 NY2d 710, 940; Heller v Hirschfeld, 44 NY2d 641, 732; United Ind. Corp. v Shreiber, 39 NY2d 1015; Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [c]).


text:
    The People of the State of New York, Respondent, v John Hill, Appellant.
    Argued May 29, 1980;
    decided June 6, 1980
   Appeal dismissed upon the ground that appellant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900; People v Wardlow, 48 NY2d 669).

Judge Meyer taking no part.


text:
    In the Matter of the Arbitration between Liberty Mutual Insurance Company, Respondent, and Arlene Stollerman et al., Respondents, and Banner Casualty Company, Appellant.
    Argued May 2, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Bernard Meyerson for appellant.

      Douglas A. Bolckman and A. Paul Goldblum for Liberty Mutual Insurance Company, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (70 AD2d 643).

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


text:
    Robert G. Baron, Appellant, v William M. Lombard, as Sheriff of Monroe County, et al., Respondents.
    Submitted May 2, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Alfred P. Kremer for appellant.

      Deborah S. Gerber and John D. Doyle for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (71 AD2d 823).

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


text:
    The People of the State of New York, Respondent, v Nelson Allen, Appellant.
    Argued May 2, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Stewart E. Sterk for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion by Presiding Justice Milton Mollen at the Appellate Division. In addition we would note that we do not agree with the defendant that every error which improperly curtails a defendant’s right to cross-examine a prosecution witness with respect to prior criminal acts is per se reversible error. That would be particularly inappropriate in cases such as this, where the witnesses’ prior criminal history was extensively explored on cross-examination although not totally or definitively set forth as the defendant may have wished.

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

Order affirmed in a memorandum.


text:
    Ruth Hubbell, Individually and as Executrix of Samuel N. Hubbell, Deceased, Appellant, v Trans World Life Insurance Company of New York, Respondent.
    Argued April 28, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Valentine A. Meehan, Marvin Malin and Thomas J. Craig, Jr., for appellant.

      Albert D. Jordan, Mitchell J. Geller and Robert M. Kerrigan for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff seeks recovery for compensatory and punitive damages for defendant insurer’s alleged bad faith and unlawful conduct in dealing with her claim under her deceased husband’s insurance policy. So much of the complaint as seeks compensatory damages is barred by the doctrine of res judicata. There is nothing to indicate the present action grows out of any facts not known when the prior action was brought to recover on the policy but which subsequently came to light either in the course of the insurer’s defense of the first action or thereafter (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5011.17, pp 50-104 to 50-105).

Moreover, assuming section 40-d of the Insurance Law can be read to create a private cause of action, the allegations of the complaint were insufficient to bring the case within that statute, which proscribes only unfair business practices (Halpin v Prudential Ins. Co. of Amer., 48 NY2d 906, 908). In particular, nothing has been shown, either via records of the Insurance Department or records of other litigation involving the same carrier or by any other means, to demonstrate that the conduct complained of by the plaintiff occurred in more than this isolated instance.

Finally, we note that absent a valid claim for compensatory damages, there could be none for punitive damages even if the insurer’s refusal to pay the benefit due under the policy in the circumstances here could be said to be such a gross disregard of its contractual obligations as to constitute morally culpable conduct for which punitive damages might be claimed (see Sukup v State of New York, 19 NY2d 519, 522).

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

Order affirmed, without costs, in a memorandum.


author: Meyer, J.

text:
    The People of the State of New York ex rel. Simon Douglas, Jr., Appellant, v Leon J. Vincent, as Superintendent of Green Haven Correctional Facility, Respondent.
    Argued April 22, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Domenick J. Porco for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed on so much of the reasoning of that court’s Per Curiam opinion as relates to the procedural limitation which places the petitioner’s grievances beyond habeas corpus relief.

In addition we would note that even if there were merit to the relator’s contention that he was denied effective assistance of counsel at trial or on appeal he would not be entitled to habeas corpus relief because the only remedy he seeks would provide him a new trial or new appeal, and not a direction that he be immediately released from custody.

We do not consider it appropriate to suggest what type of proceeding relator may pursue. Thus we express no view as to whether the contention that relator was deprived of effective assistance of counsel on appeal may be heard in a proceeding in the nature of coram nobis.

Meyer, J.

(dissenting). In People v Gonzalez (47 NY2d 606), applying the rule declared by the United States Supreme Court in Anders v California (386 US 738), we reversed and remitted to the Appellate Division for de novo consideration of the appeal because defendant had been deprived of his constitutional right to the effective assistance of counsel on his appeal to the Appellate Division. In that case leave to appeal had been granted by a Judge of our court. In this case, notwithstanding a strong prima facie indication of ineffective assistance of appellate counsel, defendant is out of court because his grievance is beyond habeas corpus relief.

For us to hold that there is no procedure whereby defendant can raise in our State courts the question whether he was denied effective assistance on his appeal is simply to shunt him into the Federal courts, where, ironically, the issue will be dealt with via Federal habeas corpus. More importantly, to do so is to denigrate the guarantee of section 6 of article I of our State Constitution that "the party accused shall be allowed to appear and defend in person and with counsel”, by confessing that New York’s courts are powerless to enforce that guarantee unless the Legislature in explicit terms permits them to do so. Since I do not agree that the role of the courts in our constitutional system of government is or should be, so feckless, I respectfully dissent. In my view, the Trial Judge was correct in concluding that a means of presenting the issue exists, but since practical considerations make coram nobis a better vehicle than habeas corpus in any event, I would, the District Attorney being party to the proceeding through intervention pursuant to CPLR 7011, reverse the order of the Appellate Division, Second Department, with directions to transfer the matter to the Appellate Division, Fourth Department, for that court to consider the application under its common-law coram nobis jurisdiction or to grant petitioner permission to file a writ of error coram nobis in the County Court for the purpose, in either case, of having the factual issues involved in the claimed ineffective assistance of counsel on the appeal considered.

We have not previously been so deferential to the legislatively enacted procedural limitations when dealing with constitutional rights. Thus, in People ex rel. Klein v Krueger (25 NY2d 497, 501, 503) we noted that "constitutional limitations * * * perforce override any statutory distributions of judicial power or appealability” and that "no procedural or jurisdictional problem intervenes if only because the constitutional mandates * * * are paramount and controlling over any statutory distribution of judicial power, appealability, and reviewability.” Likewise, under constitutional compulsion and "without benefit of controlling decision, statute or rule”, we worked out appropriate procedure for holding hearings as to voluntariness of confessions (People v Huntley, 15 NY2d 72, 74). The State may define the mode for vindication of Federal constitutional rights, but if it affords none either through legislation or through our exercise of the power so emphatically recognized in Klein and Huntley, the Federal courts will.

While we have also noted the " 'great flexibility and vague scope’ ” of the writ of habeas corpus (People ex rel. Keitt v McMann, 18 NY2d 257, 263) and held that when dictated by reason of practicality and necessity the right to invoke the writ "may take precedence over 'procedural orderliness and conformity’ ” (id., at p 262, quoting from People v Schildhaus, 8 NY2d 33, 36), the real issue here is not whether habeas corpus can be used to right the constitutional wrong resulting from the ineffectiveness of appellate counsel, but whether there exists another appropriate proceeding.

Considered as a common-law matter, there is no question that coram nobis is available, indeed is the exclusive remedy, to test the question whether defendant was unconstitutionally deprived of his right to counsel (People ex rel. Sedlak v Foster, 299 NY 291, 294; Matter of Bojinoff v The People, 299 NY 145, 152; People v Gersewitz, 294 NY 163, 168; see Matter of Hogan v Court of Gen. Sessions, 296 NY 1, 9; Matter of Morhous v New York Supreme Ct., 293 NY 131, 136, 140), including the right to counsel on appeal (People v Lampkins, 21 NY2d 138). That CPL article 440, which incorporates coram nobis procedure, limits the constitutionality ground to whether "the judgment” was obtained in violation of defendant’s rights should not, in my view, be construed as abolishing the common-law use of that writ to determine , whether defendant was deprived of his right to the effective assistance of counsel on appeal. There are several reasons for that conclusion. First, as Justice Richard G. Denzer’s Practice Commentary to article 440 indicates, enactment of the article was intended to reduce the number of instances in which Federal review of New York judgments would be required (McKinney’s Cons Laws of NY, Book 11 A, CPL 330 to 499, p 179), and nothing in any of the four sections of the article indicates that it was intended to abolish the common-law writ in situations not covered by the article (cf. People v Huntley, 15 NY2d 72, 76-77, supra; Fleury v Edwards, 14 NY2d 334, 337-338; see People v Corso, 40 NY2d 578). Second, and most important, coram nobis obviates the potential for disruption from the Special Term order to which the Appellate Division memorandum refers (see, also, People v Huntley, 15 NY2d 72, 76, supra; Matter of Morhous v New York Supreme Ct., 293 NY 131, 140, supra). This is because the writ is addressed to the court which rendered the judgment or order from which relief is sought. Where, as here, it is the Appellate Division’s order that is questioned, the application should be to that court, asking that it either entertain the writ itself or grant petitioner permission to file the writ in the trial court (Taylor v Alabama, 335 US 252, 261; see 18 Am Jur 2d 463-464, Coram Nobis, § 10). Whether in the Appellate Division or the County Court, however, coram nobis makes possible a hearing on contraverted questions of fact outside the original record (Matter of Morhous v New York Supreme Ct., 293 NY 131, 140, supra; Matter of Hogan v Court of Gen. Sessions, 296 NY 1, supra; Matter of Lyons v Goldstein, 290 NY 19) and is to be preferred to the order here made by Special Term because resentencing for the purpose of allowing a further appeal will not get into the record the factual material on which the issue of ineffectiveness of appellate counsel on the prior appeal depends (cf. People v Brown, 45 NY2d 852), at least, will not do so unless the Appellate Division on such a further appeal remands for a hearing on those facts.

Provided defendant’s papers make a prima facie showing of ineffectiveness of counsel, we should, therefore, the Monroe County District Attorney being party to the proceeding, reverse with directions to transfer the proceeding to the Appellate Division, Fourth Department, for consideration by it as one for common-law coram nobis or alternatively for it to grant petitioner permission to make such an application to the County Court. There is reason enough for so doing, rather than affirming while remaining silent concerning the availability of coram nobis, in the indistinct procedural path indicated by what is set forth in this opinion and in the opinions below. While we should not reach out to decide issues not before us, we may and should on an issue such as this tell appellant not only what he may not do procedurally but also what he may, rather than drive him from pillar to post.

The pillar to post aspects of this case are suggested by the words emphasized by the Appellate Division in its quotation from People ex rel. Knox v Smith (60 AD2d 789, mot for lv to app den 43 NY2d 647), which were apparently intended to inform petitioner that he could not proceed by way of habeas corpus because that writ could not be used to review issues which could have been raised on appeal. If the suggestion is that counsel on the original appeal to the Fourth Department could have in his application for leave made to a Judge of this court raised the issue of ineffectiveness of counsel on appeal, as did the appellant in Gonzalez, there is an obvious Catch-22 involved. Gonzalez was fortunate enough to have different counsel in the two courts; Douglas had the same attorney in both courts.

Nor is that the only indication in the papers on this appeal that appellate counsel on the prior appeal was ineffective. I do not suggest, as the Appellate Division (67 AD2d, at p 590) seemed to fear ("in any situation in which a claimed error has not been raised on appeal it could conceivably be argued that appellate representation was inadequate in failing to do so”) that a hearing need be held when the application sets forth no more than the magic words "ineffectiveness of counsel”. But I reject out of hand, because this court has done so emphatically in People v Emmett (25 NY 354, 356), repeated in People v Gonzalez (47 NY2d 606, 611), the makeweight suggestion that the Fourth Department’s practice (noted by its statement in People v Stubbs, 30 AD2d 932, that it, had examined "with care the entire record including the severity of the punishment”) constitutes an acceptable substitute for effective assistance of appellate counsel.

Here, the central issue of the trial was whether defendant acted in self-defense. Yet the brief filed on the original appeal to the Appellate Division contained but seven pages, of which only two were devoted to legal argument, no mention of the self-defense issue being made in those seven pages. Apparently, the only points that appellate counsel could find in the record (though 10 months elapsed from assignment to the filing of the brief) were that the Trial Judge erred in charging that defendant’s statement constituted a confession and that the verdict of the jury was against the weight of the evidence, for those were the only points he raised. No mention was made of the Trial Judge’s instruction to the jury on self-defense (that "defendant seems to claim that he acted in self-defense” [emphasis supplied]), that the instruction failed to inform the jury that it was sufficient if defendant had reasonable grounds to believe he was in danger of injury from decedent and not necessary that he have been in danger in fact, that the charge was not entirely clear with respect to burden of proof on the issue of self-defense or that it failed to relate the law meaningfully to the facts. I am not concluding on the papers before us that defendant will be successful if he obtains the right to an effective appellate review. Indeed, the ultimate determination is not one we should make (People v Gonzalez, 47 NY2d 606, 610, supra). Nor do I rule out the possibility that a coram nobis hearing will reveal that counsel on the Fourth Department appeal had good and sufficient reason for the omissions above noted. What I do find in the papers before us is a prima facie demonstration of ineffectiveness sufficient to require the Appellate Division, Fourth Department, after a hearing held before it or before the County Court, to pass upon the question whether defendant has been deprived of his constitutional rights.

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

Order affirmed, without costs, in a memorandum.

      . Since there was no appeal from the order determining the common-law writ (People v Gersewitz, 294 NY 163, supra), and the broad right of appeal later provided by subdivision 6 of section 519 of the Code of Criminal Procedure (see, also, People v Lampkins, 21 NY2d 138, supra) has been transposed in CPL 450.15 into reference to article 440 only, there would appear to be no State appeal from an order made in a present day common-law coram nobis proceeding. Certiorari to the United States Supreme Court directly from the coram nobis determination would, however, be available (Gayes v New York, 332 US 145; Canizio v New York, 327 US 82), as, of course, would Federal habeas corpus. Continuance of common-law coram nobis in cases such as the present would not, therefore, eliminate Federal review but it would certainly comport with the purpose of reducing the instances in which Federal review would be required.

      . The practicality underlying Emmett and Gonzalez is underscored by the fact that the dissent on the original appeal in the instant case discussed only the points briefed by counsel and contained no indication that the self-defense point discussed below had been considered. To expect appellate courts routinely to search out new issues is simply unrealistic.


text:
    The People of the State of New York, Respondent-Appellant, v Patricia Cohen, Appellant-Respondent.
    Argued April 28, 1980;
    decided June 10, 1980

      APPEARANCES OF COUNSEL

      Lewis R. Friedman, Richard M. Asche, Jack T. Litman, Herman Kaufman and Andrew Greene for appellant-respondent.

      Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order óf the Appellate Division insofar as appealed from should be reversed. The defendant is entitled to a new trial on the count charging her with murder in the second degree and criminal possession of a weapon in the second degree. She should also be resentenced for her conviction of possession of a weapon in the third degree. However the case must be remitted first to the Appellate Division as to the charge of possession in the second degree in view of that court’s prior reversal thereon on the law alone (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]; see, e.g., People v Cullen, 50 NY2d 168).

The court erred in permitting the prosecutor to introduce, over objection, testimony of a study of other suicides purporting to show, statistically, how far from his body a suicide victim holds "the gun”. The testimony was based on a study of the files of the Westchester County Medical Examiner’s office in which homicides investigated during a period of several years had been classified as suicides. The study showed that the agency had been remarkably consistent in classifying deaths as suicides when certain factors were present. There is nothing in the record, however, to indicate that the sampling was representative, that reliable criteria were employed or that the conclusions on which the statistics were based were in fact accurate. In short, the People failed to lay a proper foundation showing that the results of the study were reliable.

The court also permitted prosecution witnesses to testify to the results of test-firing the weapon at various objects at prescribed distances. The defendant claims that this was error because there was no showing that these objects possessed characteristics substantially similar to human skin or that they reflected powder burns in the same manner as human skin. The People claim that this proof was only introduced "to show the distribution at specific distances of the products of discharge of a particular gun and ammunition.” But there was extensive testimony that one of the test subjects was a living rabbit which had been shaved and human hair placed over the skin to simulate the conditions on the victim’s head. This obviously was not the kind of neutral test designed only to produce the limited results the People now contend. If at the new trial the People offer to show the effects of a gun shot from this weapon on animal tissue, they must first establish that there is a substantial similarity between the skin and tissue of the test subject and that of a human victim.

The defendant does not contend that these rulings require reversal of the conviction for criminal possession of a weapon in the third degree. She claims, however, that if the murder conviction is reversed, she should be resentenced on that weapons charge. We agree that under those circumstances, the sentence imposed on that charge, in conjunction with the sentence for the murder, should be vacated and the defendant resentenced on the conviction for possession of a weapon in the third degree.

On the cross appeal we agree with the People’s claim that the Appellate Division erred in dismissing the conviction for criminal possession of a weapon in the second degree (People v Perez, 45 NY2d 204). This charge, however, is factually related to the murder charge in this case, so that the reversal of the murder conviction should also require a new trial on the charge of criminal possession of a weapon in the second degree. But that charge must first be remitted to the Appellate Division pursuant to the statute (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]).

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

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


text:
    Douglas R. Barry, Appellant, v Oneonta Oil & Fuel Co., Inc., Respondent.
    Submitted June 2, 1980;
    decided June 10, 1980
   Motion for leave to appeal dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [c]).


text:
    Delta Sonic Car Wash Systems, Inc., Appellant, v Texaco, Inc., et al., Respondents.
    Submitted May 19, 1980;
    decided June 10, 1980
   Motion, insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed an order of Supreme Court, dated June 15, 1978, denied, with $20 costs and necessary reproduction disbursements; insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed an order of Supreme Court, dated June 25, 1979, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 40, pp 160-162).


text:
    In the Matter of Robert R. Kaufman, an Attorney, Appellant. Departmental Disciplinary Committee of the Association of the Bar of the City of New York, Respondent.
    Submitted May 27, 1980;
    decided June 10, 1980
   Motion to dismiss the appeal granted and the appeal dis-' missed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division. Motion to waive strict compliance with certain requirements concerning the record on appeal dismissed as academic.


text:
    Bernard P. Levy, Trust Account No. 2, Respondent, v Par 3 Golf Development Corporation of America et al., Defendants, and Royal Business Funds Corporation, Appellant.
    Decided June 10, 1980
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    David Messina, Appellant-Respondent, v Lufthansa German Airlines et al., Respondents-Appellants.
    Submitted May 19, 1980;
    decided June 10, 1980
   Motion to dismiss the appeals granted and the appeals dismissed, without costs, upon the ground that no appeal lies from the orders of the Supreme Court, Kings County. Motion for a stay, etc., dismissed for lack of power to entertain the motion since nothing is pending before this court. Motion to consolidate the appeals herein dismissed as academic.


text:
    In the Matter of Dorila Rodriguez et al., Appellants, v Noah Weinberg, as Commissioner of the Rockland County Department of Social Services, et al., Respondents.
    Submitted April 21, 1980;
    decided June 10, 1980
   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 (see Tucker v Toia, 64 AD2d 826, app dsmd 48 NY2d 755).


text:
    William G. Smith, as Father and Natural Guardian of Christian M. Smith, an Infant, et al., Plaintiffs, v Joseph F. Sapienza et al., Defendants and Third-Party Plaintiffs-Appellants. Heather Smith, an Infant, by William G. Smith, et al., Third-Party Defendants-Respondents.
    Submitted May 19, 1980;
    decided June 10, 1980
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the dismissal of the third-party complaint as to third-party defendant Heather Smith, granted. Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the dismissal of the third-party complaint as to third-party defendant William G. Smith, 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:
    Mitchell Swerdloff et al., Appellants, v Mobil Oil Corporation et al., Respondents. (And a Second Title.)
    Submitted May 12, 1980;
    decided June 10, 1980
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. Cross motion to vacate stay denied as unnecessary (CPLR 5519, subd [c]).


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    The People of the State of New York, Appellant, v Harry Shurn, Respondent.
    Submitted May 2, 1980;
    decided June 12, 1980
    APPEARANCES OF COUNSEL

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

      Daniel A. O’Connor and Timothy P. Coon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the memorandum at the Appellate Division. We do not read the inclusion of the word "voluntarily” in section 215.57 of the Penal Law to eliminate the grace period, present in the predecessor statutes, which reasonably limits the scope of this nonintent crime, (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 215.56, p 536). This construction makes certain when the crime is committed rather than leaving the determination to the fortuitous event of arrest.

Meyer, J.

(dissenting). I disagree for the reasons stated in the dissenting opinion of Mr. Justice M. Henry Martuscello at the Appellate Division (71 AD2d 610) to which I add only that the word "voluntarily” changed nothing in section 215.57 of the Penal Law if it does not mean that a defendant who fails to appear when required must voluntarily appear within 30 days and before arrest if he is to escape additional punishment. If he appears within 30 days because he is arrested on a bench warrant he has not met the requirement for voluntariness and may be prosecuted under section 215.57.

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur; Judge Meyer dissents and votes to reverse in a dissenting memorandum in which Judges Jasen and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Edward Bowen, Appellant.
    Argued May 2, 1980;
    decided June 12, 1980

      APPEARANCES OF COUNSEL

      David G. Secular and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant tenders two issues. With respect to the first — the propriety of the prosecutor’s cross-examination of defendant as to his failure at the time of his arrest to come forward with the exculpatory version of the episode to which he testified on trial — it appears that the issue is not preserved for our review inasmuch as no timely protest was registered.

As to the second — the propriety of the denial of defendant’s motion to preclude cross-examination with respect to the facts underlying a prior charge of reckless endangerment — there is nothing to warrant our disturbing the determination of the Appellate Division (cf. People v Mackey, 49 NY2d 274). Any error in the trial court’s failure to instruct the jury that this testimony should be considered for purposes of impeachment only was not preserved in view of the absence of any request for such instruction.

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

Order affirmed in a memorandum.


text:
    In the Matter of Genesee Hospital, Respondent, v State Division of Human Rights, on the Complaint of Sally Rappaport, Appellant.
    Argued May 1, 1980;
    decided June 12, 1980

      APPEARANCES OF COUNSEL

      Robert E. Ganz, Harry Starr, Ann Thacher Anderson and Joseph B. Robison for appellants.

      Susan S. Robfogel for respondent.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Judith T. Kramer and Stefan Presser of counsel), intervenor pro se.

   OPINION OF THE COURT

Order reversed, with costs, for the reasons stated in the dissenting opinion by Mr. Justice Richard D. Simons at the Appellate Division insofar as it relates to the finding of discrimination (68 AD2d 692, 701-704; see, also, Matter of Schweitzer Aircraft Corp. v State Div. of Human Rights, 48 NY2d 294); and the matter remitted to the Appellate Division, Fourth Department, with directions to remand to the State Division of Human Rights for consideration of the affirmative action directed in its order in light of present circumstances, as we do not pass on the affirmative relief directed.

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


text:
    The People of the State of New York, Respondent, v Archie Cavelli, Appellant.
    Argued May 2, 1980;
    decided June 12, 1980

      APPEARANCES OF COUNSEL

      Edward M. Chikofsky for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s inadvertent release from custody prior to service of his full sentence does not divest the courts of jurisdiction to order his reincarceration. A violation of CPL 430.10, which prohibits change, suspension or interruption of a legally imposed sentence once it has commenced, is remedied by computing the defendant’s remaining term on the basis of his original sentence and date of imprisonment and by granting him credit for both such time as he has already served and such time as is attributable to the authorities’ error in releasing him (see People ex rel. Reynolds v Martin, 3 NY2d 217, 223; People ex rel. Rainone v Murphy, 1 NY2d 367). While, in certain cases, a court may, as a matter of due process, lose jurisdiction over a defendant either because his sentence has been interrupted for a lengthy period or because he has otherwise been subjected to significant prejudice (cf. People ex rel. Harty v Fay, 10 NY2d 374), under the circumstances here it was not unreasonable as a matter of law to require service of the balance of the one-year sentence.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Norman Woodward, Jr., Appellant.
    Argued May 2, 1980;
    decided June 12, 1980

      APPEARANCES OF COUNSEL

      Michael J. Obus and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Shulamit Rosenblum, William C. Donnino and Anthony J. Girese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

That a defendant’s confession was oral while that of his codefendant was written is a factor to be considered in determining whether the Bruton v United States (391 US 123) rule or the People v McNeil (24 NY2d 550) exception (an exception most recently applied by us in People v Berzups [49 NY2d 417]) governs, but by itself is not enough to make the rule rather than the exception apply.

Here not only were defendant’s oral confession and Freeman’s written statement interlocking in all material respects, but also when Freeman’s statement was first read to him defendant stated: "Yes, that is what happened.” Even at a separate trial, therefore, the Freeman statement would have been admissible since the jury could find that he had adopted it as his own. They were, moreover, advised that Freeman’s statement was only "binding” upon him, and therefore, would not have used it with respect to defendant unless they found that he had in fact adopted it as his own.

The prosecutor’s statement in summation that the Freeman confession "implicated” defendant, while unfortunate in its choice of language, was, when considered in context, an attempt to inform the jury how the police learned of defendant’s participation rather than a covert attempt to instruct them on the law. As such, the error if any being isolated, and being substantially offset by the court’s instructions, the statement furnishes no basis for reversal (People v Safian, 46 NY2d 181, 190).

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

Order affirmed in a memorandum.


text:
    Irving Elias et al., Appellants, v Prudential Investment Corporation, S. A., et al., Respondents.
    Argued June 2, 1980;
    decided June 12, 1980
    APPEARANCES OF COUNSEL

      Abraham K. Weber for appellants.

      Israel G. Seeger for Prudential Investment Corporation, S. A., and others, respondents.

      Daniel Cohen and Morris Fellner for Harper United Corp. and another, respondents.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs. The question certified refers to "the order of the Supreme Court, as affirmed by this Court” whereas the order of the Appellate Division affirmed two separate orders of Special Term dated April 4, 1979 and May 7, 1979. Moreover, both Special Term orders denied discretionary remedies (vacatur of notices of deposition of plaintiffs because no showing warranting denial had been made, and the placing of the action on the Trial Calendar without prejudice to plaintiffs’ right to continue discovery). The question certified is not whether the orders constituted an abuse of discretion as a matter of law (see Barasch v Micucci, 49 NY2d 594) nor in view of the basis upon which the orders were made could it be. There is, therefore, no issue which we can review on certified question (Cohen and Karger, Powers of the New York Court of Appeals, pp 375-377).

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

Appeal dismissed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Harrison Humphrey, Respondent.
    Argued June 6, 1980;
    decided June 12, 1980
   Appeal dismissed upon the ground that the Appellate Division determination of reversal was not "on the law alone” (CPL 450.90, subd 2, par [a]; People v Johnson, 47 NY2d 124).