author: Per Curiam.

text:
    In the Matter of the City of New York, Appellant-Respondent, Relative to Acquiring Title to Real Property Bounded by Third Avenue and Other Streets, Duly Selected as a Site for the South Bronx Neighborhood Development Plan (Bronxchester-Second Taking) in the Borough of The Bronx. Brookfield Refrigeration Corf, et al., Respondents-Appellants; Sidney Zoloto, Respondent.
    Argued March 21, 1983;
    decided May 3, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gary Schuller and Leonard Olarsch of counsel), for appellant-respondent.
    The rate of interest provided by subdivision 2 of section 3-a of the General Municipal Law is not so unreasonably low or shocking to a sense of fairness as to render it unconstitutional. (Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 16 NY2d 497; Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, affd sub nom. A.F. & G. Realty Corp. v City of New York, 313 US 540; City of Buffalo v

      Clement Co., 28 NY2d 241; Matter of County of Nassau [Eveandra Enterprises], 42 NY2d 849, 434 US 804; Matter of Incorporated Vil. of Hempstead [Y. M. C. A. of Nassau & Suffolk Counties], 33 AD2d 1036; Matter of City of New York [Manhattan Civic Center Area], 57 Misc 2d 156, 32 AD2d 530, 27 NY2d 518; Matter of Incorporated Vil. of Hempstead, 59 Misc 2d 547; Matter of Town of Huntington, 31 AD2d 759.)

      Bernard L. Bermant and Carl J. Moskowitz for respondents-appellants.
    I. The trial court correctly held, as a matter of Federal constitutional law, it had the duty to determine the appropriate amount of proper, reasonable, judicially acceptable interest to be paid to claimants on their awards for the delay in their payment from the taking date to the date of payment. But then it erred in its conclusion that for the years 1972-1977 a 6% rate was to be used in the belief it was bound by earlier decisions of our State courts as precedents. In fact they were merely affirmed findings of failure of proof. It also erred, as a matter of law, when, on the opinion and factual evidence, it held 9% per annum a fair rate of interest to be paid on the awards between 1978 and the date of payment. (Chicago Burlington R. R. v Chicago, 166 US 226; Seaboard Air Line Ry. Co. v United States, 261 US 299; Matter of City of New York [Bronx Riv. Parkway], 259 App Div 552, 284 NY 48, affd sub nom. A.F. & G. Realty Corp. v City of New York, 313 US 540; City of Buffalo v Clement Co., 34 AD2d 24, 28 NY2d 241; Monongahela Nav. Co. v United States, 148 US 312; Jacobs v United States, 290 US 13; Phelps v United States, 274 US 341; Albrecht v United States, 329 US 599; United States v Creek Nation, 295 US 103; Miller v United States, 620 F2d 812.) II. The trial court’s findings and conclusions of law and the affirmance of the court below were legally erroneous and predicated on erroneous principles of law and valuation. (City of Buffalo v Clement Co., 28 NY2d 241; New York Cent. R. R. Co. v Lefkowitz, 23 NY2d 1; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 16 NY2d 497; United States v 429.59 Acres of Land, 612 F2d 459; Elterman v Hyman, 192 NY 113; Stokes v Stokes, 198 NY 301; Matter of City of New York [A & W Realty Corp.], 1 NY2d 428;
      People ex rel. MacCracken v Miller, 291 NY 55; Matter of City of New York [Newtown Creek], 284 NY 493; Matter of Seagram & Sons v Tax Comm. of City of N. Y., 14 NY2d 314.)

      Robert Abrams, Attorney General (Peter H. Schiff and Henderson G. Riggs of counsel),
    in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [b]). Claimants have failed to demonstrate that the 6% per annum interest rate provided by subdivision 2 of section 3-a of the General Municipal Law is inadequate so that the courts below erred in holding that the 6% per annum rate prescribed by the statute was “unfair and unconstitutional”. (Matter of City of New York [Bronx Riv. Parkway], 259 App Div 552, 248 NY 48, affd sub nom. A. F. & G. Realty Corp. v City of New York, 313 US 540; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 22 Misc 2d 609, 15 AD2d 153, 16 NY2d 497; Matter of City of New York [Fifth Ave. Coach Lines], 18 NY2d 212; Matter of Port Auth. Trans-Hudson Corp. [Hudson Rapid Tubes Corp.], 20 NY2d 457; Matter of City of New York [Manhattan Civic Center Area], 32 AD2d 530, 27 NY2d 518; City of Buffalo v Clement Co., 28 NY2d 241; Matter of City of New York [Wembley Realty Corp.], 32 AD2d 526, 27 NY2d 518; Matter of County of Nassau [Eveandra Enterprises], 51 AD2d 722, 42 NY2d 849, 434 US 804; Matter of City of New York [Washington Hgts.-Highbridge Park Urban Renewal Area], 82 Misc 2d 557, 56 AD2d 513.)
   OPINION OF THE COURT

Per Curiam.

In June, 1972 the City of New York condemned 51 parcels of private property for use in Stage II of the Bronxchester Urban Renewal Project. Claimants, owners of four of the affected parcels, filed fixture claims between April, 1974 and January, 1975. Following a lengthy trial, Special Term rendered a tentative compensation award on August 7, 1980 with interest at the statutory rate of 6% computed from the date of taking to the date of payment (General Municipal Law, § 3-a, subd 2). Claimants objected to the proposed award, contending, in part, that interest of 6% when added to the award did not meet the constitutional requirement of “just compensation” (see US Const, 5th Arndt; NY Const, art I, § 7). On April 2,1981 a separate hearing was held on the issue of interest at which claimant introduced expert testimony that higher rates were paid on public securities, certificates of deposit and bankers’ acceptances during the years at issue (1972-1981). After unsuccessfully attempting to exclude this evidence, the city offered contrary expert testimony in rebuttal.

Special Term determined that claimants were entitled to interest on the respective awards at the rate of 9% from January 1, 1978 to the date of payment and at the rate of 6% from June 23, 1972 to December 31, 1977. The court based its decision upon the economic reports before it, principally those pertaining to medium term public securities since they were found to be the most stable indicators of market interest rates. It found that while interest rates fluctuated around the statutorily prescribed 6% rate during the 1972-1977 period, interest rates consistently rose far above 6% during the period 1978-1981. For that latter period the 6% statutory rate was thereby displaced and Special Term applied a median interest rate of 9% in order to satisfy the constitutional requirement of just compensation. The Appellate Division affirmed, without opinion.

Both the city and the claimants appeal. The city interprets Special Term’s decision as a ruling that subdivision 2 of section 3-a of the General Municipal Law is unconstitutional. It claims that the 6% interest rate satisfies the applicable constitutional standards for the entire period under consideration. Claimants, on the other hand, contend that the expert testimony concerning market interest rates offered at the hearing warrant higher applicable rates than those selected by Special Term for the years 1972-1977 and 1978 to the date of payment.

It is well established that in condemnation proceedings the constitutional requirement of just compensation necessarily includes a sum in addition to the bare value of the property to account for the delay between the taking and the ultimate payment to the property owner (Jacobs v United States, 290 US 13; City of Buffalo v Clement Co., 28 NY2d 241, 265-266; Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, 54-55, affd sub nom. A.F. & G. Realty Corp. v City of New York, 313 US 540; see US Const, 5th Amdt; NY Const, art I, § 7). The property owner is entitled to receive a fair return for the deprivation of the use of the property or the money equivalent of that use (see Matter of County of Nassau [Eveandra Enterprises], 42 NY2d 849, 850, app dsmd 434 US 804; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 178-182, affd 16 NY2d 497). Moreover, because the ascertainment of just compensation is a judicial question, the amount of interest to be paid as an additional component of such compensation is also a matter for judicial determination (Jacobs v United States, 290 US 13, supra; City of Buffalo v Clement Co., 28 NY2d 241, supra). The Legislature may fix a fair or prima facie measure of the proper interest rate in the first instance, and it has done so in section 3-a of the General Municipal Law, but while that legislatively fixed rate is presumptively reasonable, it is not determinative of the issue. The claimant may introduce relevant evidence of prevailing market rates to rebut the statutory presumption of reasonableness and demonstrate that some higher rate must be paid to afford him just compensation.

We have frequently rejected challenges to the applicable statutory rate of interest in the past because claimants failed to demonstrate that the rate was so “unreasonably low” that it deprived them of just compensation (see Matter of County of Nassau [Eveandra Enterprises], 42 NY2d 849, 850, app dsmd 434 US 804, supra; City of Buffalo v Clement Co., 28 NY2d 241, 265-266, supra; Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 AD2d 153, 178-182, affd 16 NY2d 497, supra; Matter of City of New York [Bronx Riv. Parkway], 284 NY 48, affd 313 US 540, supra; Matter of City of New York [Washington Hgts.-Highbridge Park Urban Renewal Area], 82 Misc 2d 557, affd 56 AD2d 513, mot for lv to app den 41 NY2d 806; but cf. Matter of City of New York [Manhattan Civic Center Area], 57 Misc 2d 156, affd 32 AD2d 530, affd 27 NY2d 518). In those cases, there were only slight variations between the statutory rate and the prevailing interest rates for public and private securities. A judicially adequate interest rate cannot be tied directly to such changeable and sensitive market indicators (see Matter of County of Nassau [Eveandra Enterprises], supra).

This case arises in the same procedural posture as Matter of City of New York (Manhattan Civic Center Area) (supra) and similarly presents us with affirmed findings of fact. These findings indicate that the 6% statutory rate of interest was inadequate to afford just compensation during the years 1978-1981. At that time, average interest rates on stable investments, such as medium term public securities, ranged between 8.3% in 1978 and 12.5% in 1981. Because this evidence supports the trial court’s affirmed findings concerning the inadequacy of the statutory rate they are beyond review here (see City of Buffalo v Clement Co., 28 NY2d, at p 266, citing Cohen and Karger, Powers of the New York Court of Appeals, pp 476-480). Similarly, the evidence supports the determination that claimant had failed to rebut the reasonableness of the statutory rate for the years 1972-1977, when interest rates fluctuated around 6%. For that period, claimants failed to prove that the statutory rate was so “unreasonably low” as to deprive them of just compensation (see Matter of County of Nassau [Eveandra Enterprises), 42 NY2d 849, supra).

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

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

Order affirmed, without costs.

      . Subdivision 2 of section 3-a of the General Municipal Law, in part, provides: “2. The rate of interest to be paid upon any judgment or accrued claim against the municipal corporation arising out of condemnation proceedings or action to recover damages for wrongful death shall not exceed six per centum per annum.” The statute was recently amended (L 1982, ch 681, § 1) to increase the interest rate generally to 9% but the amendment did not alter the 6% rate application to condemnation proceedings and wrongful death actions.

      . Contrary to the assertions of the city and the State, this case does not involve the traditional presumption of constitutionality accorded legislative enactments (see Wiggins v Town of Somers, 4 NY2d 215, 218). This is so because the determination of just compensation is a judicial, not a legislative, function (Seaboard Air Line Ry. Co. v United States, 261 US 299, 306). Thus, the statutory rate is entitled to a presumption of reasonableness, not a presumption of constitutionality.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    In the Matter of the Estate of Charlotte L. Cord, Deceased. Don O. Cord, Appellant; Bank of New York et al., Respondents.
    Argued March 24, 1983;
    decided May 5, 1983

      POINTS OF COUNSEL

      Edgar Hills for appellant.
    I. The trust agreement, made in 1938, could not be superseded by the provisions of the will, since the latter document did not comply with the statutory requisites provided for by EPTL 7-1.9. (Matter of Dodge, 25 NY2d 273; Smith v Title Guar. & Trust Co., 287 NY 500; Matter of Berry, 21 Misc 2d 484; Chase Nat. Bank

      of City of N. Y. v Tomagno, 172 Misc 63; Matter of McGill, 229 NY 405; Matter of Coffed, 46 NY2d 514.) II. The provisions of article 2 of the will do not specifically relieve the trust of its mandated obligation. As a consequence, the same does not represent a clear and unambiguous direction precluding the prescribed apportionment of the tax burden. (Matter of Mills, 189 Misc 136, 272 App Div 229, 297 NY 1012.) III. In view of the fact that it has been stipulated that the drastsman of the will had no knowledge of the prior trust agreement, the court’s conclusion that the testatrix had intentionally reallocated the tax burden is erroneous. (Matter of Fabbri, 2 NY2d 236.)

      John J. O’Grady, III, Michael Ritner Weaver and Kevin W. Goering for Bank of New York, respondent.
    I. Since the decedent directed in her will that all estate taxes be paid from her testamentary estate, the New York apportionment statute does not require the payment of any portion of such taxes from the 1938 trust. (Matter of Villalonga, 6 NY2d 477; Matter of Stoffel, 104 Misc 2d 154; Matter of Harbord, 197 Misc 760, 281 App Div 850, 305 NY 930; Matter of Annesley, 97 Misc 2d 1047; Matter of Devlin, 46 Misc 2d 399; Matter of Osborn, 8 Misc 2d 859; Matter of Gihon, 169 NY 443; Matter of Hamilton, 69 Misc 2d 246; Matter of von Echt, 39 Misc 2d 373.) II. The New York statute dealing with the amendment of irrevocable trusts is not applicable because the decedent by her will merely relieved the 1938 trust of an obligation to pay estate taxes. (Matter of Harbord, 197 Misc 760, 281 App Div 850, 305 NY 930; Matter of Spencer, 95 Misc 2d 512; O’Hagan v Kracke, 253 App Div 632; Rosner v Caplow, 105 Misc 2d 592; Stover v Garber, 25 AD2d 488; Matter of Appel, 189 Misc 417; Matter of Dodge, 25 NY2d 273; Matter of Reilly, 21 Misc 2d 597; People v Berlin, 65 Misc 2d 245; Matter of Coffed, 46 NY2d 514.) III. Uncertainty and ambiguity in the treatment of all testamentary tax apportionment clauses will result should the decision below be reversed.
   OPINION OF THE COURT

Fuchsberg, J.

In this will construction proceeding, the essential issue is whether a provision of decedent Charlotte L. Cord’s irrevocable inter vivos trust, which directed that the trust assume payment of any estate taxes assessed because of its existence, was superseded, without more, by a provision of her will, executed some 40 years later, and directing, in turn, that all death taxes of any nature be paid out of her general estate as an expense of its administration. A subsidiary question is whether the obligation imposed by the trust indenture could be changed other than in the manner expressly provided by EPTL 7-1.9, under which formal consent of all parties “beneficially interested” in a trust is a prerequisite to its revocation or amendment.

The trust provision, in its article third, states: “The Trustees are hereby directed and empowered to pay to the executor or the administrator of the Grantor’s estate any estate taxes which may be assessed against such executor or administrator because of the existence at the time of the Grantor’s death of the trusts hereby established.”

The clause of the will, in its article 2, states: “I direct that all estate, inheritance, transfer, legacy, succession and other death taxes of any nature payable by reason of my death and imposed upon or with respect to property passing under this Will, or property not passing under this Will, including interest or penalties, if any, shall be paid out of my general estate as an expense of administration, without allocation or proration to any legatee or devisee under this Will or any person owning or receiving property not passing under this Will.”

Petitioner, who is decedent’s surviving husband and executor, commenced this proceeding in Surrogate’s Court, Suffolk County, after rejection of his demand that an allocable portion of the estate taxes be paid from the ultimate corpus of the trust, whose beneficiaries are decedent’s children by a prior marriage. After exchanging pleadings, the parties consented that an evidentiary hearing be waived. Substantively, the result of the submission was to rest the determination of the Surrogate on the will, the trust indenture and, subject to the issue of its admissibility, a stipulation that, had the draftsman of the will been called as a witness, he simply would have testified that he was unaware of the existence of the trust at the time he drew the will and, perforce, “did not in any manner whatever have in mind” the effect of one instrument on the other.

In deciding the issue so raised, the Surrogate was persuaded by the fact that the will did not “specifically relieve the inter vivos trust from its mandated obligation”. To bolster this holding, he further reasoned, in the alternative, that, even if article 2 of the will, though lacking express and explicit direction for apportionment, should be construed to so intend by implication, nonapportionment was still required because the will, however appropriate as a testamentary document, did not comly with EPTL 7-1.9. As to the stipulation, after ruling it admissible, the court nevertheless found it without “probative value”. Accordingly, it decreed that the trust pay its proportionate share of the death taxes.

But, for its part, on review, the Appellate Division reversed, on the law. Emphasizing the breadth of the language of article 2 of the will, it construed it to impose the “unqualified obligation” (89 AD2d, p 909) that death taxes on all property passing by reason of the decedent’s death be paid by her estate. It specifically held that the draftsman’s unawareness of the trust provision did not vitiate this interpretation. And, in taking these stances, it did not discuss the posture of EPTL 7-1.9.

Petitioner now appeals as of right (CPLR 5601, subd [a], par [ii]). In his quest for reinstatement of the Surrogate’s decree, he relies on the rationale of nisi prius, including its reliance on EPTL 7-1.9, as well as the stipulation to which that court gave no weight. For the reasons which follow, we uphold the result reached at the Appellate Division.

Our analysis may well begin with the obvious, i.e., that, in a will construction proceeding, the search is for the decedent’s intent (Matter of Thall, 18 NY2d 186, 192-193; Matter of Fabbri, 2 NY2d 236, 239-240) and not for that of the draftsman (e.g., Matter of Aldrich, 259 App Div 162, 164; Matter of Kindermann, 48 Misc 2d 607, 610, affd 27 AD2d 856, revd on other grounds 21 NY2d 790; Matter of von Echt, 39 Misc 2d 373, 376 [all involving tax apportionment clauses]). For, put in the phrase employed in the stipulation in the present case, relevant in the end was not what her scrivener, but what the testatrix had “in mind”. This is especially true here, where it is agreed that the two never as much as discussed the inter vivos trust. Absent other proof which might lend significance to this silence, it therefore plays no role in this proceeding.

Indeed, since ascertainment and implementation of testamentary intent is, consistent with applicable law, to be gleaned, if possible, from within the four corners of the will itself (Matter of Jones, 38 NY2d 189, 193), as a rule extrinsic evidence will not be admissible to vary or contradict the unambiguous expression of the decedent (Matter of Ragone, 58 NY2d 864, revg 87 AD2d 457, for reasons stated by Surrogate Midonick at 116 Misc 2d 993, 997; Matter of Villalonga, 6 NY2d 477, 482). In this perspective, contrary to the premise espoused by the petitioner and adopted by the Surrogate, the failure to mention the trust in article 2 of the will is of no moment. Its all-encompassing direction is plain in its prescription that death taxes payable by the estate not only expressly include those payable on “property not passing under this Will”, but also indicates that it is to do so “without allocation or proration to * * * any person owning or receiving [such] property”. It is no surprise then that this testamentary formulation has been the one most commonly recommended to accomplish the exoneration from tax apportionment of all property passing on death, whether under the will or otherwise.

This said, it is still necessary to confront the seeming conflict between the unambiguous will provision and the trust’s own clear direction that death taxes arising out of its existence be charged to its corpus. Ready resolution, however, is found in EPTL 2-1.8 (formerly Decedent Estate Law, § 124), which, while it has long compelled that estate taxes “be equitably apportioned among the persons interested in the * * * estate”, has always carried an exception “where a testator otherwise directs in his will” (see, e.g., Matter of Wise, 20 AD2d 55, affd 15 NY2d 591). In short, while acknowledging the policy favoring apportionment, the statute gives obeisance to the overriding wishes of the testator.

Thus, the decedent here, at the time she created the trust, must be assumed to have understood that she retained the right subsequently to shift the burden of the tax by an appropriate clause in her will. For whatever unstated familial, financial, fiscal or other considerations may have motivated her four decades later, this right the grantor-testatrix exercised. Therefore, the will she then executed, speaking, as it does, as of the time of the decedent’s death, takes precedence, insofar as it concerns apportionment or nonapportionment of the taxes then due, over the contrary provision of her earlier, nontestamentary disposition (Matter of Harbord, 197 Misc 760, affd 281 App Div 850, mot for lv to app den 305 NY 930; Matter of Annesley, 97 Misc 2d 1047, 1050; Will Provision — Estate or Inheritance Tax, Ann., 69 ALR3d 122, 215, § 4[i]).

Finally, we hold that EPTL 7-1.9 did not render the will’s pre-emption amendment of the trust’s apportionment scheme nugatory for noncompliance with the requirement for written consent of those beneficially interested. The history behind EPTL 7-1.9 and its predecessor, section 23 of the Personal Property Law, informs us that the design was to protect trust beneficiaries against unauthorized or unwarranted invasion (O’Hagan v Kracke, 165 Misc 4, 13, affd 253 App Div 632, mot for lv to app den 278 NY 741; Rosner v Caplow, 105 Misc 2d 592, 600). Suffice it then to say that, though an irrevocable trust ordinarily cannot be modified except by consent of all those who may be adversely affected thereby, that did not prevent the settlortestatrix here from undertaking to pay trust tax obligations out of a different fund. The product of this action could only have added to and not cut down on the benefits available to the beneficiaries. In no way did it invade the trust (cf. Matter of Gilbert, 39 NY2d 663, 668-669). Consequently, it would be unreasonable to say that consent was required under these circumstances.

In fine, the order of the Appellate Division should be affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs.

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

Order affirmed, etc.

      . EPTL 7-1.9, as relevant here, reads as follows: “(a) Upon the written consent, acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property, of all the persons beneficially interested in a trust of property, heretofore or hereafter created, the creator of such trust may revoke or amend the whole or any part thereof by an instrument in writing acknowledged or proved in like manner, and thereupon the estate of the trustee ceases with respect to any part of such trust property, the disposition of which has been revoked.”

      . On the date of decedent’s death, the trust principal was valued at $412,684.68 and the testamentary estate at approximately $543,000. By reason of the decedent’s retained life interest in the trust’s income, its corpus was includable in the decedent’s gross estate for tax purposes (Internal Revenue Code [of 1954] [US Code, tit 26, § 2036]). At stake in this litigation, according to both parties, is a tax obligation in the neighborhood of $100,000.

      . (See, for example, 2 Fingar, Bookstaver & McQuaid, New York Wills and Trusts, 8 19:08: F01, F02, p 2236; Klipstein, Drafting New York Wills [2d ed], 8 4.18, pp 117-118; 3 Murphy’s Will Clauses, Form 17:1, p 678.12 [2]; New York Consolidated Laws Service, Annotated Statutes with Forms, Book 13, EPTL 2-1.8, p 85, form 2, all containing clauses parallel to article 2 of the decedent’s will. Contrast 2 Fingar, Bookstaver & McQuaid, § 19:08: F05, p 2237; New York Consolidated Laws Service, p 85, form 3; 4 NY Forms, Legal & Business, § 24:293, p 179, for recommended clauses which exempt only probate assets from apportionment.)

      . Section 23 of the Personal Property Law, which did not apply to real property and did not require that consents be acknowledged, was otherwise substantially similar to EPTL 7-1.9. Before the adoption of the latter, section 118 of the Real Property Law governed trusts of realty. Both were combined in EPTL 7-1.9.

      . This protective measure, securing the right of cestuis que trustent to grant or withhold consent, was the aftermath of legislative indulgence of settlors of trusts, who, having foundered in the 1907 economic depression, sought to fuel a financial comeback by access to assets they had locked into trusts in balmier times (4 Powell, Real Property, par 566, p 428.44; see, also, Mariash, Revocation of Inter Vivos Trusts in New York, 16 Bklyn L Rev 41; Scott, Revoking a Trust, 65 Harv L Rev 617).


author: Meyer, J.

text:
    Allstate Insurance Company, Respondent, v Dennis R. Furman et al., Appellants. (Action No. 1.) Daniel J. Furman, an Infant, by Vincent J. Gentile, his Guardian ad Litem, Appellant, v Allstate Insurance Company, Respondent. (Action No. 2.)
    Argued October 7, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      Benjamin J. Fried for appellants.

      Jon Charles Dupee and Gregory G. Hoover, Sr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Moses M. Weinstein at the Appellate Division (84 AD2d 29).

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

Meyer, J.

(dissenting). What the majority by affirming

on the Appellate Division decision ignores, as did the Appellate Division, is that the injured claimant is Daniel Furman; it is Daniel, by his guardian, who sues; it is Daniel who has suffered physical injury for which he is entitled under our law to recover from his parents; it is Daniel as “claimant” who is protected by section 167 (subd 1, par [d]) of the Insurance Law from the invalidation of his claim if it be shown that notice “was given as soon as was reasonably possible” for him to give notice; it is Daniel as “claimant” who was, or whose appointed guardian was, entitled under subdivision 8 of section 167 of the Insurance Law to written notice of the carrier’s disclaimer of liability. The result of doing so is, moreover, wholly inconsistent with at least three previously unquestioned rules: (1) that an injured infant’s parents are entitled to recover only for loss of services during unemancipated minority and for past but not future medical expenses (Cuming v Brooklyn City R. R. Co., 109 NY 95), any recovery for the infant’s injury or for future medical expenses being “items of damage which personally belonged to the infant” and not to the parent (id.; Clarke v Eighth Ave. R. R. Co., 238 NY 246, 250; accord Cuming v Brooklyn City R. R. Co., supra; Benitez v Trumble, 57 AD2d 716; see 1 NY PJI2d 678; Ann., 32 ALR2d 1060, 1076); (2) that money recovered in an infant’s action compensates him or her for physical disability and suffering and may not be used to support other members of the family or the infant, even if the parent is on welfare, because the infant’s assets may not be used for the obligation of the parent (e.g., Matter of Smith v Lavine, 78 Misc 2d 776; Galante v Doe, 68 Misc 2d 295; Matter of Taff, 61 Misc 2d 602; Matter of Woods v Mason, 32 Misc 2d 745; Conigliaro v Rosa, 24 Misc 2d 15; De Marco v Seaman, 157 Misc 390); (3) that the Department of Social Services can assert a lien on the personal injury recovery by an infant for public assistance furnished the infant only to the extent that the recovery represents past medical expenses, but otherwise cannot reach money recovered by an infant for personal injury (Baker v Sterling, 39 NY2d 397, 406; see Ann., 80 ALR3d 772). The apparent basis for the present holding is the absence from section 167 of the Insurance Law of any toll for infancy, but the simple answer is that we deal not with a Statute of Limitations the provisions of which can be tolled only as the Legislature has specifically directed, but with a legislatively mandated insurance policy provision the purpose of which is to ameliorate the notice provisions of the policy by limiting the carrier’s right to defend on notice grounds so as to exclude from that right any situation in which a claimant (whether infant or adult) gave notice “as soon as was reasonably possible.” Respectfully, therefore, I dissent.

I

The relevant facts are undisputed. On February 15, 1971, Daniel Furman, then four and one-half years old, was injured while he was playing in the basement of the family residence when an anvil fell from the tree stump on which his parents had placed it and injured his hand. Daniel’s parents were covered by a homeowner’s policy issued by Allstate Insurance Company (Allstate). Although Daniel’s mother testified that she had called Allstate and been told that the claim was not covered, Daniel’s parents concede that they never provided Allstate with written notice of the accident. Six years after the injury, on February 14,1977, Vincent Gentile was appointed Daniel’s guardian ad litem and, on March 23, 1977, commenced a personal injury action against Daniel’s parents to recover for Daniel’s injuries. A copy of the complaint served upon them was forwarded by Daniel’s parents to Allstate on April 18,1977. Allstate responded with a letter dated June 9,1977, addressed solely to the parents, disclaiming coverage because of “Late Notice and for other reasons” as stipulated in the policy. Neither Daniel nor his guardian or attorneys were sent written notice of the disclaimer.

Declaratory judgment actions brought by the guardian on Daniel’s behalf and by Allstate having been consolidated, the Supreme Court held that Daniel’s parents had failed to give Allstate timely written notice of the accident as required by the policy, but concluded that Daniel, the injured party, had independently notified Allstate in a timely fashion. It found the disclaimer letter timely but ineffective because the ground specified (late notice) was not available and the content of the disclaimer letter was insufficient to raise any other ground for disclaiming. Accordingly, judgment was entered requiring Allstate to defend and indemnify the Furmans.

The Appellate Division reversed. It held that Allstate was not required to defend or indemnify the Furmans because, as a matter of law, Daniel’s infancy did not excuse their failure to give timely notice. Concerning the disclaimer, the Appellate Division stated without further amplification of the circumstances referred to that “under the circumstances of this case, the disclaimer of liability issued by Allstate was sufficient.” (84 AD2d, at p 34.) This reasoning, now adopted by the majority of this court, is erroneous, both as to notice of disclaimer by the carrier and as to notice of the occurrence to the carrier. Because, absent an effective disclaimer, the carrier cannot question the timeliness of notice to it, disclaimer will be considered first.

II

Subdivision 8 of section 167 of the Insurance Law provides: “If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant” (emphasis supplied). It is not disputed that written notice of disclaimer was not given to Daniel or his guardian. As to disclaimer, therefore, this case is governed by General Acc. Ins. Group v Cirucci (46 NY2d 862, 863-864) in which we noted that “an injured third party may seek recovery from an insured’s carrier despite the failure of the insured to provide timely notice of the accident (Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, affd 4 NY2d 1028). Although, under the facts of this case a disclaimer might have been premised on the late notice furnished by the third parties themselves to the insurer, since this ground was not raised in the letter of disclaimer, it may not be asserted now.” No disclaimer having been furnished to the injured person in the present case and the subdivision being worded in the conjunctive, it is simply irrelevant to determination of this case that a disclaimer was sent to Daniel’s parents, the insured persons, or that they may have informed Daniel, or his guardian or the attorneys representing the guardian, of the disclaimer. The “insurer being highly experienced and sophisticated in such matters,” it is not unduly burdensome to hold it to the express requirements of the statute (General Acc. Ins. Group v Cirucci, loc. cit., supra; Metropolitan Prop. & Liab. Ins. Co. v Horner, 79 AD2d 869, app withdrawn 53 NY2d 940; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028).

The disclaimer notice to Daniel’s parents, even if timely as to them, was wholly ineffective as against Daniel and his guardian. The judgment entered by Special Term should, therefore, be reinstated.

III

Even if the absence of a proper disclaimer be disregarded, there should be a reversal, although in that event, the Appellate Division’s order of reversal having been “on the law,” the matter would have to be remitted to that court for consideration of the factual question whether Daniel’s notice to the carrier was given as soon as reasonably possible (CPLR 5612, subd [a]; 5712, subd [c], par 1).

The fallacy in the Appellate Division’s approach to the notice of occurrence issue is that the questions framed by it — whether “the notice requirement in the insurance policy is tolled on account of infancy” (84 AD2d, at p 29) and whether Daniel’s action is not “in reality” a suit by his parents against the carrier — are, as to the first irrelevant, and as to the second clearly erroneous.

The statute in question was not proposed to nor was it passed by the Legislature as a statute of repose. Quite the opposite, that body acted to ameliorate the effects of the contract of adhesion with which a purchaser of insurance was presented, by requiring that, every policy delivered or issued for delivery in this State contain certain specified provisions and be enforced as though it contained such provisions even if it did not (Insurance Law, § 143).

One such provision is section 167 (subd 1, par [d]), which mandates inclusion of “[a] provision that failure to give

any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured or by any other claimant thereunder if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.” The legislative history of the provision is instructive for, as originally enacted by chapter 524 of the Laws of 1917, the provision, then known as section 109, dealt only with the situation now covered by paragraph (a) of subdivision 1, that of the bankruptcy or insolvency of the insured, which, without the enactment of section 109, would, the insurance contract being one of indemnity, have left a successful claimant against the insured without means of obtaining satisfaction of his judgment from the insurer. In Jackson v Citizens Cas. Co. of N. Y. (277 NY 385, 390) we noted the injustice of the prior common law and “the mischief the Legislature was seeking to cure” and concluded “that the statute was drawn for the protection of injured plaintiffs.” The new provision, being in derogation of the common law, was, however, held to authorize an action only by the injured person and not by an assignee (id.), and not to create an obligation in favor of the injured claimant without reference to any breach of a policy condition by the insured (Rushing v Commercial Cas. Ins. Co., 251 NY 302; Coleman v New Amsterdam Cas. Co., 247 NY 271).

As is detailed at length in the opinion in Bazar v Great Amer. Ind. Co. (306 NY 481, 487-488), the concept of Rushing and Coleman that the injured person, except as to insolvency of the insured, stood in the shoes of the insured and was chargeable with any breach of condition by the insured, was carefully scrutinized by the Insurance Department and a legislative commission. Out of that study came the reviser’s proposal that a method be set up whereby the injured person could independently satisfy the notice requirements. That proposal, which was enacted, over opposition of the insurance industry which lobbied against “any mention of notice by a claimant” (Bazar, supra, at p 488 [emphasis in original]), as part of the extensive revision and recodification of the Insurance Law made by chapter 882 of the Laws of 1939, is paragraph (d) of subdivision 1, quoted above. Thus, as stated in Lauritano v American Fid. Fire Ins. Co. (3 AD2d 564, 568, affd 4 NY2d 1028, supra), “It was precisely because accident victims could be deprived of all possibilities of recovery through the irresponsibility, obduracy or neglect of the insured” that paragraph (d) was enacted.

That the Legislature deliberately, carefully and clearly divorced the injured person’s rights against the insurer from those of the insured is, thus, beyond cavil. Indeed, we have so recognized both by our affirmance of Lauritano’s holding that “The statute having granted the injured person an independent right to give notice and to recover thereafter, he is not to be charged vicariously with the insured’s delay” (3 AD2d, at p 568) and by our own holding in General Acc. Ins. Group v Cirucci (46 NY2d 862, 863-864, supra) that “an injured third party may seek recovery from an insured’s carrier despite the failure of the insured to provide timely notice of the accident.”

Despite the separation, clearly etched by the Legislature and firmly indorsed by us, between the rights of a claimant and those of a policyholder against the insurer, the majority now carves an exception into the statutory scheme for the situation in which the claimant is the child of the insured. The conception that the parents are “in reality” the claimants is refuted by the cases set forth in the first paragraph of this opinion. What the parents, as parents, could have recovered from themselves as tort-feasors had they not failed to give the written notice required of them under the statute and the policy, if not otherwise barred on principles of comparative negligence, is wholly separate and distinguishable from what the guardian on behalf of the infant could recover from the parents and their insurer. The reality then is that the exception now declared is predicated upon the fear that without it the insurer may be seriously prejudiced if not possibly defrauded. But any prejudice that may arise from loss of “the carrier’s right to an early investigation must, under the mandate of section 167 of the Insurance Law, yield to the paramount right of the accident victim to protection, no matter how dilatory the insured may have been” (Lauritano, supra, at p 571). Nor, in view of the jury’s ability to distinguish between valid and fraudulent claims, is the possibility of fraudulent law suits arising out of the parent-child relationship sufficient to overcome the “definite and vital interest of society in protecting people from losses resulting from accidents” (Gelbman v Gelbman, 23 NY2d 434, 438-439). Not without significance in this respect is the absence from section 167 of any provision as to injury to a child similar to that contained in subdivision 3 of that section with respect to injury to a spouse, for the existence of subdivision 3 establishes that when the Legislature believed the insurer in need of the protection through exclusion of a risk from the policy without increased premium for the increased risk, it knew how to provide for it. It is, as we have but recently emphasized in Pajak v Pajak (56 NY2d 394, 397; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 3) for the Legislature, not this court, to fashion exceptions to an otherwise clear statute in order to alleviate what may appear to be potentially harsh results. The wisdom of that rule is illustrated by the exception now judicially declared, which, though declared in the instant case because “in reality” the action is by the parent, can be as readily applied to any injured person, adult or infant, related in a sufficiently close degree to the insured to be the object of covinous activity by the latter.

If as I believe is demonstrated by the foregoing discussion the Appellate Division’s “in reality” rationale is fallacious, its reasoning concerning the absence of a tolling provision from the statute falls with it. This is because, eschewing the broader “tolling” analysis of Insurance Co. of Greater N. Y. v 156 Hamilton Realty Corp. (72 AD2d 403) that infancy can never, in and of itself, provide an excuse for delay by a claimant in giving notice to the insurer, the Appellate Division in the instant case held that though infancy could under subdivision (d) excuse a claimant’s delay, it did not because this suit is “in reality” by the parents against the insurer, a position already shown to be erroneous. In my view, however, the tolling analysis of 156 Hamilton (a 3 to 2 decision of the Appellate Division, 1st Dept) does not sustain the result in the instant case either. Its rationale is that because the 1976 Legislature chose, in permitting extension of an infant’s time to file a notice of claim against a municipality during the entire minority of the child, to subject that extension to the discretion of a court under the criteria set forth in subdivision 5 of section 50-e of the General Municipal Law, and the 1958 Legislature in enacting section 608 of the Insurance Law, which in subdivision (c) specifies infancy as one of the disabilities which can excuse the filing of an affidavit under the Motor Vehicle Accident Indemnity Law and uses “reasonably possible” language similar to that contained in section 167 (subd 1, par [d]), the 1939 Legislature must be deemed, by reason of its failure in the latter paragraph to refer specifically to “infancy” not to have intended infancy to be considered in determining whether the filing of notice with the insurer was reasonably possible. So to use the acts of a later Legislature as a basis for interpreting the intention of the earlier Legislature, while permissible when the issue is the construction of two parallel earlier statutes, one amended and the other not (Rozler v Franger, 61 AD2d 46, affd on opn below 46 NY2d 760; see Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 39 NY2d 1029, affg on opn at 79 Misc 2d 438; McKinney’s Cons Laws of NY, Book 1, Statutes, § 223), clearly should not be resorted to in the circumstances of the present case for the 1939 “lawmakers cannot be charged with a knowledge of future laws” (McKinney’s, Statutes, loc. cit.).

Indeed, quite the contrary conclusion should here be drawn. The 1939 Legislature enacted in paragraph (d) what this court has characterized as an “ameliorating provision [which] sanctions late filing in those cases in which valid excuses are proffered” (Matter of Lloyd [MVAIC], 23 NY2d 478, 482). It did so by giving to an injured claimant a right wholly independent of the. insured. It must be presumed to have known that some of the claimants whose rights it thus enhanced would be infants or mentally or physically incapacitated, yet it left determination of the validity of a claim by one under such a disability to the factual determination whether it “be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.” The fact that in 1939 an unemancipated infant could not sue his or her parent for a nonwillful tort (Badigian v Badigian, 9 NY2d 472) affords no contrary inference for, of course, not all injured infant claimants would be claiming for an injury by a parent-insured. To the contrary, for the reason already advanced above with respect to subdivision 3 of section 167, the failure of the Legislature to amend paragraph (d) of subdivision 1, after reversal of the Badigan rule by Gelbman (supra), can be taken as indicating its belief that the probability of successful fraud was so slight as not to warrant statutory protection of the carrier. Thus to infer from the 1958 MVAIC legislation and the 1976 municipal notice of claim provision that the 1939 Legislature intended to charge all infants with the neglect of their parents to give notice and make no allowance at all for the effect of infancy on the independent rights of the infant claimant, if not a complete nonsequitur, is simply untenable. The more particularly is this so when one realizes (1) that all three statutes call for a factual determination of the effect of disability, the only difference being that under the General Municipal Law the determination is a condition of filing while under the other two statutes it is a condition of recovery, and (2) that nothing in the 1938 presentation by the insurance industry in opposition to amendment of section 167 suggests that it believed infancy not to be part of the “reasonable possibility” equation and, therefore, was misled in its actuarial calculations of liability insurance premiums.

Because the statute gives Daniel an independent right to give notice to and to recover from the carrier, he is no more vicariously chargeable with his parents’ delay than would any other claimant be chargeable with the delay of the unrelated tort-feasor-insured who caused his or her injury. The conditions imposed upon the exercise of those rights are that it be shown that it was not reasonably possible that notice be given within the time prescribed by the policy and that notice was given as soon as was reasonably possible. When those two conditions are met “the statute shifts the risk of the insured’s delay to the compensated risk-taker who can initially accept or reject those for whom it will bear such risks” (Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 568, supra).

The policy prescribed time for notice of an occurrence under its comprehensive personal liability coverage is “as soon as practicable,” a standard less stringent than the statute’s “as soon as reasonably possible” (cf. Greyhound Corp. v General Acc. Fire & Life Assur. Corp., 14 NY2d 380; Deso v London & Lancashire Ind. Co. of Amer., 3 NY2d 127; Mason v Allstate Ins. Co., 12 AD2d 138; see 2 NY PJI 1015). In the present case, therefore, the factual determinations under both prongs of the statute are essentially similar and in either case factual issues are involved (id.; Ferguson v Nationwide Mut. Ins. Co., 61 Misc 2d 912). The Supreme Court held, whether as a matter of law or of fact is not clear, that delay prior to the appointment of a guardian was not a bar. The Appellate Division which held infancy irrelevant did not consider what effect it should have if relevant. The law has not blindly insisted upon majority as the point for removal of disability in all cases. Thus, emancipation prior to majority has triggered certain infant rights (Badigian v Badigian, 9 NY2d 472, supra), and the common law gave a 12 year old a voice in determining his religious training (Martin v Martin, 308 NY 136) and has held infants of varying ages well below 18 responsible for torts or for contributory (now comparative) negligence (see PJI 2:23, 2:49). It is not the place of a dissent to determine whether there legally could have been or factually was a point prior to appointment of Daniel’s guardian when it was “reasonably possible” for him to give notice. The Appellate Division having failed to consider the issue at all, the matter should be remitted for its consideration of the facts and the law, if as above suggested the Supreme Court judgment is not reinstated because of Allstate’s defective notice of disclaimer.

Order affirmed, etc.

       Indeed the contrary can be inferred, for Edwin Patterson, the Chairman of the Committee on Insurance Law Revision, speaking of requested revisions (later made) to what is now subdivision 3 of section 167, said (Hearings, NY Legislative Joint Committee for Recodification of the Insurance Law [1938], p 694): “As far as I am concerned, I would rather not make any exceptions to this liability, unless it is shown that a definite abuse has developed. That was the purpose of the amendment of 1937 and unless you can show there is some recognized evil to be avoided, I do not see why those policies should not come under the usual classifications.”


text:
    In the Matter of Catherine Sanna, Appellant, v Lindenhurst Board of Education, Respondent.
    Argued October 8, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      Ira S. Schneider for appellant.

      Edgar Hills for respondent.
   OPINION OF THE COURT

Memorandum.

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

During a public meeting on June 4, 1980, the Lindenhurst Board of Education went into executive session and voted to terminate petitioner’s employment as a probationary teacher. Petitioner, alleging that the executive session violated “open meeting” provisions of the Public Officers Law and Education Law, brought this proceeding to obtain reinstatement. Supreme Court held that the board’s dismissal of petitioner was a nullity and awarded petitioner counsel fees. The Appellate Division modified by reinstating the board’s determination that petitioner be dismissed.

It is undisputed that the board’s executive session was improperly convened. Subdivision 1 of section 100 of the Public Officers Law states that a public body may conduct an executive session only “[u]pon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered”. No such public motion was made before the executive session. Nonetheless, petitioner is not entitled as a matter of law to reinstatement. Section 102 of the Public Officers Law provides that whether to declare void an action taken in violation of the statute is a matter for the court’s discretion (see Matter of New York Univ. v Whalen, 46 NY2d 734). In its opinion, the Appellate Division expressly stated that it was exercising its discretion in denying petitioner’s request for reinstatement. On the record here, it cannot be said that the Appellate Division abused its discretion to fashion appropriate relief.

Likewise, there was no abuse of discretion in the Appellate Division’s refusal to order petitioner’s reinstatement even though the vote to dismiss petitioner should not have been taken at an executive session. Subdivision 3 of section 1708 of the Education Law states that “[t]he meetings of all such boards shall be open to the public, but said boards may hold executive sessions”. Assuming without deciding for present purposes that this statute permits closed-door discussions but prohibits the actual casting and recording of votes by a board in executive session (see Matter of Kursch v Board of Educ., 7 AD2d 922; Matter of Kramer, 72 NY St Dept Rep 114, 115), appellant is not entitled to the relief sought. Although the Education Law does not expressly vest the courts with discretion, as does the Public Officers Law, such discretion has properly been read into the statute (see Matter of Kursch v Board of Educ., supra). To the extent that Matter of United Teachers of Northport v Northport Union Free School Dist. (50 AD2d 897) may stand for a contrary proposition, it is disapproved.

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

Order affirmed, with costs, in a memorandum.


text:
    Norden Restaurant Corporation, Appellant, v Sons of the Revolution in the State of New York, Inc., Respondent.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      Joseph D. De Salvo for appellant.

      William T. Livingston, III, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The judgment entered in favor of defendant conforms with this court’s prior determination (51 NY2d 518).

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


author: Chief Judge Cooke

text:
    Michael J. Hogan, Respondent, v Herald Company, Doing Business as Syracuse Herald Journal, et al., Appellants, et al., Defendants.
    Argued October 5, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      S. Paul Battaglia for appellants.

      Joseph A. Ryan and Carl T. Putzer for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the opinion by Justice Richard D. Simons at the Appellate Division (84 AD2d 470).

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

Chief Judge Cooke

(dissenting). I agree that plaintiff is a private individual with respect to his defamation claim and that Chapadeau v Utica Observer-Dispatch (38 NY2d 196) sets forth the applicable standard by which to measure defendants’ conduct. Because plaintiff failed to make out a prima facie case under Chapadeau, defendants’ motion for summary judgment should have been granted and the complaint dismissed. I, therefore, respectfully dissent.

Plaintiff raised no substantial question that defendants had not “acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (Chapadeau v Utica Observer-Dispatch, supra, at p 199). The unverified complaint contains mere general, conclusory statements. In the only affidavit submitted in opposition to defendants’ motion, plaintiff’s father stated that he told the defendant reporter that his son had not been arrested. Uncontradicted, however, were the reporter’s sworn statements that the police chief confirmed that plaintiff “had indeed been arrested on a criminal mischief charge” and that the Town Justice told him “that ‘the case’ was due to be heard in his court at a later date.” Also uncontroverted is the reporter’s statement that, when contacted by the reporter, plaintiff did not deny that he had been arrested and told the reporter merely “that the arrest ‘was all a joke * * * that was taken care of’ ”.

There is thus no triable issue as to whether defendants acted in a grossly irresponsible manner. The complaint should therefore have been dismissed. In light of this disposition, I find it unnecessary to determine the vitality and applicability of Edwards v National Audubon Soc. (556 F2d 113, cert den sub nom. Edwards v New York Times Co., 434 US 1002).

Order affirmed, etc.


text:
    The People of the State of New York, Appellant, v Robert S. Griswold, Respondent.
    Argued October 8, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      Robert J. Simpson, District Attorney, for appellant.

      La Vern M. Brister for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A new trial is warranted to resolve the issue of whether defendant invoked his right to counsel prior to making certain incriminating statements. In People v Pepper (53 NY2d 213), we determined that the principle enunciated in People v Cunningham (49 NY2d 203), that once a suspect in custody requests the assistance of counsel he cannot be questioned further in the absence of an attorney, must be applied retroactively. Inasmuch as the defendant made a suppression motion in connection with his original trial, he may now assert his Cunningham argument on the appeal from his retrial (see People v Sanders, 56 NY2d 51, 66).

In addition, we believe that the trial court erred in refusing defendant’s requested charge on the issue of voluntariness. Defendant sought to have the court charge that the testimony of two witnesses who stated that the defendant had asked for counsel could be considered by the jury in determining the voluntariness of the defendant’s subsequent confession. The charge was relevant to an issue before the jury and we perceive no valid reason for its denial.

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 Leon Gayle, Appellant.
    Decided November 16, 1982
    APPEARANCES OF COUNSEL

      Steven T. Wax for appellant.

      Patrick H. Mathews, District Attorney (Ferris D. Leobus of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. We agree with the determination of the Appellate Division that the warrantless arrest in defendant’s motel room was justified by the presence of exigent circumstances.

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


text:
    The People of the State of New York, Respondent, v Robert J. Farrell, Appellant.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      Richard I. Mulvey for appellant.

      Benjamin J. Bucko, District Attorney (Stephen M. Bowman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the circumstances of this case, the trial court properly denied defendant’s motion for inspection of the test ampoule used in administering the breathalyzer test given to defendant or alternatively to dismiss the indictment for driving while having .10 of one per centum or more by weight of alcohol in his blood and driving while ability impaired by the consumption of alcohol. The ampoule had been destroyed in accordance with routine practice. Defendant submitted no evidence to show that the ampoule could have been reanalyzed in such a fashion as to produce material evidence, and the record does not reflect that an opportunity to present evidence on this issue was ever requested. As well, defendant’s motion was interposed some two and one-half months after his arrest. Thus, the trial court correctly ruled that the People were not required to preserve the test ampoule and that the option of examining another ampoule from the same batch along with the procedures required to authenticate the test results provided adequate protection of defendant’s due process rights.

The trial court correctly admitted certain certificates showing the results of analyses of a sample ampoule, which were used in laying a foundation for admission of the test results, as business records. The certificates recited and uncontroverted testimony showed that the reports were prepared in the ordinary course of the New York State Police Laboratory’s business and that it is the regular course of the laboratory’s business to make such records. Further, the records list the date the analyses were performed, the individuals who conducted the tests, the materials that were analyzed, and the results that the tests disclosed. Consequently, they were properly admitted as business records (People v Gower, 42 NY2d 117, 121).

Defendant’s argument that the ampoules used were too old to be reliably accurate was not preserved because it was not raised before the trial court.

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.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


text:
    Herbert L. Brickman, Appellant-Respondent, v F. W. Woolworth Company, Respondent-Appellant.
    Argued October 4, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      Raymond, T. Munsell, Paul Windells, Jr., and Kenneth W. Greenawalt for appellant.

      Jon Paul Robbins and Herbert L. Brickman, pro se, for Herbert L. Brickman, respondent.
   OPINION OF THE COURT

On defendant’s appeal: Order reversed, with costs, and complaint dismissed for reasons stated in the dissenting memorandum by Presiding Justice Francis T. Murphy, Jr., at the Appellate Division on the earlier appeal (66 AD2d 737-740).

On plaintiff’s appeal: Appeal dismissed, without costs, as academic in view of the disposition made on defendant’s appeal.

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


text:
    In the Matter of John J. Sullivan, Appellant, v Donna L. Sullivan, Respondent.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      Thomas J. O’Connor for appellant.

      F. Richard Decatur, Jr., and Paul R. Engster for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The Appellate Division substituted its own exercise of discretion not to accept jurisdiction for the exercise of discretion by Family Court to accept such jurisdiction. Inasmuch as we conclude that there was no abuse of discretion or other error of law by the Appellate Division with respect to this latter disposition our review is at an end (see People ex rel. Gluch v Gluch, 56 NY2d 619).

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


text:
    Fred Wissner, Respondent, v 15 West 72nd Street Associates, Appellant.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      Charles M. Yablon for appellant.

      Harold W. Grubart for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by the late Justice Vincent A. Lupiano at the Appellate Division (87 AD2d 120).

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


text:
    Lawrence Snediker et al., Appellants, v County of Orange, Respondent, et al., Defendants.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      John S. McBride for appellants.

      Eugene J. McGuinness for respondent.
   OPINION OF THE COURT

Memorandum.

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

Though, in the spirit of Alford v Sventek (53 NY2d 743, 745), the oral communication from the juror to the Trial Judge, and the communication between the juror and the clerk regarding the juror’s wife’s desire that the juror telephone her, should have been conveyed to counsel, we agree with the Appellate Division that, in light of the undisputed nature of these communications, no prejudice resulted. Moreover, on the record of this case, there was no showing of the “substantial risk of prejudice” necessary to warrant the granting of the motion to set aside the verdict (see People v Brown, 48 NY2d 388, 394).

Furthermore, the hearing Judge properly ruled that the thought processes of the jurors should not be invaded by questions concerning the possibility that their fellow juror’s prospective inability to keep his appointment had operated as an “exterior influence” affecting their votes. Indeed, since the circumstances to which the motion was directed were based on little more than speculation as to the possibility of prejudice, no testimonial inquiry of the jurors should have been undertaken at all (see People v Holmes, 72 AD2d 1, 6; Cangilos v Schermerhorn, 41 AD2d 780, 781).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Zenek Podolsky, Doing Business as Coronet Plaza Associates, Appellant, v Equifax, Inc., et al., Respondents.
    Decided November 16, 1982

      APPEARANCES OF COUNSEL

      Bruce S. Reznick for appellant.

      Richard R. Lutz for Equifax, Inc., respondent.

      Thomas F. Munno for Baker-Merin Associates, Inc., respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 585).

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


text:
    I Q Originals, Inc., Appellant, v Boston Old Colony Insurance Company, Respondent.
    Argued October 6, 1982;
    decided November 16, 1982

      APPEARANCES OF COUNSEL

      Thomas R. Newman and Sue C. Jacobs for appellant.

      Joseph B. McDonald for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by the late Justice Vincent A. Lupiano at the Appellate Division (85 AD2d 21).

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


text:
    In the Matter of J. Richard Sardino.
    Decided November 16, 1982
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable J. Richard Sardino is suspended, with pay, effective immediately, from his office of Judge of the City Court of the City of Syracuse, New York, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Judges Jasen, Jones, Fuchsberg and Meyer. Chief Judge Cooke and Judges Gabrielli and Wachtler dissent and vote not to suspend pending disposition of the request for review.


text:
    In the Matter of Edward Ahearn et al., Respondents, v Mary S. Burch, Appellant. In the Matter of Mary S. Burch, Appellant, v Mary J. England, as Commissioner of Social Services of the Commonwealth of Massachusetts, et al., Respondents. Katherine A. Dwyer, an Infant, by Her Guardian ad Litem F. Richard Decatur, Jr., et al., Appellants, v Frances Ahearn et al., Respondents.
    Submitted November 4, 1982;
    decided November 16, 1982
   Chief Judge Cooke taking no part.


text:
    Harold G. Lacks, Appellant, v Roy M. Cohn, as Preliminary Executor of the Estate of Irene R. Lacks, Deceased, Respondent, et al., Defendants.
    Decided November 16, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no further appeal pursuant to CPLR 5601 (subd [d]) lies in this action.


text:
    Marcella H. Schmidt et al., Appellants, v S. M. Flickinger Co., Inc., et al., Respondents.
    Submitted October 11, 1982;
    decided November 16, 1982
   Motion to withdraw appeal granted and appeal withdrawn, without costs.


text:
    Sean O’Connor, Plaintiff, v Serge Elevator Co., Respondent, et al., Defendant, and K. W. Construction Corp., Defendant and Third-Party Plaintiff-Appellant. A & M Wallboard, Inc., Third-Party Defendant-Respondent.
    Argued October 10, 1982;
    decided November 18, 1982

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn, J. Robert Morris and Michael Majewski for third-party plaintiff-appellant.

      Douglas A. Boeckmann for respondent.

      Steven B. Prystowsky for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The appeal by K. W. Construction Corp. (K. W.) as against Serge Elevator Company (Serge) is dismissed, with costs, on the ground that K. W. is not a party aggrieved by so much of the order as granted K. W. a new trial against Serge. On K. W.’s appeal as against A & M Wallboard, Inc. (A & M), the order of the Appellate Division should be reversed, with costs, and judgment granted in favor of K. W. against A & M.

Sean O’Connor was employed by A & M, a subcontractor hired to install drywall at a 32-story construction project in Manhattan. Serge was the subcontractor responsible for installing the building’s elevators. O’Connor was injured one day when he was struck by one of Serge’s elevators while leaving his workplace for lunch.

O’Connor brought suit against Serge and K. W., the general contractor. K. W., in turn, sought recovery from Serge and A & M under their respective contracts’ indemnity clauses.

At trial, O’Connor prevailed on his claim against K. W. The trial court, however, dismissed K. W.’s indemnity actions against both Serge and A & M. The Appellate Division modified by reinstating K. W.’s cross claim against Serge and remanding for a new trial on that issue. K. W. now appeals to this court.

K. W.’s appeal insofar as it relates to Serge should be dismissed. K. W. was unable to obtain the full relief it sought — judgment for indemnification as a matter of law — but it was granted a new trial. In these circumstances, K. W. is not aggrieved by the order (see Lee v Gander, 271 NY 568) and, hence, it is not authorized to take an appeal from that order (see CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals, § 91, p 394).

The indemnity clause in A & M’s contract included personal injuries “arising out of the work which is the subject of this contract”, regardless of whether caused by A & M, K. W., or others. The contract could not be performed, of course, unless A & M’s employees could reach and leave their workplaces on the job site. The instant injuries, occurring during such a movement, must be deemed as a matter of law to have arisen out of the work. Thus, K. W. was entitled to indemnity from A & M.

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

On appeal as against Serge Elevator Co.: Appeal dismissed, with costs.

On appeal as against A & M Wallboard, Inc.: Order reversed, with costs, and judgment granted in favor of appellant against A & M Wallboard, Inc.


text:
    New York Telephone Company, Respondent, v State of New York, Division of State Police, Appellant.
    (Claim No. 60423.)
    Argued October 5, 1982;
    decided November 18, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey and William J. Kogan of counsel), for appellant.

      Martin J. Murtagh and Saul Scheier for respondent.
   OPINION of the court

Memorandum.

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

Claimant contracted with defendant to provide “Data-speed 40” telecommunications services for the State Police teletype system, and the Public Service Commission (PSC) approved claimant’s rate tariffs for that service. As part of a subsequent general rate case, the PSC ordered a rate increase for claimant’s “Dataspeed 40” service. In a letter to the PSC, the Superintendent of State Police protested this increase and maintained that it conflicted with the terms of the State Police’s contract with claimant. The PSC deemed this letter to be a petition for rehearing, rejected the superintendent’s contentions and denied the petition. Defendant sought no direct administrative or judicial review of the PSC order.

In this action by claimant to recover the amount owed it under the increased rates, defendant now challenges the validity of the higher rates. Defendant should be barred from doing so. In denying the petition for rehearing, the PSC passed on the same issue that defendant now seeks to litigate. Defendant had an opportunity to challenge the PSC determinations through an article 78 proceeding, but chose not to do so. Having failed to seek direct review of the PSC rate determination, defendant is precluded from making the instant challenge to that determination. Summary, judgment, therefore, was properly granted to claimant.

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

Order affirmed, with costs, in a memorandum.


text:
    William J. Beinin, Appellant, v Ken Berk et al., Respondents.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Lewis H. Fishlin for appellant.

      B. Jennifer Jaffee for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 884; see November v Time, Inc., 13 NY2d 175).

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


text:
    Daniel H. Mahoney, Respondent, v Town of Santa Clara, Appellant. (And a Third-Party Action.)
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Daniel H. Mahoney, appellant pro se.

      John E. Mellon for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 718).

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


text:
    Marion G. Harder, Appellant, v Arthur F. McGinn, Jr., P. C., et al., Respondents.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Marion G. Harder, appellant pro se.

      Robert M. Brown for respondents. .
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (89 AD2d 732; see Levine v Graphic Scanning Corp., 87 AD2d 755; Cronin v Scott, 78 AD2d 745).

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


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Benjamin Quarles, Respondent.
    Argued October 15, 1982;
    decided November 18, 1982

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Steven J. Rappaport of counsel), for appellant.

      Steven J. Hyman and Wayne Brody for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It was only after defendant had been frisked and his hands handcuffed behind his back that, in consequence of the discovery of an empty shoulder holster, Officer Kraft asked him where the gun was. Pointing to a liquid soap carton several feet away, defendant replied, “The gun is over there.” At the time defendant was surrounded by four police officers whose guns had been returned to their holsters because, as Officer Kraft testified, “the situation was under control”. Nothing suggests that any of the officers was by that time concerned for his own physical safety.

Inasmuch as defendant’s response to the police interrogation occurred while he was in custody, before he had been given the preinterrogation warnings to which he was constitutionally entitled, the courts below properly suppressed defendant’s statement and the gun which Officer Kraft had found on reaching into the liquid soap carton to which defendant had pointed. Similarly, the statements made by defendant only minutes later after he had been given his preinterrogation warnings were properly suppressed as having been tainted by the seizure of the gun and defendant’s prewarning statement as to its location.

Even if it be assumed that an emergency exception to the normal rule might be recognized if the purpose of the police inquiry had been to locate and to confiscate the gun for the protection of the public as distinguished from their desire to obtain evidence of criminal activity on the part of defendant — a proposition as to which it is not necessary in this case to express an opinion — there is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety or that the police interrogation was prompted by any such concern. Nor, so far as appears from the record, was any such theory advanced by the People at the suppression hearing. Undeniably neither of the courts below, with fact-finding jurisdiction, made any factual determination that the police acted in the interest of public safety.

The two cases on which the dissent would rely are inapposite. In People v Huffman (41 NY2d 29) the question was put to the defendant while the police were engaged in a general investigation of possible criminal activity but before they were aware that any crime had been committed and was framed as a threshold inquiry seeking general information only (“What are you doing back here?”) rather than calculated to elicit evidence of criminal activity (“Where is the gun?”). In People v Chestnut (51 NY2d 14, cert den 449 US 1018) where the defendant’s challenge was based primarily on his constitutional right to be free from unreasonable search and seizure under the Fourth Amendment of the Federal Constitution rather than his constitutional right to preinterrogation warnings, although the defendant and his companion were lying prone on the ground and the officers were standing over them with their guns drawn, the defendant had not been reduced to a condition of physical powerlessness as here, i.e., the situation was not yet “under control”, and the police question was found to have been prompted by the officers’ concern for their personal safety. We noted that the absence of any constitutionally mandated preinterrogation warnings did not call for suppression inasmuch as there was no custodial interrogation.

Wachtler, J.

(dissenting). In my view, under the circumstances, the police responded to an emergency situation in an entirely reasonable manner and, therefore, suppression of the weapon and defendant’s statements cannot be justified on the ground that he was subjected to “custodial interrogation” in violation of his Miranda rights.

On September 11, 1980 at approximately '12:30 a.m. Officer Frank Kraft and his partner, Officer Sal Scarring, were on road patrol on 47th Avenue at Francis Lewis Boulevard, Queens, when a young woman approached and requested assistance. She stated that she had just been raped by a man she described as a black male, approximately six-feet tall wearing a black jacket with the name “Big Ben” in yellow letters on the back. She indicated that her assailant had entered the nearby A&P supermarket on Francis Lewis Boulevard, and that he had a gun.

The officers drove the woman to the supermarket where Kraft approached the front of the store on foot while Scarring radioed for assistance. Kraft then observed the defendant, who matched the description given by the woman, approaching the checkout counter. Defendant then fled to the rear of the store with Kraft, who lost sight of the defendant for several seconds, in pursuit. Kraft told defendant to stop and put his hands over his head. Other officers who had arrived in the interim surrounded defendant while Kraft frisked him, discovering an empty shoulder holster.

Kraft handcuffed defendant’s hands behind his back and asked him where the gun was. The defendant looked in the direction of a stack of cartons and responded “the gun is over there”. The gun was not visible but Kraft reached into one of the cartons and retrieved a loaded revolver. He placed defendant under arrest and advised him of his Miranda rights. Kraft then asked defendant if he owned the revolver and received an affirmative reply. In response to another question posed by Kraft defendant indicated that he purchased the weapon in Miami, Florida.

Criminal Term suppressed the statement “the gun is over there” because defendant had not yet been informed of his Miranda rights, and also suppressed the revolver and postarrest statements as tainted evidence (Wong Sun v United States, 371 US 471). The Appellate Division affirmed, without opinion. In my view neither the letter nor the spirit of the Supreme Court’s decision in Miranda v Arizona (384 US 436) was violated under these circumstances, and, accordingly, I dissent and vote to reverse.

In Miranda v Arizona (supra, at p 471) the Supreme Court held that statements obtained as the result of a custodial interrogation of a defendant may not be used at trial absent some demonstration that procedural safeguards were employed to secure the defendant’s privilege against self incrimination. The court recently interpreted the meaning of the term “interrogation”, as used in this context, as including not only express questioning but also its functional equivalent, defined as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (Rhode Island v Innis, 446 US 291, 301).

Careful analysis of the Miranda and Innis decisions suggests that the court is primarily concerned with discouraging official conduct which, examined objectively, reveals an unmistakably deliberate attempt to elicit some incriminating response from the detainee as opposed to official conduct designed to achieve an articulable and legitimate noninvestigatory purpose. Neither the Supreme Court nor this court has ever ruled that a response to a question properly classifiable in the latter category should be suppressed as the product of a custodial “interrogation” in violation of Miranda’s admonition.

In People v Huffman (41 NY2d 29) we held, after determining that defendant was clearly in custody, that the question “[w]hat are you doing back here?” directed at a suspect discovered hiding in some shrubbery behind a store at 4:00 a.m. did not constitute “interrogation” within the meaning of Miranda. We determined that the question “was designed to clarify the nature of the situation confronted, rather than to coerce a statement * * * [the officers] had found themselves, quite inadvertently, in the middle of a possible criminal transaction and immediate clarification was necessary before taking drastic action” (41 NY2d, at p 34).

In People v Chestnut (51 NY2d 14) we addressed a factual situation remarkably similar to the instant case. An officer in pursuit of two robbery suspects, at least one of whom was believed armed, observed one pass a small object to the other. After the suspects were apprehended and, while they were lying on the ground with the officer’s revolver trained on them, the recipient of the object was asked “[w]here is the gun?” Citing Huffman, we specifically held that none of defendant’s Fifth Amendment rights were violated notwithstanding that no Miranda warnings were given before the question was posed. We expressed our “opinion that this single question did not constitute custodial interrogation, and, thus, the response given by defendant — ‘It’s right here’ — need not be suppressed even though defendant was not informed of his constitutional rights before answering” (51 NY2d, at p 23, n 8 [citation omitted]). Since there could be no doubt, after Huffman, that defendant was in custody (although not under arrest) the clear import of our holding was that the question was not, under the circumstances, the equivalent of “interrogation” within the meaning of Miranda.

Although the officer in Chestnut indicated that he believed himself to be in physical danger when he asked the suspect for the weapon, the factual finding by the courts below in this case that the officer’s safety was never in question does not require a contrary result. Initially, it is worth noting that nothing in our opinion in Chestnut either explicitly or implicitly suggested that our determination that the question was not prescribed by Miranda (as opposed to our holding that the question was not an improper stop and frisk under the Fourth Amendment) was based on the officer’s perceived threat of physical danger.

More significantly, the danger posed to the general public in this case due to the officers’ inability to locate a loaded weapon — a threat which many would perceive to be even more insidious than the threat to the officer’s life in Chestnut — certainly provides a sufficiently compelling noninvestigatory purpose for questioning defendant about the gun’s location without first warning defendant of his Miranda rights. Approaching the situation with foresight, as Officer Kraft would have, it is evident that the loaded weapon here could have been passed to a cohort, an accomplice bent on securing the freedom of his captured ally, or, worse yet, dropped on the street outside the supermarket to become the weapon of an innocent child, a mentally unstable adult, or anyone else who might decide to use it. Faced with an obvious emergency requiring an immediate response, Officer Kraft, like the officer in Huffman, acted reasonably and, in my view, properly in questioning defendant in a limited manner “designed to clarify the nature of the situation confronted” (41 NY2d, at p 34).

To require a police officer to provide Miranda warnings before asking about the location of a weapon under the circumstances of this case would only unnecessarily enhance the potential for death or severe injury. Far from revealing a deliberate design on the part of the officer to elicit an incriminating statement from defendant, the record before us portrays a prudent measure undertaken to neutralize the very real threat of possible physical harm which could result from a weapon being at large. Nothing could be more appropriate here than our observant understatement in Huffman (supra, at p 34) that “[t]his was no time for preinterrogation warnings, or the tender of legal representation”.

Miranda was never intended to enable a criminal defendant to thwart official attempts to protect the general public against an imminent, immediate and grave risk of serious physical harm reasonably perceived. Any result which discourages the police from pursuing this type of precautionary measure by requiring Miranda warnings beforehand, at the risk of losing the use of all evidence derived thereafter, is contrary to reason and binding precedent.

Accordingly, I respectfully dissent and vote to reverse.

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

Order affirmed in a memorandum.

      . In an analogous factual context, the Fifth Circuit Court of Appeals, sitting en banc, expressed a similar view: “We find ourselves unable to condemn, after the fact and on grounds of some delicacy, such mild prophylactic measures reasonably calculated to ensure the safety of the officers, the suspect, and others on the scene as well. To be sure, the court below concluded that the agents did not feel physically threatened by Castellana, but in our view the mild measures adopted were justified by a reasonable prudence under the circumstances and did not require an actual fear of imminent harm to validate them” (United States v Castellana, 500 F2d 325, 326-327 [n omitted]).

      . Nor do we place any significance, as does the majority, in the fact that the police officer’s question was not found by the suppression court to have been prompted by the officer’s concern for his personal safety or the safety of others. Indeed this is not an appropriate standard to measure the reasonableness of a police officer’s conduct in a situation such as this which was fraught with danger. This was our holding in People v Moore (32 NY2d 67, 72): “Then, too, we attach no significance to the fact that at the suppression hearing the arresting officer did not articulate any feeling of fear for his own safety or for the safety of others at the time of the search”.

      . In view of the validity of the first question asked of defendant regarding the location of the gun and the admissibility of his answer, there is no longer a predicate to suppress the revolver. Seizure of the weapon violated no Fourth Amendment right of the accused. Likewise, all of defendant’s postarrest statements are properly admissible, for the questions which elicited those responses were prefaced by the administration of proper Miranda warnings.


text:
    L. B. Smith, Inc., Appellant, v Bradley & Williams, Inc., Respondent, et al., Defendant.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Peter J. Murrett, III, for appellant.

      Karl S. Essler for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to deny summary judgment to defendant Bradley & Williams, Inc., to grant summary judgment to plaintiff and to remit the case to Supreme Court for entry of a judgment declaring that said defendant is obligated to indemnify plaintiff for any recovery in the underlying action but not to defend the' action; as so modified, the order should be affirmed.

For the reasons stated in the dissenting memorandum at the Appellate Division, the lessee is obligated by the terms of the agreement (which is one of indemnification rather than exoneration) in the lease to indemnify the lessor for any recovery obtained against it in the underlying personal injury action of defendant Palmeri (see Gross v Sweet, 49 NY2d 102, 108). Nothing in the language of the agreement however requires the lessee to provide a defense for the lessor in that action. A breach of the obligation to provide insurance for the lessor would at most provide a predicate for an action for damages sustained as a result of the breach; it would not authorize the entry of what might be described as the equivalent of a decree of specific performance.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to plaintiff, and case remitted to Supreme Court, Wyoming County, for entry of judgment in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Theresa Fazio et al., Appellants, v Daniel Joy, as Commissioner of Department of Housing Preservation and Development, Office of Rent and Housing Maintenance (Rent Control Division), Respondent.
    Decided November 18, 1982

      APPEARANCES OF COUNSEL

      Bernard Meyerson and Louis J. Russo for appellants.

      Julius Copeland and Harry Michelson for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 604). We emphasize that the proper standard of review of determinations by the Commissioner of Department of Housing Preservation and Development is a “rational basis” test (Matter of Asen Bros. & Brook v Leventhal, 54 NY2d 839; Matter of Colton v Berman, 21 NY2d 322, 329).

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


text:
    The People of the State of New York, Respondent, v Vernon Cotman, Appellant.
    Argued October 15, 1982;
    decided November 18, 1982

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Nikki Kowalski and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the trial court erred in permitting the prosecution to elicit general background testimony concerning narcotics investigation techniques not employed in this case is not without merit; however, any alleged error in the admission of this evidence would certainly be harmless in this case considering the unequivocal testimony of Officer Brown identifying defendant as the perpetrator of the crime in question.

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

Order affirmed in a memorandum.


text:
    In the Matter of Michael Kavanagh, as District Attorney of the County of Ulster, Appellant, v Francis J. Vogt, as County Judge of Ulster County, Respondent.
    Decided November 18, 1982
    APPEARANCES OF COUNSEL

      Michael Kavanagh, District Attorney (Marsha Solomon of counsel), appellant pro se.

      Robert Abrams, Attorney-General (Peter J. Dooley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed. The Appellate Division properly determined that the extraordinary remedy of prohibition does not lie unless a court acts in excess of its jurisdiction or its authorized powers (La Rocca v Lane, 37 NY2d 575, cert den 424 US 968). The County Court did not exceed its jurisdiction or its authorized powers in disqualifying the petitioner, a District Attorney, and his staff from prosecuting certain indictments due to a conflict of interest created by the presence of a former Assistant Public Defender in that office (see People v Shinkle, 51 NY2d 417). Whether disqualification was warranted pursuant to People v Shinkle (supra) in this particular case is a question of law not re viewable by way of prohibition.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment affirmed, without costs, in a memorandum.


text:
    Patrick Lenihan et al., Appellants, v City of New York et al., Respondents.
    Argued October 13, 1982;
    decided November 18, 1982

      APPEARANCES OF COUNSEL

      Murray A. Gordon and Diane Serafin Blank for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Michael S. Adler, Leonard Koerner and Carolyn E. Demarest of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The reclassification plan must be said to have become fully operative when, on May 11,1979, the directive implementing the earlier personnel resolution was officially promulgated. The plan made clear, among other things, that, as of this date, the new title of warden had come into existence, the title of supervising warden was eliminated from the competitive class, advancement opportunities were significantly altered and no new promotional examinations would be ordered for the four consolidated positions. In light of the “final and binding” status of this plan and its ready ascertainability, the plaintiffs must be deemed aggrieved as of that time (Matter of Martin v Ronan, 44 NY2d 374, 381; Matter of Griffin v County of Westchester, 36 AD2d 831, affd 29 NY2d 944). Indeed, other employees who were similarly affected already had sought action in the courts (Matter of Basoa v New York City Dept. of Correction, Index No. 7396/79 [Supreme Ct, New York County], app dsmd App Div, 1st Dept., May 12, 1981).

However, as to the charge that the subsequent reclassification examination violates constitutional merit and fitness standards (NY Const, art V, § 6), cause for complaint could not have arisen before January, 1980 when, upon administration of the examination, its nature and implementation were revealed. Neither the resolution nor the promulgated plan had given notice of the conditions which would prevail when that test was given in January, 1980, particularly with respect to what, as the plaintiffs now allege, turned out to be a noncompetitive, nonobjectively graded oral test. Surely, by March 25, 1980, when the list which emanated from the examination was finally established and certified, and those who sat for the examination were notified of its results, this had become a distinct “final and binding” source of aggrievement.

These events in mind, it follows that, as measured from the dates on which the two separate aggrievements had matured, some 20 months and 9 months, respectively, were to elapse before the action before us, one for declaratory judgment, was commenced in November, 1980.

It is established that, when a suit for declaratory judgment is brought against governmental regulatory officials to settle a dispute over the resolution of which an article 78 proceeding would be appropriate, the four-month period of limitations which governs such a proceeding (CPLR 217) fixes the time within which a declaratory judgment action must be commenced (Solnick v Whalen, 49 NY2d 224).

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

Order affirmed, with costs, in a memorandum.