text:
    In the Matter of Port Jefferson Station Teachers Association, Inc., Respondent, v Brookhaven-Comsewogue Union Free School District, Appellant.
    Argued September 15, 1978;
    decided October 26, 1978
    APPEARANCES OF COUNSEL

      Frederic Block and Joel Markowitz for appellant.

      Noel D. Cohen and James R. Sandner for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner Teachers Association seeks in this proceeding to have confirmed an arbitration award under its collective bargaining agreement with respondent School District. The award would forbid assignment of specialist teachers outside their area of specialty. Special Term refused to confirm the award, but the Appellate Division unanimously reversed and granted the petition. The School District appeals.

Only one issue merits discussion. The School District contends that the arbitrator’s award was violative of public policy because it would restrict the control of the board of education over the educational program of the district.

There should be an affirmance. Incantations of "public policy” may not be advanced to overturn every arbitration award that impairs the flexibility of management of a school district. Every collective bargaining agreement involves some relinquishment of educational control by a school district. Only when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility, may it be set aside. Such a strong public policy does not exist in this case.

Article XXXIII of the collective bargaining agreement between the parties provided: "The Association and the Board recognize that an adequate number of competent specialists is essential to the operation of an effective educational program. In consideration of this, both parties agree that every effort should be made to provide the District with the necessary specialists. There shall be no reduction in the number of specialist teachers employed by the School District during this contract, provided there is no decrease in enrollment.” There was no decrease in enrollment. The district did not reduce the number of specialist teachers. Instead, the district assigned four specialist teachers to subject areas outside their specialty, thus effectively reducing the volume of specialty instruction. The Teachers Association invoked the multistep grievance procedure, and the matter in due course proceeded to arbitration, the School District never having sought a stay or objected that the dispute was not arbitrable.

The arbitrator found the district’s reassignment of specialists to be a violation of the collective bargaining agreement. Upon petition to confirm the award, however, the district argued that article XXXIII of the agreement was illegal as violative of public policy, and hence not subject to arbitration. Special Term dismissed this contention, but denied confirmation of the award on the ground that the arbitrator’s interpretation of the disputed article was "contradictory to the plain meaning of the article”. The Appellate Division reversed and granted the petition.

It is established law that absent clear prohibitions derived from constitution, statute, or common-law principles, arbitration under the terms of a collective bargaining agreement is a permissible forum for resolving disputes between a board of education and a teachers association (Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617). Of course, there are some duties or responsibilities so important that a school district will not be permitted to delegate them or to bargain them away. As to these matters, arbitrators may not alter the responsibilities vested by law in the board of education (see, e.g., Board of Educ. v Areman, 41 NY2d 527, 532-533; Matter of Cohoes City-School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 776-777). Arbitration is forbidden not because matters of public interest are involved, but because statutes require that the decisions be made by educational authorities (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 422-423 [concurring opn]).

In the Susquehanna case, rejected was the argument that staff size was within the board’s exclusive prerogative, and therefore not arbitrable (Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-618, supra).

The clause now in dispute is not materially different. As interpreted by the arbitrator, the clause required the district to maintain an agreed upon level of specialist services. The School District certainly had the power to conclude that such services were necessary, and to agree to maintain them for the period of the collective bargaining agreement. No strong public policy however derived, is violated by such a provision in a short-term collective bargaining agreement (see Matter of Port Washington Cent. School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 424-425 [concurring opn], supra; but cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275). Given the nature of an arbitration award, not reviewable for errors of law or fact, the award was not vulnerable (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229, 235).

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

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jack Prince, Respondent-Appellant, v David Gurvitz et al., Appellants-Respondents, et al., Defendants.
    Argued September 11,1978;
    decided October 26, 1978

      APPEARANCES OF COUNSEL

      Leonard Weber and John Venditto for respondent-appellant.

      Maurice A. Reichman for appellants-respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs. Turning first to defendants’ appeal, we agree with the courts below that plaintiff’s participation in the original scheme by defendant Gurvitz to obtain the automobile franchise by misrepresenting Gurvitz’ interest in the plan does not preclude recovery in this action which essentially seeks to recover for the subsequent loss of plaintiff’s interest in the firm as a result of defendants’ various machinations. Plaintiff’s earlier misconduct does not rise to the level of activity so offensive to public policy as to preclude resort to the courts to rectify subsequent wrongdoing. This is especially so where, as here, the connection between the original wrongdoing and the present action is tenuous at best. To be distinguished, of course, are cases such as those involving property illegally obtained, or contracts in violation of public policy, or contracts involving criminal activity, and those in which the wrong sought to be remedied in the action is directly connected to the original offensive conduct. This is not such a case.

We have considered defendants’ other arguments, and find them to be devoid of merit.

As to plaintiff’s cross appeal from so much of the order of the Appellate Division as deleted the award of punitive damages, it suffices to say that under no possible view of the facts in this case would an award of punitive damages have been proper.

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

Order affirmed.


text:
    Stanley J. Orr, Appellant, v Robert A. Lynch et al., Respondents.
    Argued September 19, 1978;
    decided October 26, 1978

      APPEARANCES OF COUNSEL

      Robert J. Hines for appellant.

      Charles E. Cooney, Jr., and Angela S. Cooney for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 949).

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


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Robert A. Peltak, Appellant.
    Argued September 18, 1978;
    decided October 26, 1978
    APPEARANCES OF COUNSEL

      E. Stewart Jones, Jr., for appellant.

      Thomas E. Mercure, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted for a new trial.

Three undercover agents testified that they were accompanied by two confidential informants to the Hampton Manor Restaurant on May 24, 1973. All three agents identified defendant as having made the drug sale. From the testimony of the agents it is unclear what the informants observed, but it appears that at least one of them identified the defendant prior to the sale. The defendant took the stand in his own behalf and offered the testimony of several credible witnesses to establish that he had not been present at the Hampton Manor Restaurant on the evening in question. To support the claim of misidentification, defendant sought disclosure of the identities of the informants. The court denied this motion.

Under these facts the court erred, as a matter of law, in not compelling the prosecutor to reveal the identity of the informants. As we noted in People v Goggins (34 NY2d 163, 172) "the defendant might become entitled to disclosure not by showing weaknesses in the prosecution case but by the development of his defense.” In Goggins, as here, the defendant gave a creditable explanation for his presence at the bar when arrested, denied being present in the bar at the time of the sale, and was corroborated in this respect by six alibi witnesses. Having presented the alibi defense, the accused was entitled to disclosure of the informants’ identities, since their testimony would likely have had a direct bearing on the alibi defense, and therefore on the question of guilt or innocence (People v Goggins, 34 NY2d 163, 170, supra).

Even if it be assumed, as the People contend, that the defendant’s need for disclosure was below the threshold established under Goggins, disclosure, in this case, should nevertheless have been mandated. The People conceded at trial that the informants had not been active for two and one half years. Indeed, the People indicated that they did not even know the informants’ whereabouts. The defendant, having made the initial showing as to the importance of disclosure (People v Goggins, supra, at p 169), the People should have come forward with some showing as to reasons, if any, why the names of the informants should not have been revealed. If it appeared that the interest of the State in preventing disclosure was attenuated and insufficient in view of the potential impact of the informants’ testimony then surely the State should have been obliged to disclose the information sought (see Brady v Maryland, 373 US 83, 86-87).

Gabrielli, J.

(dissenting). I dissent and vote to affirm defendant’s conviction of criminally selling a dangerous drug, and I do so upon the opinion at the Appellate Division.

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

Order reversed, etc.


text:
    In the Matter of Janet Hanover, as Administratrix of the Estate of William Hanover, Deceased, Appellant, v New York State Policemen’s and Firemen’s Retirement System, Respondent.
    Argued September 19, 1978;
    decided October 26,1978

      APPEARANCES OF COUNSEL

      Nicholas J. Sargent for appellant.

      Louis J. Lefkowitz, Attorney-General (Winifred C. Stanley and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Comptroller properly determined that the application for an ordinary disability retirement filed on August 14, 1975 by the appellant’s intestate, a member of the New York State Policemen’s and Firemen’s Retirement System, was canceled upon his death on October 6, 1975.

As appellant concedes, the retirement did not vest at the time of filing. Section 362 (subd aa, par 2) of the Retirement and Social Security Law expressly states that retirement shall not be effective until "as of a date approved by the [State] comptroller”. At the time of decedent’s demise, the Comptroller and his administrative aides had neither completed the investigation he was required to make for the purpose of passing on the merits of the application, nor fixed an effective date for retirement (cf. Matter of Cohen v Levitt, 36 AD2d 992). Moreover, on the basis of the record here, it cannot be said that it was error as a matter of law for the Appellate Division to find that, under the circumstances of this case, the passage of time between the filing and the death did not constitute undue delay.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v James Utley, Appellant.
    Argued September 21, 1978;
    decided October 26, 1978

      APPEARANCES OF COUNSEL

      Andrew C. Fine, Lawrence A. Vogelman and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Charles Testagrossa, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

No objection having been taken to the remarks in the prosecutor’s summation that have been raised on this appeal, including the comments expressing confidence in the truthfulness of the police officers, they are not preserved for review in this court (CPL 470.05, subd 2). The unanswered question put to the Trial Judge on this subject, without more, is hardly to be construed as a request to charge. Especially is this so because at the conclusion of the charge, which included no such instruction but did correctly enunciate many of the principles that might have aided the jury in judging the truthfulness of any witness’ testimony, defense counsel specifically informed the Trial Judge that he had no requests and no exceptions (see People v Cicchetti, 44 NY2d 803, 805; People v Robinson, 36 NY2d 224, 226, 228).

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

Order affirmed in a memorandum.


text:
    Michael M. Platzman, Respondent, v American Totalisator Company, Inc., Appellant, et al., Defendants. Michael M. Platzman, Appellant, v Computer Sciences Corporation, Respondent, et al., Defendants.
    Argued September 18,1978;
    decided October 24,1978

      APPEARANCES OF COUNSEL

      Michael M. Platzman, pro se, and Leonard H. King for Michael M. Platzman, appellant and respondent.

      Harold James and Neal L. Rosenberg for American Totalisator Company, Inc., appellant.

      Sheldon Raab and Robert Jay Bernstein for Computer Sciences Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

On plaintiffs appeal the order of the Appellate Division should be affirmed, with costs, on the memorandum at the Appellate Division.

On the appeal of American Totalisator Company, Inc., the order of the Appellate Division should be reversed, with costs, and summary judgment granted dismissing the complaint as to American Totalisator. In his motion papers plaintiff tendered no evidentiary proof in support of his conclusory assertions that American Totalisator dealt with him individually rather than only as an officer-employee representative of Taller & Cooper, that he individually otherwise had a legally cognizable interest in the alleged system as against American Totalisator, or indeed that his system was different from that disclosed in the 1964 patent which thereby became public knowledge. For plaintiff to succeed in opposing the motion for summary judgment he must come forward with a tender of admissible proof sufficient to require a trial of the material questions of fact on which he rests his claims. We agree with the dissenters at the Appellate Division that plaintiff failed to do this here.

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

On plaintiff’s appeal: Order affirmed, with costs.

On defendant American Totalisator Company, Inc.’s, appeal: Order reversed, with costs, and summary judgment granted dismissing the complaint as to American Totalisator Company, Inc. Question certified answered in the negative.


text:
    Vincent K. Murtha, Appellant, v Yonkers Child Care Association, Inc., et al., Respondents, et al., Defendant.
    Argued September 19, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Leon J. Greenspan and Arthur H. Goodman for appellant.

      Morton N. Wekstein for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversal of so much thereof as dismissed the cause of action against the association and that matter remitted to the Appellate Division for consideration of the facts (CPLR 5613), without costs, and, as so modified, the order should be affirmed, with costs to the individual defendants.

We cannot conclude as a matter of law that there was no evidence to support the jury’s verdict in favor of plaintiff on the first cause of action for breach of his contract of employment by the association. Stating the issue conversely, to reach such a result would call for a determination as a matter of law that the termination of plaintiff’s employment prior to the expiration of the term of his contract was for "cause” within the meaning of the contract provision. Only two grounds are urged to support the association’s contention that there was such cause; neither suffices. As to the first — plaintiff’s alleged misuse of his $1,000 annual allowance for the purchase of life and accident insurance rather than for health and disability insurance — the jury’s verdict in favor of plaintiff on the counterclaim based on this transaction forecloses the conclusion that this event constituted cause for his discharge as a matter of law. As to the second — the failure of plaintiff to appear at the hearing scheduled by the board of directors — such nonappearance could scarcely be characterized as a breach of contract. The contract provision for a pretermination hearing was for plaintiff’s benefit and he was at liberty to waive it.

As to the second cause of action against the individual defendants in tort for inducing a breach of the employment contract by the association, we agree with the Appellate Division that there was no evidence to sustain the jury’s verdict for plaintiff. A "director of a corporation is not personally liable to one who has contracted with the corporation on the theory of inducing a breach of contract, merely due to the fact that, while acting for the corporation, he has made decisions and taken steps that resulted in the corporation’s promise being broken” (Matter of Brookside Mills [Raybrook Textile Corp.], 276 App Div 357, 367). "[A] corporate officer who is charged with inducing the breach of a contract between the corporation and a third party is immune from liability if it appears that he is acting in good faith as an officer * * * [and did not commit] independent torts or predatory acts directed at another” (Buckley v 112 Cent. Park South, 285 App Div 331, 334). There is no evidence in this record of any independently tortious conduct on the part of any of the individual defendants.

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

Order modified, without costs, in accordance with the memorandum herein and the case remitted to the Appellate Division, Second Department, for consideration of the facts with respect to the cause of action against respondent Yonkers Child Care Association, Inc., and, as so modified, affirmed, with costs to the individual respondents against appellant.


text:
    International Mining Corporation et al., Appellants, v Aerovias Nacionales De Columbia S.A. et al., Respondents.
    Argued September 21, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Stanley W. Zawacki for appellants.

      John L. Conners, Paul H. Murphy and Lawrence D. Smith for respondents.
   OPINION OF THE COURT

Memorandum.

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

The issue is whether there is sufficient evidence in the record to support the jury’s finding of willful misconduct within the meaning of the Warsaw Convention (49 US Stat 3014). Article 25 of that Convention, which governs in this case, provides that a carrier may not avail himself of the limitations of liability fixed in the Convention "if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct”. (49 US Stat 3020.) Without undertaking a precise verbal definition of willful misconduct or its equivalent for the purposes of the Convention, we hold that the items of proof introduced, whether considered seriatim or in the aggregate, and viewed in the light most favorable to appellant shipper, while sufficient to sustain a finding of negligence, were insufficient as a matter of law to sustain the finding prescribed by the Warsaw Convention.

Against the factual background described in the opinion at the Appellate Division, it appears that following an earlier misdelivery of a shipment of platinum (later recovered) and complaint from the shipper, the carrier’s vice-president of cargo sales falsely assured the shipper that appropriate disciplinary actions had been taken and that "all employees handling such matters have been reminded to carefully adhere to procedures which are designed to ensure proper delivery”. It is to be noted that this assurance related to adherence to existing security procedures; no reference was made to the inauguration of any new or different procedures and none had been requested by the shipper. Appellant lists six of the procedural steps set down in the carrier’s cargo traffic manual. The evidence that there had been formal compliance with each of the pertinent prescribed steps (although concededly negligently performed) was not contradicted. Indeed it was stipulated that, while constituting ordinary negligence, "the action of defendants’ two employees, Robert J. Saunders and Robert Rubenstein, on June 25, 1969, in delivering two packages, numbered 862 and 863, to one Russo, an admitted impostor, was not of itself and standing alone an act of willfull misconduct within the meaning of the Warsaw Convention, as applied to this case.” No evidence was offered which established that the manual procedures, if carefully followed, were insufficient to provide reasonable security protection or that the carrier’s security system was otherwise deficient in design or organization.

While there was other evidence, too, which would have supported a finding of negligence, we agree with the Appellate Division that there was insufficient proof as a matter of law to sustain the requisite finding of willful misconduct or its equivalent as required by the Warsaw Convention.

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

Order affirmed.


author: Per Curiam.

text:
    In the Matter of Joseph D. Mintz, Respondent, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent, and Thomas W. Wallace, as Executive Director of the Board of Elections of the State of New York, et al., Appellants.
    Argued October 20, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      James B. Cantwell and Thomas P. Zolezzi, for New York State Board of Elections, appellant.

      John J. Olszewski for John V. Rogowski, appellant.

      John W. Tabner for Henry Gossel, appellant.

      John Carter Rice for Joseph D. Mintz, respondent.

      David E. Blabey for Vincent Doyle, respondent.
   OPINION OF THE COURT

Per Curiam.

At the judicial nominating conventions held by the Democratic, Republican, Conservative and Liberal Parties to fill five vacancies in the office of Justice of the Supreme Court for the Eighth Judicial District, 10 candidates were nominated. The State Board of Elections, pursuant to subdivision 1 of section 7-116 of the Election Law, assigned, in descending order, a row on the election ballot to each party according to the number of votes each party polled for its gubernatorial candidate at the last preceding gubernatorial election, to wit: Row A, Democratic; Row B, Republican; Row C, Conservative; and Row D, Liberal. In assigning column positions in Row A, the board followed traditional policy by positioning candidates in the order of their certification by the Eighth Judicial District Democratic nominating convention. Column positions for candidates in each of the remaining three rows were also assigned according to the candidates’ order of certification, except where a candidate had accepted the nomination of more than one party and it was not possible to place his name on the ballot exactly in the order of certification by the respective judicial nominating convention. Due to the operational limitations of the voting machines, an alignment of the order of certification of such candidates was required as no candidate’s name could be placed in more than one vertical column. Thus, the candidates’ names, as aligned, were placed in the first available column. Accordingly, the initial ballot would have appeared in the following format:

Row A (Democratic) Roberts Green Broughton Fallon Rogowski

Row B (Republican) Mintz Hewitt Bestry Doyle Gossel

Row C (Conservative) Roberts Green Broughton Fallon Gossel

Row D (Liberal) Mintz Green Broughton Doyle Gossel

However, candidate Rogowski, pursuant to subdivision 2 of section 7-116 of the Election Law, filed a timely demand to have his column position in Row A determined by lot. At the requested drawing, Rogowski’s name was selected first, followed by candidates Green, Broughton, Roberts and Fallon. Because of multiparty nominations of some of the candidates and voting machine limitations, the second ballot was structured as follows:

Row A (Democratic) Rogowski Green Broughton Roberts Fallon

Row B (Republican) Gossel Hewitt Bestry Mintz Doyle

Row C (Conservative) Gossel Green Broughton Roberts Fallon

Row D (Liberal) Gossel Green Broughton Mintz Doyle

Candidate Mintz then instituted this proceeding to compel the board to restore the ballot to its original format. Although Special Term dismissed petitioner’s application, the Appellate Division reversed the judgment and granted the relief requested. The board and candidates Rogowski and Gossel appeal to this court.

We conclude that the procedure followed by the board comports with the intent of the Election Law and was not unreasonable or arbitrary. No one contends, and indeed no one could contend, that the format of this initial ballot was without a rational basis. (Matter of Cooke v Lomenzo, 31 NY2d 244.) Nonetheless, by statute (Election Law, § 7-116, subd 2), where two or more candidates are nominated by one party for an office to which two or more persons are to be elected, a candidate may timely demand for a determination of ballot position by lot. In the instant case, Rogowski did so. As a result of the changes in column positions in Row A effected by his drawing, voting machine limitations required, as in the case of the proposed initial ballot, that column positions in the remaining three rows be altered, where necessary, to ensure that no candidate’s name appeared in more than one column.

We reject Mintz’ contention that this court’s decision in Matter of Cooke v Lomenzo (31 NY2d 244, supra) renders invalid the format of the second ballot, inasmuch as the drawing demanded by Rogowski produced a change in column positions in Row A, thereby effecting, because of voting machine limitations, a displacement of column positions in other rows prejudicial to candidates of parties other than the Democratic Party.

In Cooke, the candidate, who requested a drawing to determine column positions in Row B had been nominated by political parties assigned Rows B and C on the election ballot. Because of multiparty indorsements and voting machine limitations, any change in column positions in Row B as a result of the drawing would have necessarily effected a change in column positions in Row A. In contrast in the instant case, changes in column positions in Row A, brought about by the timely request for a draw, effected concomitant changes in Rows B, C and D due to voting machine limitations. In our view, this distinction is crucial.

Row A occupies a unique position on election ballots where candidates have received multiparty indorsements. It is the only row in which candidates’ column positions can in all instances be assigned by the board according to traditional policy: that is, in order of the candidates’ certification by a party’s nominating convention. After Row A is set, cross indorsements of Row A candidates by other parties are aligned in the same vertical columns. Next, Row B is established, to the extent possible considering cross indorsements, in the order certified or as determined by lot, if requested. The same procedure is followed with respect to Rows C and D. Thus, irrespective of whether column positions in Row A are assigned by order of certification or by lot, column positions in rows beneath Row A remain, where necessary, dependent upon positions assigned to candidates in Row A. The same cannot be said, however, for any other row; column positions in Row A can never be dictated by column positions in lower rows, whether such positions are assigned by order of certification or by lot.

It was for this reason that the candidate in Cooke was precluded from having his column position in Row B determined by lot, inasmuch as any change in his column position in that row would have, because of voting machine limitations, necessitated a change in column positions of certain candidates in Row A to ensure that no candidate’s name appeared in more than one column. Any such change would have impaired the right of candidates of the party assigned Row A to have their column positions determined either by traditional policy or by lot unaffected by voting machine limitations — a right which, although provided by statute to all candidates (Election Law, § 7-116, subd 1), takes on an absolute character, practically speaking, only for the party which polled the largest number of votes for its gubernatorial candidate in the last preceding election for that office. The same cannot be said in the present case.

Candidate Mintz, as well as the other candidates in Rows B, C and D, had no absolute right to have their column positions in those rows determined in order of their certification. That right, dependent as it was upon column positions assigned to candidates in Row A and voting machine limitations, remained dependent upon those factors when column positions in Row A were assigned by lot upon a timely demand of Rogowski. Inasmuch as the column positions in Rows B and D assigned to Mintz were subject to the column positions assigned to candidates in Row A, irrespective of how that assignment was accomplished, it makes little sense to preclude a candidate in Row A from exercising a statutorily granted, and otherwise unqualified, right to have his column position in that row determined by lot.

Accordingly, the order of the Appellate Division should be reversed, and the judgment of the Supreme Court reinstated, without costs.

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

Order reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated.


text:
    H. C. Williams Co., Inc., Respondent, v Town of Southampton, Appellant.
    Submitted September 22, 1978;
    decided October 26, 1978

      APPEARANCES OF COUNSEL

      Emil F. De Petris and Richard E. De Petris for appellant.

      Tooker, Tooker & Esseks for respondent, precluded.
   OPINION OF THE COURT

Order reversed, with costs, and judgment granted to defendant in accordance with the Court of Appeals opinion in Suffolk Outdoor Adv. Co. v Hulse (43 NY2d 483). Question certified answered in the negative.

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


text:
    Lester Gerr et al., Appellants, v William Weissberg, Respondent, et al., Defendant.
    Submitted October 10, 1978;
    decided October 26,1978
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Claim of Herman Henin, Appellant, v Merit Investors Corporation et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted October 2, 1978;
    decided October 26,1978
   Motion for leave to appeal from the order of the Appellate Division dated April 26, 1978 dismissed upon the grounds that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    In the Matter of Winthrop Drake Thies, an Attorney and Counselor of Law, Appellant. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Decided October 26, 1978
   The Court of Appeals, sua sponte, requests the return of remittitur and, when returned, it will be amended by adding thereto the following: "Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: Appellant contended that mandatory disbarment pursuant to section 90 of the New York State Judiciary Law, based on conviction of a felony in another jurisdiction for acts which would not constitute a felony in New York State, was a deprivation of equal protection of the laws and of due process of law in violation of the Fourteenth Amendment and was cruelty in violation of the Eighth Amendment. The Court of Appeals considered these contentions and held that appellant was not deprived of his constitutional rights.” [See 45 NY2d 865.]


text:
    In the Matter of Robert Cantrell et al., Respondents, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, Appellants.
    Argued October 26,1978;
    decided October 27, 1978

      APPEARANCES OF COUNSEL

      Samuel S. Yasgur, County Attorney (Jonathan Lovett, Thomas P. O’Callaghan, Kenneth E. Powell and Lester D. Steinman of counsel), for appellants. '

      B. Anthony Morosco for respondents.
   OPINION OF THE COURT

Per Curiam.

Petitioners seek to contest the constitutionality of Local Law No. 11 of the 1978 Westchester County Local Laws. Since this local law will not become effective unless approved by the voters of Westchester County in the November, 1978 elections, petitioners have chosen to mount their constitutional challenge within the procedural framework of this article 78 proceeding seeking to prevent the board of elections from placing the local law upon the ballot. Special Term dismissed the petition, declaring that the proceeding was premature. The Appellate Division reversed, impliedly finding that the proceeding was not premature and explicitly concluding that the local law was unconstitutional. While we agree that the proceeding was not commenced prematurely, we decline to comment upon the validity of the local law since we conclude that the proceeding is barred by application of the doctrine of laches.

Special Term determined that the proceeding was premature on the authority of our decision in New York Public Interest Research Group v Carey (42 NY2d 527). Such reliance was misplaced, for the majority opinion in that case was premised on the fact that no relief was requested by the plaintiffs which could have any effect whatsoever unless and until the electorate were to approve the challenged law. Thus, we specifically noted in that case that the plaintiffs had abandoned their request to remove the challenged law from the ballot, and distinguished those cases in which such relief was requested (New York Public Interest Research Group v Carey, supra, pp 531-532). Where, as here, the relief requested is the preclusion from the ballot of a proposal sought to be placed before the voters, the proceeding is not rendered premature by the fact that unless approved the challenged law would not become effective, for the requested relief is not dependent upon the result of the election and would instead have an immediate effect.

Nonetheless, this petition must be dismissed. This is so because of the unnecessary and untoward delay in the commencement of this proceeding. The challenged local law involves the abolition of the Westchester County Parkway Police and the elected office of Sheriff, and their replacement with a new Westchester County Department of Public Safety to be headed by an appointed official. The proposal is a complex one, and was the subject of considerable debate and study for some time prior to its approval by the county legislature. Thus, petitioners were well aware of the proposal, and indeed were actually represented by counsel at the public hearing prior to its adoption by the county legislature. The local law was adopted by the legislature on July 17, 1978, and it was approved by the County Executive on July 28. Despite all this, it was not until October 5, a scant month prior to the election, that petitioners commenced this proceeding in which they raise numerous issues of considerable intricacy and potentially great public importance.

Under these circumstances, petitioners have simply delayed too long in commencing this proceeding. Rather than acting with due diligence, they allowed more than two months to elapse before commencing this proceeding. The delay imposed a well nigh impossible burden upon respondents, since they were forced to attempt to formulate a defense to a variety of complex challenges within a matter of days. To condone the attempted resolution of these issues in such an unnecessarily precipitous manner would be to do a great disservice to the residents of Westchester County whose interests are most deeply implicated in this proceeding. In light of all this, we conclude that this proceeding is barred by laches (see New York Public Interest Research Group v Carey, 42 NY2d 527, 535, supra, dissent by Jones, J.).

We would note that were this proceeding the only means of challenging an allegedly unconstitutional provision, a different result might well be mandated by extreme necessity. As it is, however, no such problem exists. The challenged local law will not go into effect until some time after the election, if indeed it is approved by the voters, and thus there will be ample opportunity for petitioners to challenge its validity in a more appropriate manner should they be so advised. We need hardly add that in light of our disposition of this matter, the present proceeding will in no way serve to bar such a subsequent action on the issues raisable therein.

Accordingly, the order appealed from should be reversed, without costs, and the matter remitted to Supreme Court, Westchester County, with instructions to dismiss the petition in accord with this opinion.

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

Order reversed, etc.


text:
    Myron Mayer et al., Respondents-Appellants, v City Rent Agency et al., Appellants-Respondents, et al., Defendant, and Coalition Against Rent Increase Pass-Alongs (CARIP) et al., Intervenors-Appellants.
    Submitted October 23,1978;
    decided October 27, 1978

      APPEARANCES OF COUNSEL

      Robert S. Fougner and Gary M. Rosenberg for respondents-appellants.

      Harry Michelson and Stephen H. Deutschmeister for appellants-respondents.

      Robert Sugerman and Richard N. Gottfried for intervenorsappellants.
   OPINION OF THE COURT

Motion by plaintiffs landlords for reargument of motion for leave to appeal granted and, upon reargument, leave to appeal granted.

Motion by City Rent Agency for leave to appeal granted. On the court’s own motion, leave to appeal granted to the City of New York.

Motion by intervenors tenants and tenants’ coalition for reargument of motion for leave to appeal granted and, on reargument, leave to appeal granted.

Motion by plaintiffs landlords for amendment of this court’s order of September 14, 1978, denied as unnecessary inasmuch as the provisions of that order, including the directions authorizing collection of rent increases subject to escrow deposits, continue in full force and effect pending determination of the appeals as hereinafter enlarged. [See 45 NY2d 822.]

Motion by plaintiffs landlords to add to any appeal the new issue as to validity of the October 12, 1978 approval of Local Law No. 76 of 1977 of the City of New York by the State Commissioner of Housing and Community Renewal granted to the extent that the parties be advised that on the argument of the appeals the court will consider the validity of the October 12, 1978 approval of Local Law No. 76 of 1977 of the City of New York by the State Commissioner of Housing and Community Renewal, as well as the propriety and desirability of the court’s determining that issue on such appeals.

On the court’s own motion, pursuant to CPLR 1003 the State Commissioner of Housing and Community Renewal is joined to the appeals herein as defendant-respondent; plaintiffs-appellants Myron Mayer and others directed with reasonable dispatch to serve on the State Commissioner of Housing and Community Renewal by personal service a copy of the order of this court entered on this motion, three copies of the record on the appeals (which shall be deemed to be service of all pleadings in the action), and three copies of all briefs submitted in the appeals.

Appeals set down for argument on November 29, 1978, appellants’ briefs to be served and filed on or before November 7 and respondents’ on or before November 17, 1978.


text:
    In the Matter of William E. Lewis, as President of the Suffolk Chapter, Civil Service Employees Association, Inc., et al., Respondents, v John V. N. Klein et al., Appellants.
    Submitted October 27, 1978;
    decided October 30, 1978

      APPEARANCES OF COUNSEL

      Howard E. Pachman, County Attorney (Anton J. Borovina, Jane E. Conway, Erick F. Larsen and Leonard J. Shore of counsel), for appellants.

      Lester B. Lipkind for respondents.
   OPINION OF THE COURT

Per Curiam.

The Suffolk County Charter provides: "No proposed local law may be enacted unless it is the subject of a public hearing by the county legislature or one of its duly constituted committees. Such a public hearing shall be held on public notice, the form and time of which shall be prescribed by local law” (Suffolk County Charter, § 220, subd [b]). No public notice on the part of the local legislature is required by the Municipal Home Rule Law when a certificate of necessity is issued by an elected County Executive and the measure is passed by two-thirds vote (Municipal Home Rule Law, § 20, subd 4; but cf. subd 5). Thus, the county charter, in mandating public notice and hearing before any local law is enacted by the local legislature, goes beyond the requirements of the statute, but, undoubtedly anticipating the potential difficulties in providing for hearings on measures certified by the elected County Executive to be of an emergency character, leaves the details to be "prescribed by local law”.

It is notable that a public hearing is required under the Municipal Home Rule Law before approval of a local law by an elected County Executive (§ 20, subd 5). It is undisputed that there was compliance with that requirement in this instance. Indeed, petitioner appeared and spoke on that occasion.

The challenged local law, enacted years before the instant litigation, provided, it is true, very limited notice of the legislative public hearing in the case of certified emergency matters (Local Laws, 1970, No. 1 of Suffolk County, § 2; the local law is attached as an appendix to this opinion). But that was contemplated in the charter. Were more extensive notice to be required, the charter provision permitting immediate passage of measures accompanied by a certificate of necessity, a provision which echoes the Municipal Home Rule Law, would be of no effect (Suffolk County Charter, § 220, subd [a]; Municipal Home Rule Law, § 20, subd 4). Possible paralysis of local government which might result could hardly have been intended by the drafters of the county charter.

Moreover, the local legislature, as it had the right to do, may have provided for a one-hour notice provision, brief as it is, on the view that it had some limited value. Those who by personal presence choose to follow the local legislature are thereby given perhaps some assurance that no legislation would be enacted without at least posting of advance notice on the County Center bulletin board. While this may be of little or no avail to the public in general, it does provide some access to those of the public, be they press, opponents of particular legislation, or legislature-watchers of other kinds, who might be most interested in the emergency legislation of which they have had intimations, as here, from the prior proposals, public hearings, and debates conducted thereon. They, at least, might learn of the public hearing in time to present opposing, or even supporting viewpoints. (See Matter of D'Addario v McNab, 32 NY2d 84, 87.)

In disposing of this appeal the court passes on no issue not raised in the briefs presented to it and is concerned exclusively with issues raised and determined in the courts below addressed to the procedures the local legislature used in placing the proposition on the ballot. Any other issues which may affect the validity of the proposed legislation, if it is approved in the referendum, may, of course, be questioned in a future proceeding brought by any party with standing if so advised.

Courts should be most reluctant to question certifications of necessity in the general legislative process. Similarly, courts are reluctant to question the internal procedures in the general lawmaking process, State or local (see Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Comm., 30 NY2d 207, 219-220, mot to amd remittitur granted 30 NY2d 946; cf. Blanshard v City of New York, 262 NY 5, 13). In support of that reluctance, the right of the electorate to determine the questions at issue after an airing in the campaign is a weighty factor (cf. Matter of D'Addario v McNab, 32 NY2d 84, 88-89, supra). Moreover, since the proposed amendment to the county charter, if adopted, would only permit further amendment by initiative, amendment subject to further public hearings and referendums, the peril of insufficient general public notice and hearing prior to adoption solely for inclusion on the ballot is relatively slight.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

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

Order reversed, etc.

APPENDIX

Local Law No. 1-1970

A LOCAL LAW PRESCRIBING THE FORM OF NOTICE AND TIME FOR HOLDING PUBLIC HEARINGS ON LOCAL LAWS BY THE COUNTY LEGISLATURE

Section 1. Legislative finding and determination. Section two hundred twenty of the Suffolk County Charter provides that in addition to the public hearing on local laws which must be conducted by the County Executive, such a hearing on proposed local laws shall be held by the County Legislature or one of its committees. Such section also provides the form of notice of the public hearings and the time for holding them shall be prescribed by local law. Inasmuch as only one legislative hearing on a local law is required even though the law may thereafter be amended, and since the County Executive holds a public hearing on all local laws in their final form, with notice thereof given by publication in the official newspapers, it is found that a different type of notice can be given in cases of emergency legislation than is given in other instances. It is further found that the legislative hearing can in most cases adequately be considered by committees and such hearings would expedite the legislative process and still afford time for ample deliberation. Accordingly, it is determined that depending on whether the legislative hearing is under emergency procedures or to be considered routinely by the whole legislature or referred to committee, different types of notice are proper. Provision for them is made by this local law.

Section 2. Legislative hearing in the case of emergency matters; form and time of notice. Whenever the County Executive certifies the necessity of the immediate passage of a local law, notice of the legislative public hearing shall be made forthwith by public announcement that such hearing will be held at a specified time not less than one hour later, at such place as the legislature is then sitting, and by the posting forthwith on a bulletin board which shall be maintained by the clerk of the legislature of a copy of such proposed local law and a notice of the time and place of the hearing.

Section 3. Legislative hearing in routine cases by entire legislature; form and time of notice. Whenever a local law is introduced and it is determined that the entire county legislature will hold a public hearing thereon, notice thereof shall be given by posting on the bulletin board of the clerk of the legislature and by publication in the official county papers. Such notice shall state the time when and the place where the legislature shall convene for such hearing which normally will be at the next regularly scheduled meeting. In any event the posting and publication shall be not less than three nor more than fifteen days before the date of the hearing. In the case of the bulletin board notice, a copy of the proposed local law shall be attached; in the case of the published notice, a synopsis shall be provided.

Section 4. Legislative hearing by committee; form and time of notice. Whenever a local law is introduced and thereafter referred to a committee to hold a public legislative hearing and report thereon the time and place of the hearing shall be determined by the committee or the chairman thereof and notice shall be given by posting such time and place, together with a copy of the proposed local law, on the bulletin board of the clerk of the legislature. Such notice shall be posted not less than three nor more than fifteen days before the date of the hearing.


text:
    The People of the State of New York, Respondent, v Francisco Castro, Appellant.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      Irving Engel for appellant.

      Eugene Gold, District Attorney (Salvatore Russo and David Harrigan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed. Because of the structural simplicity of the case, it was tried by counsel for both sides without the usual elaboration. Nevertheless, the only real issue was one of identity, and that turns on credibility of the witnesses — the victim, the defendant, and, on the posttrial hearing, the owner of the driving school where, according to the victim, defendant had been employed. The record on the main trial fully supports the Trial Judge’s findings. Moreover, the testimony upon the posttrial hearing, held at defendant’s request, failed to undermine the victim’s testimony concerning defendant’s employment. Being legally sufficient and having been affirmed, the findings are beyond review in this court.

Despite defense trial counsel’s protestations of his blunders, their effect, if blunders they were, was nullified by the post-trial hearing and the opportunity to produce any additional witnesses. Overall, there was no inadequacy of counsel to merit overturning the determination made (cf. People v Droz, 39 NY2d 457, 462-463).

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

Order affirmed in a memorandum.


text:
    In the Matter of Kevin L. Barkley, Respondent, v Susan C. Barkley, Appellant.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      George Abdella and Ernest Abdella for appellant.

      Carroll J. Mealey and L. Foster James, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, on the memorandum at the Appellate Division (60 AD2d 954) to the extent that it was concerned with the question of law presented.

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


text:
    In the Matter of Bernelle P. (Anonymous). Nassau County Department of Social Services, Respondent; Fannie B. (Anonymous), Appellant.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      Carl Jay Nathanson, Leonard S. Clark and Richard Gabrielle for appellant.

      Edward G. McCabe, County Attorney (Matthew A. Tedone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs. Contrary to appellant’s contentions, examination of the record of the fact-finding hearing and the findings of fact made pursuant to that hearing fails to indicate any reliance upon the statements made by the child at the in camera discussion with the court during the earlier emergency removal hearing. Accordingly, this appeal presents no issue as to the propriety of the use of such statements at the fact-finding hearing.

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

Order affirmed.


author: Wachtler, J.

text:
    Angelo Di Filippi et al., Respondents, v Equitable Life Assurance Society of the United States, Appellant.
    Argued September 14, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      Michael W. Brody, Werner Weinstock and Edward A. Marrón for appellant.

      John V. Salierno for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and judgment granted in favor of defendant on the dissenting opinion by Mr. Justice Joseph F. Hawkins at the Appellate Division (61 AD2d, at pp 172-175).

Concur: Chief Judge Breitel and Judges Jasen, Jones and Cooke. Judge Wachtler dissents and votes to affirm in the following opinion in which Judges Gabrielli and Fuchsberg concur.

Wachtler, J.

(dissenting). I cannot agree with the majority that a material misrepresentation has been established here as a matter of law. A misrepresentation is material only if "knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract” (Insurance Law, § 149, subd 2). The majority would have us believe that the only reasonable view of the evidence dictates that the misrepresentation was material.

The evidence, however, as noted by Mr. Justice Suozzi, was not conclusive on this critical issue. The treating physician testified that decedent visited him on four occasions after discharge from the hospital, but prior to submission of the insurance application. Based on the results of these examinations, the physician concluded that the cause of the obstruction was a kidney stone which had passed.

Defendant, however, failed to prove that knowledge of this condition would have led to a refusal to enter into the insurance contract. In fact, when Dr. Wood, defendant’s expert witness, was asked if he could produce any applications for life insurance rejected because of kidney stones, he could not. It therefore cannot be concluded that a material misrepresentation was established as a matter of law (Langer v Metropolitan Life Ins. Co., 290 NY 601, revg 264 App Div 901). The question was rather one of fact for the jury, which it reasonably resolved in favor of plaintiffs. That factual determination, having been affirmed at the Appellate Division, is nonreviewable (NY Const, art VI, § 3, subd a).

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Larry Hinton, Appellant.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      Martin Gedulgig for appellant.

      John J. Santucci, District Attorney (Joan L. Craig of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, conviction and plea vacated, motion to suppress granted and case remitted to Supreme Court, Queens County, for further proceedings on the indictment on the dissenting memorandum by Mr. Justice Vincent D. Damiani at the Appellate Division (55 AD2d, at p 657; see, also, People v Grant, 45 NY2d 366; People v Buxton, 44 NY2d 33).

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


text:
    In the Matter of the Claim of Gloria Glaze, Respondent, v Villa Manufacturing Company et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      James C. Moore for appellants.

      Lester H. Rappaport for respondent.
   OPINION OF THE COURT

Memorandum.

On the record in this case, the issue of whether decedent was an independent contractor at the time of his death was a question of fact within the sole competence of the board to resolve.

Specifically, the requirement of the substantial evidence rule was met here, among other facts, by the appellant’s field supervisor’s testimony that he attempted no control of decedent’s work or hours, but merely checked on the quality of the work that had been commissioned; by introduction of the bill submitted by decedent for the work he had done and for which he had accepted payment in the form of a nonpayroll check without payroll deductions; and by proof that for some years before decedent’s death the appellant had operated its business under a reordered method by which it referred all kitchen cabinet installations to subcontractors. While there was other proof from which contrary inferences might be drawn, whether to credit them rather than those it chose to accept was for the board to determine.

It follows that the decision appealed from and the order of the Appellate Division, brought up pursuant to CPLR 5601 (subd [d]), should be reversed and the original decision of the Workers’ Compensation Board reinstated, with costs.

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

Decision appealed from and order of the Appellate Division brought up for review reversed, with costs, and the original decision of the Workers’ Compensation Board disallowing the claim reinstated in a memorandum.


text:
    Helen Connell, Appellant, v St. Mary’s Hospital of Troy, Defendant, and Aetna Life Insurance Company, Respondent.
    Argued September 22, 1978;
    decided October 31, 1978

      APPEARANCES OF COUNSEL

      William M. Burke for appellant.

      William P. Soronen, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

In support of its cross motion for summary judgment, defendant Aetna Life Insurance Company came forward with evidence establishing that plaintiffs coverage under the group insurance policy automatically terminated prior to the onset of her disability. It then became incumbent upon plaintiff to demonstrate, by affidavit or other available proof, the existence of a triable issue of fact as to whether she fell within a class of employees selected by the hospital as eligible for coverage (e.g., Kuehne & Nagel v Baiden, 36 NY2d 539, 543-544; Indig v Finkelstein, 23 NY2d 728, 729). Having failed to do so, plaintiff must suffer the consequences of summary judgment.

We decline to attribute any significance to defendant St. Mary’s inadvertent payment of premiums on the policy for some months after coverage had terminated. Unrefuted evidence indicates that the payments were made as a result of administrative or clerical oversight which, under the terms of the policy, had no bearing upon termination of the insurance.

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

Order affirmed.


text:
    Marvin S. Belsky, Appellant, v Ilona Lowenthal et al., Respondents.
    Submitted September 5, 1978;
    decided October 31, 1978
   Motion for leave to appeal denied upon the ground an appeal lies as of right (CPLR 5601, subd [a], par [iii]; see Levine v Shell Oil Co., 27 NY2d 797).


text:
    Mary Blake, Respondent-Appellant, v City of Albany, Appellant-Respondent. (And Three Other Actions.)
    Submitted October 2, 1978;
    decided October 31, 1978
   Motions to dismiss the appeal taken by defendant city denied.


text:
    Joan Shaifer, Respondent, v Norman Shaifer, Appellant.
    Submitted September 11, 1978;
    decided October 31, 1978
   Motion to dismiss appeal granted as to that portion of the Appellate Division order which remitted the matter for a trial of the foreclosure issue, without costs, upon the ground that such portion of the order appealed from does not finally determine the action within the meaning of the Constitution. Motion to dismiss appeal denied as to that portion of the Appellate Division order which declared that plaintiff is not required to accept substitute collateral and severed that action (see Cohen and Karger, Powers of the New York Court of Appeals, § 21, p 91).


author: Cooke, J.

text:
    In the Matter of Orange County Publications, Division of Ottaway Newspapers, Inc., Respondent, v Council of the City of Newburgh et al., Appellants.
    Argued September 11, 1978;
    decided November 2, 1978

      APPEARANCES OF COUNSEL

      David F. Jordan, Corporation Counsel (William M. Kavanaugh of counsel), for appellants.

      Rodney A. Richards for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division to the extent appealed from affirmed, without costs, on so much of the opinion of Mr. Justice Samuel Rabin at the Appellate Division relevant to the application of article 7 of the Public Officers Law to meetings of the City Council of the City of Newburgh (sée 60 AD2d 409, 411-417). The purpose and intention of the State Legislature in the present context are interpreted as expressed in the language of the statute and its preamble. It is neither appropriate nor necessary to suggest agreement with the legislative policy or to indorse it, a matter exclusively for the Legislature in applying its views to the legislative and executive branches of government.

The fact of the matter is that neither public nor private meetings of governmental bodies are inherently desirable or undesirable. Whichever kind of meeting is permitted or required, there are, as developed in the arguments by the parties to this proceeding, off-setting losses and gains. The evaluation and balancing of the factors are ultimately, within the framework of the present statute and the issues as presented, for the State Legislature and not the courts. Indeed, the legislative reaction to the problems engendered by an "open meetings law” is illustrated to some extent by the existing exemptions permitting the holding of executive sessions (Public Officers Law, § 100).

Cooke, J.

(concurring). I, too, vote for affirmance. In view of the definite and broad public policy expressed by the Legislature (Public Officers Law, § 95), I concur on the opinion of Mr. Justice Samuel Rabin at the Appellate Division.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Cooke concurs in a concurring memorandum.

Order affirmed, without costs.


author: Fuchsberg, J.

text:
    Joseph Ventricelli, Appellant-Respondent, v Kinney System Rent A Car, Inc., et al., Respondents-Appellants, and Antonio Maldonado, Respondent. Kinney System Rent A Car, Inc., et al., Third-Party Respondents-Appellants, v American Motors Corp. et al., Third-Party Respondents.
    Argued September 14, 1978;
    decided November 2, 1978

      APPEARANCES OF COUNSEL

      Joseph Kelner and Gilbert S. Glotzer for appellant-respondent.

      William F. McNulty and Anthony J. McNulty for respondents-appellants.

      Michael F. Close and John J. Moore for respondent.

      Joseph D. Ahearn for third-party respondents.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, with costs. Proximate cause and foreseeability are relative terms, "nothing more than a convenient formula for disposing of the case” (Prosser, Law of Torts [4th ed], § 43, p 267). In writing of the "orbit of the duty”, Chief Judge Cakdozo said "[t]he range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345). So it is with proximate cause and foreseeability (compare Sheehan v City of New York, 40 NY2d 496, 502-503, and Rivera v City of New York, 11 NY2d 856, with Pagan v Goldberger, 51 AD2d 508, 511-512).

Although the negligence of the automobile renter, defendant Kinney, is manifest, and was, of course, a "cause” of the accident, it was not the proximate cause. "What we do mean by the word 'proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 352, supra [Andrews, J., dissenting]). The immediately effective cause of plaintiff’s injuries was the negligence of Maldonado, the driver of the second car, in striking plaintiff while he was standing behind his parked automobile. That Kinney’s negligence in providing an automobile with a defective trunk lid would result in plaintiff’s repeated attempts to close the lid was reasonably foreseeable. Not "foreseeable”, however, was the collision between vehicles both parked a brief interval before the accident. Plaintiff was standing in a relatively "safe” place, a parking space, not in an actively traveled lane. He might well have been there independent of any negligence of Kinney, as, for example, if he were loading or unloading the trunk. Under these circumstances, to hold the accident a foreseeable consequence of Kinney’s negligence is to stretch the concept of foreseeability beyond acceptable limits (see Prosser, Law of Torts [4th ed], pp 267-270; Restatement, Torts 2d, § 435, subd 2).

Fuchsberg, J.

(dissenting). When Dean Prosser suggested that proximate cause may at times seem to be "nothing more than a convenient formula for disposing of the case”, he also observed that the existence of proximate cause must " 'be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent’ ” (Prosser, Law of Torts [4th ed], § 42, pp 267, 249).

The generality of both these statements recognizes that torts is a branch of the law in which the decisional process is usually so dependent on the vagaries of particular facts in individual cases that it calls for a high degree of flexibility in judgment (see Pound, Introduction to the Philosophy of Law, 139). Thus, disputes as to whether conduct is negligent, contributorily - negligent or the proximate cause of an injury are usually best left to the fact finder. Since the record here convinces me that this case falls well within the range of these cautions, I believe the Trial Judge did not err as a matter of law in leaving the issue of proximate cause to the jury.

Ample was the proof that, to the knowledge of the rental company, the trunk door on the automobile it furnished to the plaintiff had a penchant for flying open so as to obstruct the operator’s view while the vehicle was moving. Given those facts, it was not only foreseeable, but a most reasonable rather than a remote expectation, that a driver confronted by such an emergency would alight and promptly proceed to the rear of the car to attempt to secure the lid manually so that he might continue on his way without further danger to others and himself. The seemingly ineluctable consequence was to expose the driver to the danger of being struck by another vehicle while he was positioned behind the trunk. On these facts, it could readily be found, as the jury apparently did here, that the choice between the alternatives — the danger from the obstruction of the driver’s view from the vehicle and the danger of being struck while engaged in the act of removing the danger — was thrust on the plaintiff by Kinney’s negligence. Of course, whether in making the choice he did plaintiff himself was negligent similarly raised a factual issue within the province of the jury.

To be sure, at other times and for other reasons, the plaintiff may have had occasion to undergo similar risks while in a roadway on foot, but the fact remains that defendant’s conduct increased the occasions for such risks: specifically, the one on which plaintiff was injured would not have transpired. To paraphrase what Judge (later Chief Judge) Crane said for a unanimous court in O’Neill v City of Port Jervis (253 NY 423, 431-432 [the defendant’s obstruction of a sidewalk had led a pedestrian to enter the roadway]), if the defendant "had been there and forced [Ventricelli] into the wheels of traffic, no doubt would exist in the minds of any one as to liability for consequences. Is the conclusion any different because necessity, and not force, is the moving cause? [Kinney] created the necessity which led to danger. * * * The accident would not have happened but for the [defective trunk lid].”

Moreover, I perceive no sufficient reason to depart from these principles because the plaintiff, before exiting from the car to make the trunk adjustment, thought it preferable to park the car at an available spot in the curb lane instead of the middle lane of the block of New York City’s busy and narrow Pell Street, where he found himself when the trunk suddenly sprung open. In either case, he was where he could be expected to be — in the roadway with his attention diverted by the trunk on which he was working. Those who drive along a curb lane or pull in or out of one for the purpose of parking are not necessarily more careful or more observant than those to be found in an inner lane. In any event, being at most but a quantitative factor which did not detract from the qualitative risk, it was peculiarly one for consideration by the jury under all the circumstances and not a basis for determination as a matter of law.

All this is not to say that the jury had to find that there was a reasonable likelihood of danger resulting from the act of which plaintiff complains. It could have found that there was not. But, by its verdict it did in effect find that the accident that caused the plaintiff to lose his leg was at least in part the "ordinary and natural result” of the defendant’s negligent act. And that it also had a right to do. (O’Neill v City of Port Jervis, supra, p 432.)

I therefore would vote to reverse the order of the Appellate Division and remit the case to it for the determination of any remaining questions.

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

Order affirmed in a memorandum, with costs to respondents-appellants Kinney against appellant-respondent Ventricelli and third-party respondents American.


text:
    In the Matter of Gannett Co., Inc., Respondent, v County of Monroe et al., Appellants.
    Argued September 11, 1978;
    decided November 2, 1978

      APPEARANCES OF COUNSEL

      John D. Boyle, Acting County Attorney, for appellants.

      Robert C. Bernius for respondents.
   OPINION OF THE COURT

Memorandum.

Order affirmed, without costs, on the opinion by Madam Justice M. Dolores Denman at the Appellate Division.

We note that in form this case reaches us on a motion to dismiss the petition under CPLR 7804 (subd [f]), and that no answer has yet been served by the county or its officers. Notwithstanding what might therefore be viewed as a procedural awkwardness, on argument before us counsel for all parties agreed that this should be disregarded and that we should proceed to dispose of the appeal on its substantive merits. Specifically, we have assumed, therefore, that the county could establish by competent proof that disclosure of the items sought by Gannett would result in personal or economic hardship to the terminated county employees within the meaning of section 88 (subd 3, par e) of the Public Officers Law. Such proof, in our view, would not alter the outcome because, as noted by Justice Denman, the exception in paragraph e is available only if there is both proof of such hardships and it is established that the records sought are not relevant or essential to the ordinary work of the agency or municipality. The latter branch of this conjunctive requirement cannot be met in this instance.

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

Order affirmed, without costs, in a memorandum.


text:
    Miller Manufacturing Company, Inc., Appellant, v Norman Zeiler, Respondent.
    Argued September 15, 1978;
    decided November 2, 1978

      APPEARANCES OF COUNSEL

      Bernard S. Meyer and Jeffrey G. Stark for appellant.

      Marc S. Krieg and Joseph S. Kaming for respondent.
   OPINION OF THE COURT

Per Curiam.

This appeal involves an attempt by defendant to use a prior dismissal "without prejudice” as the basis for a res judicata dismissal of plaintiffs complaint in the present action. The essential record facts are not in dispute. Plaintiffs predecessor-in-interest commenced an action against this defendant pleading five distinct but related causes of action. The first cause of action involved a claim by plaintiffs predecessor to an interest in another company in which defendant also claimed an interest. The other four causes of action concerned alleged breaches of a contract of employment between plaintiffs predecessor and defendant.

Following a nonjury trial, the court resolved the issues in the first cause of action in favor of defendant, but in the court’s written opinion no mention was made of the other four causes of action. Defendant then submitted a proposed judgment, awarding judgment to defendant on the first cause of action and dismissing the other four causes of action "on the merits”. Before signing the judgment, the court crossed out the words "on the merits” and replaced them with the phrase "without prejudice to the plaintiff proceeding as he may be advised”. Defendant neither moved to resettle, nor sought to appeal from that judgment insofar as the dismissal was without prejudice. Plaintiffs predecessor did appeal, but the Appellate Division affirmed (Main St. Fashions v Zeiler, 52 AD2d 778), and this court denied leave to appeal (39 NY2d 711).

Plaintiff then commenced the present action, based on the four causes of action which had been dismissed "without prejudice” in the prior action. Defendant moved to dismiss on the ground of res judicata, but Special Term denied that motion. On appeal, however, the Appellate Division reversed and ordered the complaint dismissed. In so holding, the Appellate Division erred.

It is, of course, axiomatic that a party seeking to assert res judicata or claim preclusion must show the existence of a prior judgment on the merits. In the instant case, defendant has clearly failed to meet that burden. Indeed, the judgment in the prior action itself belies defendant’s claim, for the act of the Judge in crossing out the words "on the merits” and replacing them with the language "without prejudice” surely indicates a refusal to rule upon the merits of those causes of action. Moreover, an examination of the record of the trial in the prior action shows that although evidence was submitted which might be construed as relating to all five causes of action, in fact the only issues squarely presented to the court for resolution in that action were those deemed dispositive of the first cause of action. Under these circumstances, it would be improper and unjust to prevent plaintiff from litigating his remaining claims.

We would note that our decision today is not to be taken as any indication whether the trial court in the first action could or should have disposed of remaining causes of action at that time, for that question is not before us. Defendant was free to move to resettle or to appeal the dismissal insofar as it was without prejudice. Having failed to do so at the proper time, he may not now do so, and is bound by that prior judgment. His present predicament is, in a sense, of his own doing, for if the prior judgment of dismissal should in fact have been on the merits, defendant should have clarified that matter at the time.

Finally, we would note that our decision today involves only the question whether the dismissal serves to bar plaintiff’s claims altogether. Our conclusion that it does not, in no way involves any determination as to the collateral estoppel or issue preclusion effect, if any, of the factual determinations made by the trial court in that prior action.

Accordingly, the order appealed from should be reversed, and the matter remitted to Supreme Court, New York County for further proceedings on the complaint, with costs to abide the event.

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

Order reversed, etc.


text:
    Created Gemstones, Inc., Appellant, v Union Carbide Corporation, Respondent.
    Submitted October 16, 1978;
    decided November 2, 1978
   Leave to appeal granted on appellant’s application was predicated on an implied severance of that portion of the order of the Appellate Division that affirmed the award of summary judgment in favor of defendant on its counterclaims and was necessarily limited to review of that portion of the order. Insofar as the order dismissed an appeal from the order of Supreme Court, entered November 10, 1977, denying a motion for reargument — incorrectly termed a motion for renewal — the Appellate Division’s disposition involves a question of discretion of the type not reviewable by the Court of Appeals. (Matter of Williams & Geiger v Edelman, Berger, Peters & Koshel, 39 NY2d 1034.) [See 45 NY2d 772.]


text:
    John Kraemer, Doing Business as F. L. Kraemer & Co., Respondent, v Quintino Tesciuba, Doing Business as Mutual Trade Enterprises Co., Appellant, and Alexander Veerman et al., Doing Business as Veerman International Co., Respondents.
    Submitted October 16, 1978;
    decided November 2, 1978
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the Court of Appeals does not have power to entertain the motion (NY Const, art VI, § 3, subd b, pars [6], [7]; CPLR 5602, subd [a], par 1).


text:
    Robert M. Krellman et al., Respondents, v Peter I. Livingston, Defendant, and Laitman, Mathews, Magidson & Rosen, Appellant.
    Decided November 2, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Robert T. Doherty, Appellant, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent.
    Submitted October 10, 1978;
    decided November 2, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Aristile W. Hawley et al., Appellants-Respondents, v Mario M. Cuomo, as Secretary of State of the State of New York, Respondent-Appellant.
    Submitted September 5, 1978;
    decided November 2, 1978
   Motion to dismiss cross appeal taken by respondent-appellant herein denied.


text:
    In the Matter of Amelio P. Marino et al., Respondents, v Allen M. Myers, as Justice of the Supreme Court of the State of New York, Appellant.
    Submitted September 25, 1978;
    decided November 2, 1978
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York ex rel. Robert Wildes, Appellant, v New York State Board of Parole et al., Respondents.
    Decided November 2, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not presently available to obey the mandate of the court in the event of an affirmance. (See People ex rel. Mallin v Kuh, 38 NY2d 982; People v Casiel, 33 NY2d 791; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).


text:
    San Juan Hotel Corporation, Appellant, v Bertram I. Greenberg, Respondent.
    Submitted October 16, 1978;
    decided November 2, 1978
   On the court’s own motion, appeal taken as of right dismissed upon the ground that it does not lie. (NY Const, art VI, § 3; CPLR 5601.)


text:
    Arthur G. Smith Appellant, v George Sarkisian et al., Respondents.
    Submitted October 23, 1978;
    decided November 2, 1978
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v Lloyd Winston G. (Anonymous), Appellant.
    Argued September 11, 1978;
    decided November 2, 1978

      APPEARANCES OF COUNSEL

      Paul McAloon, Howard N. Spiegler and William E. Heller-stein for appellant.

      John J. Santucci, District Attorney (Bruce E. Whitney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

In People v Coleman (43 NY2d 222) we held that an order directing a defendant to appear in a lineup was " 'sufficiently "judicial” in nature, not unlike arraignment or the issuance of an arrest warrant, so that a right to counsel exists at "critical stages” held after that order is issued’ ” (id., at p 225 quoting from People v Sugden, 35 NY2d 453, 461). Hence, appellant had the right to the presence of counsel at the lineup, the denial of which requires suppression of the identification made at that time.

Inasmuch as the error is of constitutional magnitude, a reversal and a new trial is required unless it can be said beyond a reasonable doubt that the error did not contribute to the conviction (People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 2310). The evidence here, as the People in fairness concede, was far short of the requisite standard.

However, although there was only one identifying witness and his testimony concerning the lineup must be suppressed, we do not dismiss the indictment. The trial court found that his original observations at the scene of the crime provided an untainted independent source for his in-court identification and there is no basis upon which to overturn that factual finding (see People v Ramos, 42 NY2d 834; People v Cobenais, 39 NY2d 968; People v Ballott, 20 NY2d 600).

Finally, it is not to be assumed, from the fact that our vote to reverse makes it unnecessary to determine whether the point has been preserved for review, that we find it was proper for the prosecution, in disregard of the trial court’s ruling, to cross-examine defendant on another pending charge primarily to suggest a propensity to commit the crime for which he was being tried (see People v Mayrant, 43 NY2d 236, 239; People v Sandoval, 34 NY2d 371, 377).

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

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

Order reversed, etc.

       While Coleman also recognized that a defendant could waive his right to counsel in his attorney’s absence, there is no evidence of such a waiver here and the People do not claim that appellant did so.


text:
    Timothy B. Kelly, Jr., Appellant, v State of New York, Respondent.
    (Claim No. 60060.)
    Argued October 18,1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Richard A. Kerner for appellant.

      Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Harry D. Goldman at the Appellate Division (57 AD2d 320). We do not reach the question as to whether the Appellate Division was correct in retroactively applying the amendment to the Court of Claims Act pertaining to late filings, inasmuch as the State has not appealed (see Fuoco v State of New York, 64 AD2d 1030).

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


text:
    In the Matter of the Board of Education of the City School District of the City of Oneida, Respondent, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued October 17, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      James H. Whitney, Robert D. Stone, Lawrence W. Reich and Norman H. Gross, for Ewald B. Nyquist, as Commissioner of Education, appellant.

      Gerard John De Wolf and Bernard F. Ashe for Mary Lou Durr, appellant.

      Robert F. McDermott for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and the determination of the commissioner reinstated on the dissenting opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (59 AD2d 79-81).

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


text:
    John N. Tsimis et al., Respondents, v Rudnick, Brett Wyckoff, Inc., et al., Defendants, and 79th Street East Owners Incorporated et al., Appellants.
    Argued October 24, 1978;
    decided November 28,1978

      APPEARANCES OF COUNSEL

      Joel A. Reiss for appellants.

      Marvin Moskowitz, Nicholas P. Christy and Karla Moskowitz for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 871) and material facts recited therein.

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


text:
    Gerald L. Lotto, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v Long Island Lighting Company, Respondent. Town of Islip, Intervenor-Appellant.
    Argued October 18,1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Gloria M. Rosenblum and Francis G. Caldeira for intervenor-appellant.

      Edward J. Walsh, Jr., Edward M. Barrett and William R. Humburg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division (58 AD2d 431).

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


text:
    City of Rome, Respondent, v Minica M. Vescio, Appellant.
    Argued October 19,1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Francis P. Valone for appellant.

      Thomas J. Spargo, Corporation Counsel (Charles R. Getty, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be reversed, with costs, to delete the modification of the judgment of Supreme Court made by the Appellate Division.

In this action between the City of Rome and Minica M. Vescio, Supreme Court determined that as between the parties title to the parcel of land in question was vested in Minica M. Vescio and granted incidental relief appropriate to that determination. The Appellate Division affirmed this conclusion. No appeal having been taken by the City of Rome from the order of the Appellate Division, the resolution of the controversy between the parties as to title has now become final.

The Appellate Division, however, apparently viewed Supreme Court’s determination as to the vesting of title in Minica M. Vescio as a declaration reaching beyond the bounds of the present litigation and possibly affecting third parties. Accordingly, because there appeared in the chain of title a deed under which that court considered that North East Urban Corporation, the grantee therein but a stranger to the present litigation, might claim an interest in the subject premises, the Appellate Division modified the judgment of Supreme Court to delete the facially absolute declaration of title in Minica M. Vescio.

From our examination it appears that the description in the deed to North East Urban does not include the present premises. In any event the determination in this litigation resolves no more than the title controversy between the City of Rome and Minica M. Vescio. Accordingly we perceive no reason for modification of the judgment of Supreme Court as directed by the Appellate Division and conclude that that modification should therefore be retracted.

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

Order insofar as appealed from reversed, with costs, and the second decretal paragraph of the judgment of Supreme Court, Oneida County, determining title reinstated in a memorandum.


text:
    In the Matter of the Claim of Harry Winslow, Appellant. Phillip Ross, as Industrial Commissioner, Respondent.
    Submitted October 20, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Harry Winslow, III, appellant pro se.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz, Murray Sylvester and Irving Jorrisch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is substantial evidence in the record to support the decision of the appeal board denying benefits which was affirmed at the Appellate Division. Nor did the failure of the employer’s plant manager to appear at the hearing in response to the direction in the hearing notice constitute a denial of due process to claimant. Claimant made no request for such appearance prior to or at the hearing.

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

Order affirmed.


text:
    In the Matter of the City of Rochester, Respondent, Relative to Acquiring Title to Real Property for Southeast Loop Urban Renewal Project in the City of Rochester. S. C. Toth, Inc., Appellant.
    Argued October 18, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Robert M. Schantz for appellant.

      Louis N. Kash, Corporation Counsel (Anthony M. Sortino of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 1020).

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


text:
    The People of the State of New York, Respondent, v Charles Fields, Appellant.
    Argued October 19, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      David W. McCarthy for appellant.

      Eugene Gold, District Attorney (Lionel René Saporta of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division reversed, and the indictments dismissed.

The order reversing the trial court’s dismissal of Indictment No. 2509 (heroin sale) for failure of the People to produce legally sufficient evidence must be reversed, as the People straightforwardly agree, because reprosecution on the indictment is barred by double jeopardy (see People v Key, 45 NY2d 111, 117; People v Brown, 40 NY2d 381, 393, cert den 433 US 913, mot for rearg den 42 NY2d 1015).

As to Indictment No. 2508 (cocaine possession), suppression of the contraband seized following defendant’s arrest is required. While the arrest in the hallway may have been proper, the ensuing search of the apartment was not (see People v Williams, 37 NY2d 206, 208). The police did not have to enter the subject apartment, and indeed did not, in order to arrest defendant and his cohorts. The arrests took place in the hallway outside the apartment, and, as the hearing court found in suppressing the contraband, "There was no evidence to suggest the presence of any other persons in the apartment to justify the search for the protection of the Police Officers against a hidden assailant.” The search cannot, therefore, be justified as incident to the arrest. Similarly, since the arrests took place in the hallway, and the narcotics were found in the kitchen, the "plain view” exception is not applicable.

Moreover, once the arrests were completed, there was no significant danger that any existing contraband would be destroyed. Important in this regard is that the police had no reason to believe contraband was in any particular place, if any remained in the apartment at all after the toilet flushings heard through the door before defendant and his companions emerged (compare People v Clements, 37 NY2d 675, esp pp 684-685, cert den 425 US 911). No general rummaging search without a warrant was permissible.

Since the contraband was properly suppressed, the indictment must be dismissed (CPL 450.50).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Angel Rivera, Appellant.
    Argued October 20, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Steven G. Eckhaus, Milton M. Rosenberg and Arthur M. Unterman for appellant.

      Mario Merola, District Attorney (Edward G. Spell and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (58 AD2d 147), except to note that the averments in the attorney’s affidavit are more properly admissible under the rule governing "informal judicial admissions” described in section 217 of Richardson on Evidence (10th ed) rather than the rule governing "formal judicial admissions” described by Richardson in section 216 of his treatise. Informal judicial admissions, as distinguished from formal judicial admissions, are not conclusive on the defendant in the litigation.

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


text:
    In the Matter of Irving Minkin, Appellant, v New York State Tax Commission, Respondent.
    Argued October 24, 1978;
    decided November 28, 1978

      APPEARANCES OF COUNSEL

      Arthur N. Read and Eugene G. Eisner for appellant.

      Louis J. Lefkowitz, Attorney-General (Francis V. Dow, Ruth Kessler Toch and Lawrence J. Logan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment of the Appellate Division affirmed, with costs. It is true that under the statute and regulations maintenance of an office or space solely for the display of merchandise or the maintenance of records shall not be deemed an office for the purpose of imposing the unincorporated business tax (Tax Law, § 703, subd [f]; 20 NYCRR 203.14). Nevertheless a key factor determining the power to impose the tax is the "principal’s” exercise of direction and control; that factor in the nature of things is generally a question of fact resolvable by the Tax Commission beyond review by the courts (20 NYCRR 203.14 [d] [1]; Matter of Liberman v Gallman, 41 NY2d 774, 778-779). The purported inconsistencies in the handling of appellant’s Social Security deductions, unemployment insurance status, voluntary retirement plan, and personal income taxes, while cogent factors to be considered by the Tax Commission, are not conclusive as a matter of law sufficient to undermine the commission’s determination.

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

Judgment affirmed.


text:
    Antonio Benanti, Appellant, v Salvatore Benanti, Respondent.
    Argued October 25,1978;
    decided November 28,1978

      APPEARANCES OF COUNSEL

      Ralph C. Lewis, Jr., and Alex. Wiltse, Jr., for appellant.

      Charles H. Schaefer for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, without costs. The record demonstrates that neither plaintiff father nor defendant, his son, made any conscious decision with regard to legal title to the property in question or its equitable ownership. Both delegated that responsibility to the lawyer, who straightforwardly testified that he explained to the father that the effect of the deed was to pass indefeasible title to the son in order to accomplish the father’s purpose. Under the circumstances relief by constructive trust is unwarranted (see, generally, Simonds v Simonds, 45 NY2d 233, 241-242; Sharp v Kosmalski, 40 NY2d 119, 121). Thus, amendment of the pleadings to conform to the proof would have served no purpose.

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

Order affirmed.