text:
    In the Matter of Civil Service Technical Guild, Local 375, DC 37, A.F.S.C.M.E., AFL-CIO, Respondent, v Arvid Anderson, as Chairman of the Board of Certification of the Office of Collective Bargaining of the City of New York, et al., Appellants.
    Argued October 12, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Burton C. Agata and Malcolm D. MacDonald for Arvid Anderson, as Chairman of the Board of Certification of the Office of Collective Bargaining of the City of New York and others, appellants.

      Allen G. Schwartz, Corporation Counsel (Leonard Koerner, Alfred Weinstein and Isaac Klepfish of counsel), for City of New York and others, appellants.

      Adam Ira Klein and Mark Steven Soroka for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the petition dismissed for reasons stated in the dissenting memorandúm by Justice Theodore R. Kupferman at the Appellate Division (79 AD2d 541, 542-545).

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

December 22, 1981

On the court’s own motion, the remittitur is recalled and when returned it will be amended to read as follows: Order reversed, with costs, and the petition dismissed for reasons stated in the dissenting memorandum by Justice Theodore R. Kupferman at the Appellate Division (79 AD2d 541, 542-545). Question certified answered in the negative.

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


source: Caselaw Access Project

license: Public Domain

text:
    Noreen Clemens, Appellant, v State of New York, Respondent.
    (Claim No. 60555.)
    Argued October 13, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      John J. Cavanaugh, Jr., for appellant.

      Robert Abrams, Attorney-General (Jeremiah Jochnowitz and Shirley Adelson Siegel of counsel), for respondent.
   opinion of the court

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (79 AD2d 772).

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


text:
    Vladimir Kosic, Respondent, v Marine Midland Bank, Defendant and Third-Party Plaintiff-Appellant. First National Bank, Third-Party Defendant-Appellant.
    Argued October 16, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Kenneth A. Payment and Donald S. Mazzullo for defendant and third-party plaintiff-appellant.

      Warren B. Rosenbaum for third-party defendant-appellant.

      Richard P. Vullo for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (76 AD2d 89).

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


text:
    Morris A. Hyman et al., Appellants, v Janet C. Hillelson et al., Respondents.
    Argued October 19, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Lydon F. Maider and Robert L. Maider for appellants.

      Ernest Abdella and George Abdella for respondents.
   OPINION OF THE COURT

Memorandum.

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

The factual context in which this case arises is set forth in the memorandum at the Appellate Division (79 AD2d 725). When in 1974 plaintiffs unsuccessfully brought an action against the present defendants (and others) asserting claims to ownership of the property in Fulton County, they then predicated their right to recovery on the equitable remedy of contract reformation. When they thereafter instituted the present action in 1979 asserting a right to a substantial portion of the same property they grounded their claim on the theory of adverse possession, expressly recited to have commenced in and continued since 1955. As the Appellate Division correctly noted, this theory of recovery with respect to this property against these defendants was available to plaintiffs when they brought their 1974 action. Accordingly, it is now barred under recognized principles of claim preclusion (Matter of Reilly v Reid, 45 NY2d 24; Restatement, Judgments 2d [Tent Draft No. 5, 1978], §§ 61, 61.1).

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

Order affirmed, with costs, in a memorandum.


text:
    Donald April, Plaintiff, v Sovereign Construction Co., Ltd., et al., Defendants. Sovereign Construction Co., Ltd., et al., Third-Party Plaintiffs-Respondents, v Wachtel, Dukauer and Fein, Inc., a Division of Warner Communications, Inc., Third-Party Defendant-Appellant.
    Argued October 12, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Richard Bakalor for third-party defendant-appellant.

      Michael Majewski, Joseph D. Ahearn and Frank E. Maher for third-party plaintiffs-respondents.
   OPINION OF THE COURT

Memorandum.

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

The indemnity clause provided in part that third-party defendant Wachtel, Dukauer and Fein, Inc. (Wachtel), the subcontractor, would assume responsibility and liability for any and all injuries to any person, including the subcontractor’s employees, for any damages “caused by or resulting from or arising out of any act or omission in connection with this Subcontract or the prosecution of work hereunder”. Under the subcontract, Wachtel was responsible not only for plumbing installations but also for providing plumbing materials and unloading and distributing them at the worksite. It is undisputed that plaintiff was injured while distributing plumbing materials.

Because the plaintiff, an employee of the subcontractor, was injured in the prosecution of the work under the subcontract, the indemnity provision became controlling with respect to the responsibility and liability for the injury.

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

Order affirmed, with costs, in a memorandum.


text:
    American Express Company, Respondent, v United States Lines, Inc., et al., Appellants, et al., Defendant.
    Argued October 14, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Peter J. Zambito for United States Lines, Inc., appellant.

      John L. Conners for Sullivan Security Services, Inc., appellant.

      Dennis M. Perlberg, Simon Greenhill and John M. Speyer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (76 AD2d 428). Question certified answered in the affirmative.

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


text:
    Michael S. Gruen, Appellant, v Charles Patterson et al., Respondents, et al., Defendants.
    Argued October 12, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Michael S. Gruen, appellant pro se.

      Myron Altschuler for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is undisputed that the apartment occupied by the tenant is governed by the Rent Stabilization Code, a set of regulations applicable to New York City alone (see La Guardia v Cavanaugh, 53 NY2d 67, 78). Section 50 of the code specifically provides: “No tenant, so long as he continues to pay the rent to which the owner is entitled, shall be denied a renewal lease as prescribed by this Code”. The only “prescription” on this subject is contained in section 54 of the code, which states that the landlord is exempt from its obligation to offer a renewal lease “only” in one of the following five circumstances: (a) the occupancy is by a proprietary lessee, (b) the owner or his immediate family seeks occupancy, (c) the tenant refuses to renew an existing lease, (d) the owner is withdrawing the premises from the rental market, or (e) the tenant’s occupancy is not as a primary residence. There are no others. Specifically, deliberate and repeated tardiness in rent paying, such as that in which the tenant in this case engaged, whatever the other remedies available to the landlord, is not one of the enumerated causes for denial of renewal set forth in the code, drafted though this special local legislation was by the Rent Stabilization Association, whose members, as real property owners, may be assumed to be aware of the provisions of the code (see La Guardia v Cavanaugh, supra).

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

Order affirmed, with costs, in a memorandum.


text:
    Marine Midland Bank, Respondent, v Edwin J. Stukey et al., Appellants.
    Argued October 13, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Waddie N. Kalil for appellants.

      David C. Grow for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (75 AD2d 713). So far as the stay of execution of the judgment pending disposition of the counterclaims is concerned, under all the circumstances, we cannot say that its grant by the Appellate Division was an abuse of discretion as a matter of law (see Chrysler Corp. v Fedders Corp., 51 NY2d 953, 955).

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


text:
    Interested Underwriters at Lloyds, as Subrogees of Seaman Furniture Co., Inc., Appellant, v Associated Ceilings Corp., Respondent.
    Submitted October 14, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Bernard Caesar and Paul Kovner for appellant.

      Carole R. Moskowitz and J. Robert Morris for respondent.
   OPINION OF THE COURT

Memorandum.

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

Our review of the scant record in this case fails to disclose prima facie proof that the defendant was in control of the damaged premises at the time the ceiling collapsed or that there was negligence in the performance of the work. Specifically, the only testimony on the latter score came from Ralph Bank, the plaintiff’s subrogor’s president, who, disclaiming any personal knowledge on the subject, could recite no more than a hearsay conversation with Irving Buller, the president of the defendant, in which the latter, who was deceased by the time of the trial, in turn was said to have told Bank that unnamed “people that were involved in the demolition”, presumably ones other than the defendant, had not been aware of the fact that a wall they were removing supported the ceiling. Moreover, notably, there was no proof that these actions were negligent. In addition, without proof of control, an essential predicate for the application of the doctrine of res ipsa loquitur was absent. Accordingly, the complaint was properly dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Allstate Insurance Company, Appellant, v George Gemmell et al., Respondents.
    Argued October 16, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Charles F. Brady and Benjamin Purvin for appellant.

      E. Richard Rimmels, Jr., for Insurance Company of North America, respondent.
   OPINION OF THE COURT

Memorandum.

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

In so many words, subdivision 1 of section 420 of the Vehicle and Traffic Law states that “[u]pon the transfer of ownership * * * of a motor vehicle * * * its registration shall expire; and the seller *** shall remove the number plates from the vehicle”. This language is unequivocal. .

In this case, on the uncontradicted proof, the sequence of events is as follows: On or about August 31, 1978, Primavara, the owner of the 1956 Chevrolet, arranged to have its liability carrier, INA, transfer his coverage from the Chevrolet to a Ford which he had newly purchased. This was accomplished before October 1, 1978, Primavara having obtained new plates for the Ford. It was only thereafter, on or about October 20, 1978, that he sold the Chevrolet to Bazylak, effecting the transfer of ownership by signing over the registration stub to the latter in return for the purchase price. Because of the age of the vehicle, no certificate of title was required (see Vehicle and Traffic Law, §2102, subd [a], par [10]).

The net result, as far as IN A was concerned, was that, at the time of the accident, December 10,1978, it still insured one car, though for months this had been the Ford and not the Chevrolet.

As to the failure to remove the Chevrolet’s plates, a subject on which there are no findings and the proof is uncertain, the statutory obligation to do so, as indicated, was placed on “the seller”, here Primavara, and not on his liability carrier. Concordantly, even if we assume that he did not remove the plates, though this might estop him from asserting that he in fact had divested himself of ownership, such a consequence should not be visited on his carrier (Phoenix Ins. Co. v Guthiel, 2 NY2d 584). All the more is this so when, as distinguished from Phoenix, where what was unsuccessfully sought to be imposed on the insurer was continuing imposition of coverage despite the transfer of a single vehicle from one car owner to another, in the present case, because the policy had been transferred from one vehicle to another vehicle, it would have been the imposition of coverage on two when the carrier never undertook more than one.

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

Order affirmed, with costs, etc.


text:
    The People of the State of New York, Respondent, v Jeanne McArdle, Appellant.
    Argued October 12, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      James H. Miller, III, and John F. Middlemiss, Jr., for appellant.

      Patrick Henry, District Attorney (Maureen S. Hoerger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division affirmed an order of the Suffolk County Court sentencing defendant to four months’ imprisonment for failure to pay her $16,000 fine. The County Court found, and the Appellate Division affirmed, that defendant had defrauded the welfare system of more than $8,000 and that she has an equity in her home and a separate vacant lot of $35,797.

The fine imposed was authorized by subdivision 5 of section 80.05 of the Penal Law and, in view of defendant’s equity in the property and the fact that a substantial part of the proceeds of the fraud were invested in the property, was not illegal. There is no constitutional infirmity in defendant’s imprisonment for failure to pay the fine, for her equity in the property establishes that she has the means to pay it though she has so far refused to do so (Tate v Short, 401 US 395, 400-401). For like reason CPL 420.10 (subd 4) does not entitle defendant to adjustment, reduction or revocation of the fine which she has the ability to pay. Nor does the homestead exemption of CPLR 5206 provide her any protection, for it exempts only from the satisfaction of a money judgment and has no application to a fine imposed by a criminal court.

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

Order affirmed in a memorandum.


text:
    Robert Gannon et al., Appellants, v New York Mutual Underwriters, Respondent.
    Argued October 16, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      J. Stanley Cohen for appellants.

      Seale W. Tuttle for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice T. Paul Kane at the Appellate Division (78 AD2d 399).

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


text:
    The People of the State of New York, Respondent, v Robert Ross, Appellant.
    Argued October 19, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Roger Bennet Adler for appellant.

      Denis Dillon, District Attorney (Judith R. Sternberg and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We cannot say that it was an abuse of discretion for the Trial Judge in the management of the trial to exclude from evidence on the issue of justification and defendant’s state of mind proof that the union local had been involved some 16 months before the incident here in issue in violence against strikebreakers (see People v Miller, 39 NY2d 543, 552-553).

We have considered the other issues raised by defendant and to the extent that they are preserved, we find them to be without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Edward Allegretti, Appellant, v Thomas A. Coughlin, III, as Acting Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted October 26, 1981;
    decided November 17, 1981
   Motion to vacate the Court of Appeals order of dismissal dated September 10, 1981 denied. [See 54 NY2d 829.] Motion for leave to appeal denied.


text:
    Lawrence Berler, Doing Business as Victoria Galleries, Appellant, v Barclays Bank of New York, Respondent.
    Submitted October 5, 1981;
    decided November 17, 1981
   Motion for leave to appeal dismissed upon the ground the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    Patricia E. Collins, as Administratrix of the Estate of George F. Collins, Deceased, Appellant, v City of New York, Respondent.
    Argued October 21, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Bernard D. Friedman and Florrie L. Wertheimer for appellant.

      Allen G. Schwartz, Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for a determination whether to allow plaintiff to file a corrected notice of claim pursuant to subdivision 6 of section 50-e of the General Municipal Law. (See Winbush v City of Mount Vernon, 306 NY 327.)

Plaintiff’s action for the wrongful death of her husband allegedly caused by the negligence of the defendant City of New York is not subject to the one-year and 90-day limitations period set forth in former subdivision 1 of section 50-i of the General Municipal Law. That statute only applies to actions against municipalities “for personal injury or damage to real or personal property” and, unlike the statutes involved in the principal cases relied upon by the Appellate Division (e.g., Public Authorities Law, § 1212; Town Law, §67), contains no express reference to claims for the “death” of a person. Contrary to defendant’s assertion, the term “personal injury” does not include within its scope actions for wrongful death. (General Construction Law, § 37-a.) Plaintiff’s claim against the defendant city is governed by the two-year limitations period for wrongful death actions found in EPTL 5-4.1, and, therefore, her action should not have been dismissed. (Accord Priebe v City of Canandaigua, 91 Misc 2d 1047; but cf. Hawkins v County of Oneida, 297 NY 393 [applying former County Law, §6].)

It should be noted that subdivision 1 of section 50-i of the General Municipal Law recently has been amended to provide specifically for the inclusion of a two-year limitations period in wrongful death actions against municipalities. (L 1981, ch 738, §2, eff Sept. 1, 1981.)

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

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


text:
    In the Matter of Thomas P. Juul, Appellant, v Board of Education of Hempstead School District No. 1 et al., Respondents.
    Argued October 20, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Daniel Galinson for appellant.

      Gilbert Henoch for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (76 AD2d 837).

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


text:
    350 Ocean Parkway Association, Respondent, v Lena Stein, Appellant. 350 Ocean Parkway Association, Respondent, v Sally Leonard, Appellant.
    Argued October 21, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Kent Karlsson for appellants.

      Stephen B. Gleich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of the Appellate Term reinstated, for the reasons stated in the memorandum opinión of the latter court. There is no sufficient basis in the record in this case, submitted pursuant to the provisions of CPLR 3222, to conclude that the reinstatement of the landlord to membership in the Rent Stabilization Association had retroactive effect.

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

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


text:
    Dion L. Bagnato, Respondent, v Allstate Insurance Company, Appellant.
    Decided November 19, 1981

      APPEARANCES OF COUNSEL

      James L. Pemberton for appellant.

      Michael R. Cuevas for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the opinion by Justice J. Clarence Herlihy at the Appellate Division (81 AD2d 217).

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


text:
    Margaret R. Stillman, Appellant, v John S. Stillman, Respondent.
    Argued October 21, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Irving Parker and Joseph N. Salomon for appellant.

      Jack. S. Hoffinger, David B. Bernfeld and Robert A. Goldschlag for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Arthur Markewich at the Appellate Division (80 AD2d 356).

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


text:
    In the Matter of the Estate of Dario Shindell, Deceased. Betty S. Hone, Respondent; Spencer Barefoot et al., Appellants.
    Argued October 22, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Monroe R. Sonnenborn, Frederick Lubcher and Louise S. Meller for Spencer Barefoot, appellant.

      Emilio Nunez and Pamela Anagnos Liapakis for Richard Kaufman, appellant.

      Michael E. Schoeman and Beth L. Kaufman for respondent.
   OPINION OF THE COURT

Order of the Surrogate’s Court appealed from and order of the Appellate Division brought up for review affirmed for reasons stated in the opinion by Justice Myles J. Lane at the Appellate Division (60 AD2d 393), with costs to all parties appearing separately and filing separate briefs payable out of the estate.

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


text:
    In the Matter of the Estate of Mary Lainez, Deceased. Jeanette Gahrman, as Administratrix of the Estate of Mary Lainez, Deceased, et al., Respondents; Department of Social Services of the City of New York, Appellant.
    Decided November 19, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Edward F.X. Hart of counsel), for appellant.

      J. Bruce Byrne for Jeanette Gahrman, respondent.

      Frank C. McLaughlin, Jr., for United States Fidelity & Guaranty Company, respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (79 AD2d 78).

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


text:
    W. A. Olson Enterprises, Inc., Respondent, v Agway, Inc., et al., Appellants.

      Argued October 16, 1981;
    decided November 19, 1981
    APPEARANCES OF COUNSEL

      Paul J. Yesawich, III, for appellants.

      Joseph L. Watson for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Because there was no evidentiary proof that the closing was unreasonably delayed by the plaintiff, the trial court properly granted summary judgment to the plaintiff for the percentage rents due under the lease. For the same reason, the Appellate Division was correct in its modification which awarded attorneys’ fees to the plaintiff. Additionally, even if it were concluded that the provisions of the lease with respect to the tenant’s obligation to pay rent after exercising the option to purchase were ambiguous, in the absence of any tender in the motion papers of extrinsic evidence to resolve the ambiguity, the issue is one of law to be determined by the court (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172).

We do not pass on the request in plaintiff’s brief that we remand to Special Term to pass on fees for services rendered on the appeal before us, a remand for such purpose being neither authorized nor necessary.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of William Stanbridge, Appellant, v Edward R. Hammock, as Chairman of the New York State Board of Parole, Respondent.
    Argued October 19, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      Robert J. Raubach, Matthew Muraskin and Michael J. Obus for appellant.

      Robert Abrams, Attorney-General (Paul Jawin and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The statutory presumption concerning possession of firearms in automobiles (Penal Law, § 265.15, subd 3), especially when coupled with the testimony of the arresting officers that, right after he was signaled to pull his car over to the side of the road, the petitioner first bent forward beneath his seat and then leaned over towards the passenger, was sufficient to support the hearing officer’s determination that the petitioner had violated the conditions of his parole by possessing the two guns. Moreover, since, as his decision expressly indicates, the hearing officer did not rely on the hearsay testimony of the police relating to the oral statements made to them by the passenger as she stepped out of the automobile and soon thereafter at the station house, it is unnecessary for us to consider or decide the questions raised as to the alleged spontaneity of the first of these declarations or whether, as hearsay, their admission was proscribed by Morrissey v Brewer (408 US 471, 489). Nor, in view of the petitioner’s failure to request the hearing officer to direct that Police Officer Boorman produce his crime report or that the hearing be adjourned for that purpose, or, for that matter, to apply for similar relief with regard to the “notes or memorandum” referred to in the letter of September 19, 1979, is the question petitioner now wishes to raise in that regard preserved for our review.

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

Order affirmed, without costs, in a memorandum.


text:
    Daniel B. Perelmutter, Appellant, v New England Mutual Life Insurance Company, Defendant, and Marks/Kronish Agency, Individually and as Successor to David Marks Agency, et al., Respondents.
    Argued October 20, 1981;
    decided November 19, 1981

      APPEARANCES OF COUNSEL

      James B. Sheinbaum for appellant.

      Helen B. Stoller for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (79 AD2d 583).

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


text:
    Joseph L. Fishman, as Executor of Ceferino Hernandez, Deceased, et al., Respondents, v Daniel J. Henry et al., Defendants, and Trade Lanes Shipping Corp., Appellant.
    Submitted October 19, 1981;
    decided November 19, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 16, pp 68-69).


text:
    In the Matter of Vincent Valerio, Appellant, v State of New York, Department of Correctional Services, et al., Respondents.

      Submitted October 5, 1981;
    decided November 19, 1981
   Motion for leave to appeal denied.

Judge Meyer taking no part.


text:
    Inryco, Inc., Respondent, v Parsons & Whittemore Contractors Corporation et al., Appellants.
    Argued October 14, 1981;
    decided November 23, 1981
    APPEARANCES OF COUNSEL

      Jeffrey M. Herrmann for appellants.

      David L.'Berkey and Robert E. Smith for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the application for a stay of arbitration denied.

Contrary to the determination of the Appellate Division majority, questions concerning the existence or terms of an alleged settlement or modification agreement between the parties are to be resolved in arbitration. Plaintiff, as subcontractor, entered into five written contracts with defendants for certain construction work. After a dispute arose concerning performance under the contracts, representatives of plaintiff and defendants met in an attempt to resolve their differences. Defendants contend that the parties reached an agreement at a meeting on March 21,1979 and seek to enforce it in arbitration. Plaintiff maintains otherwise, noting that the draft agreement proposed by it as reflecting the March 21 discussion was rejected by defendants.

There can be no dispute that the parties chose the arbitration forum for resolution of their disputes. In. each of the five written contracts, the parties agreed that “[a]ll disputes arising out of this Contract, its interpretation, performance or breach, shall be submitted to arbitration”. These broad provisions encompass all disputes arising out of the contracts, including those relating to subsequent agreements concerning obligations under the original contracts. Indeed, this court only recently made clear that “[o]nce the parties to a broad arbitration clause have made a valid choice of forum, as here, all questions with respect to the validity and effect of subsequent documents purporting to work a modification or termination of the substantive provisions of their original agreement are to be resolved by the arbitrator” (Matter of Schlaifer v Sedlow, 51 NY2d 181, 185; cf. Matter of Black & Pola [Manes Organization], 50 NY2d 821). Thus there is no basis for staying arbitration of the parties’ dispute concerning the alleged March 21 agreement. Of course, whether evidence concerning the negotiations of March 21,1979 will be admissible is a question for the arbitrator to determine. Finally, public policy is not offended by submission of this dispute to arbitration.

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

Order, insofar as appealed from, reversed, etc.


text:
    In the Matter of James E. Mulvaney, Respondent, v Bernard Dubin, as Justice of the Supreme Court, Queens County, Appellant.
    Argued October 15, 1981;
    decided November 23, 1981
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Michael J. Connolly of counsel), for appellant.

      James E. Mulvaney, respondent pro se, precluded.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

The Appellate Division should have dismissed the petition for article 78 relief, in the nature of prohibition, to prevent Supreme Court from requiring defendant to give the prosecution a written report of his examination by a court-appointed psychiatrist. The extraordinary remedy of prohibition lies only where a court “acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62; Matter of Gold v Gartenstein, 54 NY2d 627, 629). It is not available, however, as a means of seeking collateral review of an error of law in a pending criminal action (Matter of State of New York v King, supra, p 62). The petition here alleges no more than such an error and, therefore, the remedy sought does not lie. The petition should have been dismissed. In light of this disposition, there is no occasion to reach the merits of defendant’s claim.

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

Judgment reversed, etc.


text:
    Fifty States Management Corp. et al., Respondents, v Pioneer Auto Parks, Inc., et al., Respondents, and John W. Lyon, Appellant.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Michael L. Faltischek for appellant.

      Frank J. Bona for Fifty States Management Corp., respondent.

      James T. Duggan for Pioneer Auto Parks, Inc., respondent.

      Eugene Setel for Robinson Land Development Corp., respondent.
   OPINION OF THE COURT

On summary consideration, appeal dismissed, with costs. The terms of this court’s remittitur were not violated and an appeal therefore does not lie as of right.

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


text:
    The People of the State of New York ex rel. Ellis Clanton, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Argued November 17, 1981;
    decided November 23, 1981

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett, Joseph B. Mistrett and Rose H. Sconiers for appellant.

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. Appellant received a parole revocation hearing within the 90 days required by section 259-i (subd 3, par [f], cl [i]) of the Executive Law. The determination was rendered within a reasonable time after that hearing. (9 NYCRR 8005.20 [f]; People ex rel. Knowles v Smith, 54 NY2d 259.)

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


text:
    The People of the State of New York ex rel. Karon White, Appellant, v John C. Dillon, as Sheriff of the County of Onondaga, et al., Respondents.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      George T. Dunn and Gerald T. Barth for appellant.

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

On summary consideration, order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (81 AD2d 1037; see, also, People ex rel. Knowles v Smith, 54 NY2d 259).

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


text:
    The People of the State of New York, Respondent, v Antonio Santana, Appellant.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Alan S. Axelrod and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed for reasons stated in the memorandum of the Appellate Division.

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


author: Meyer, J.

text:
    Michael E. Vogel, Respondent, v Asgrow Mandeville Company, Inc., Appellant.
    Argued October 16, 1981;
    decided November 23, 1981

      APPEARANCES OF COUNSEL

      Dennis A. First for appellant.

      James J. Grifferty for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (74 AD2d 940), and question certified answered in the negative. It is noted that we are not here concerned with possible differences between CPLR 317 and 5015, the moving papers on this motion being insufficient to establish a meritorious defense.

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

Meyer, J.

(dissenting). I vote to reverse. Plaintiff’s attorney’s affidavit concedes that defendant had a “company policy [which] was that an employee who was offered a job by the buyer [of defendant company] * * * would not be entitled to severance pay.” By way of avoidance, however, he argues that “this policy was not uniformly administered.”

That admission by plaintiff’s attorney establishes the company policy upon which defendant relies to show a meritorious defense. That being so, it is immaterial that the affidavit submitted by defendant is by an attorney-employee of defendant’s parent corporation. Because that affidavit is alleged to be on personal knowledge and is by an employee, I would hold it sufficient notwithstanding the employee is also attorney for the parent. In view of plaintiff’s attorney’s admission, however, it is not necessary to reach that point.

Order affirmed, etc.


text:
    In the Matter of Louis J. Venosa, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Michael S. Washor for appellant.

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

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Anrob Enterprises, Ltd., et al., Respondents, v New York State Liquor Authority, Appellant.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Warren B. Pesetsky and Robert Conciatori for appellant.

      Reuben A. Katz for respondent.
   OPINION OF THE COURT

On summary consideration, judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of the Commissioner of Social Services of the County of Erie, on Behalf of Patricia Ketchum, Respondent, v Daniel Gibson, Appellant.
    Decided November 23, 1981
    APPEARANCES OF COUNSEL

      William D. Scott for appellant.

      Robert E. Casey, County Attorney (Richard S. Usen of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (78 AD2d 981).

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


author: Fuchsberg, J.

text:
    Joan Topel, Individually and as Administratrix of the Estate of Harold B. Topel, Deceased, Appellant, v Long Island Jewish Medical Center et al., Respondents.
    Argued October 14, 1981;
    decided November 23, 1981

      APPEARANCES OF COUNSEL

      Jack Glazer, Stanley Alter and Bruce N. Lederman for appellant.

      Thomas R. Newman, Louis G. Adolfsen and Frank Bastone, Jr., for Long Island Jewish Medical Center, respondent.

      Robert Devine, Stephen W. O’Leary, Stephen W. O’Leary, Jr., John J. Brant and Roy Stephen Hiller for Harold Levinson, respondent.
   OPINION OF THE COURT

Memorandum.

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

With respect to the hospital, plaintiff does not dispute the principle, declared in Toth v Community Hosp. at Glen Cove (22 NY2d 255, 265) and Fiorentino v Wenger (19 NY2d 407, 415), among other cases, that a hospital may not be held in damages for carrying out the course of treatment prescribed by a patient’s attending physician. She argues rather that the hospital record does not bear out the hospital’s contention that the deceased was in fact observed at 15-minute intervals as the doctor ordered. The absence of a written record of such observations was, however, explained (such notations were made on worksheets outside the permanent record which were destroyed at the end of each week) and plaintiff introduced no evidence that the worksheet procedure constituted an improper hospital practice (cf. Fatuck v Hillside Hosp., 45 AD2d 708). There was, on the other hand, testimony from nurses of such checks. While the jury could have disbelieved the worksheet explanation, that disbelief would not constitute prima facie evidence of failure to carry out the 15-minute order. The action was, therefore, properly dismissed as to the hospital.

Though the issue is a closer one as concerns the physician, we conclude that the decision whether to keep Mr. Topel on constant observation as contrasted with observation at 15-minute intervals was a matter of professional judgment for which defendant doctor cannot be held. Mr. Topel’s reaction to constant surveillance, the possibility that his heart condition would be aggravated by continuing such surveillance, the gesture-like nature of his prior suicidal indications, the rehabilitative aspects of “open ward” treatment and the enhanced probability of obtaining Mr. Topel’s consent to electroshock therapy in the more relaxed open ward atmosphere were all factors which defendant doctor could properly consider in reaching the judgment whether; on balance, the prescribed program was worth the risk involved. While the line between medical judgment and deviation from good medical practice is not easy to draw, we conclude that more is required to make out a prima facie case against a doctor than wag presented by plaintiff’s expert testimony (Centeno v City of New York, 48 AD2d 812, affd 40 NY2d 932; cf. Cohen v State of New York, 51 AD2d 494, affd 41 NY2d 1086; see Johnson v Yeshiva Univ., 42 NY2d 818). To hold otherwise on the basis of expert opinion which does not negate the factors, listed above, on which the attending physician based his judgment is to subject every judgment made by a doctor, no matter what its basis, to the second guess of a jury.

Fuchsberg, J.

(dissenting in part). Most respectfully, I suggest that the court’s holding accords with neither fact nor law. Worse, in disturbing basic legal doctrine, it relies almost entirely on Centeno v City of New York (40 NY2d 932, affg 48 AD2d 812), which, as I propose to show, is an aberrational decision to which we should not defer (see People v Hobson, 39 NY2d 479, 487-488).

In this medical malpractice action for wrongful death, brought on behalf of the widow and children of Harold B. Topel against Dr. Harold Levinson, a psychiatrist, a classical prima facie case was established. A highly qualified specialist in this field of medicine, called as an expert witness by the plaintiff, testified, on the basis of record facts, that the treatment rendered by the defendant deviated from accepted medical, practice and that the lack of reasonable care inherent in this departure proximately caused the suicidal death in this case. The single expert produced by the defendant testified to the contrary. The issues sharply drawn, the case was submitted to a jury, which returned a verdict for the plaintiff.

Nevertheless, on the defendant’s motion, the Trial Judge, in a lengthy memorandum which, while it ruled in terms of whether plaintiff had made out a case on the law, in substance presented an argument more akin to one on the facts, dismissed the complaint. On appeal from the ensuing judgment to the Appellate Division, Second Department, all four Justices who sat on the case, after expressly noting their “disagreement with the trial court’s analysis of the testimony of plaintiff’s expert witness”, also took the pains to state that “The weight to be accorded the testimony of an expert witness is a matter within the province of the jury and not the trial court” (76 AD2d 862). However, other than to so comment, that court, obviously constrained by Centeno, to which it cited to explain its ruling, and essaying no independent analysis, echoed the Trial Term’s decision that plaintiff had not made out a prima facie case. By leave of this court, the case is now here pursuant to CPLR 5602 (subd [a], par 1, cl [i]). On the analysis which follows, I believe a reversal is now required.

It is elementary that, in deciding whether a prima facie case was made out, we must take the proof most favorably to the plaintiff. Embarking on that task at once, I start with the evening of March 14, 1972, when the decedent, a New York City detective, was brought to the hospital’s emergency room by his wife with the history that he twice that day had attempted to take his life by strangulation. Examinations that night, first by the doctor at the emergency room and then by the hospital’s attending psychiatrist, brought successive diagnoses of “agitated depression” and “psychotic depression”. The second physician then communicated with the defendant, who accepted responsibility for the care of the decedent as a private patient. It is not denied that he was advised of the patient’s suicidal manifestations.

On March 15, the morning following the patient’s admission, after familiarizing himself with the medical record, Dr. Levinson examined his patient for the first time. His entry on the chart described his patient as “a depressed, paranoid, agitated, suicidal 48-year old policeman with obsessional, delusional delirium”. He prescribed three different drugs and recommended a plan for electroconvulsive therapy. At trial, called to the stand by plaintiff’s counsel as an adverse witness, Dr. Levinson was to concede that, when he made these entries, it was in the belief that the patient’s disease was “life-threatening”. He also told the jury that he had instructed the nurses to see to it that the “patient was followed and seen every 15 minutes” to prevent Detective Topel from acting out his suicidal tendencies. On the same day, a nurse’s entry noted that Topel “was trying the windows”.

On his third day at the hospital, March 16, the detective’s symptoms had not abated. Nurse Paternostro’s entry for the 8:00 a.m. to 4:00 p.m. shift includes: “Patient severely depressed, frightened, T’m no use to anyone any more; I’m crazy; I’ve lost my mind.’” The nurse testified that she was so concerned about the severity of the condition that she decided to place the patient under “constant observation”. The proof goes on that this phrase means precisely what it suggests — the patient was to be under the direct observation of qualified hospital personnel 24 hours a day. The intent was to prevent self-inflicted harm. The defendant’s own entry that day was “severely depressed, paranoid, suicidal and suffering from agitated depression”.

On the next day, March 17, the patient continued under constant observation. That morning, when he was examined, it was discovered that his blood pressure had increased and that he had developed tachycardia, an accelerated heart beat. Defendant thereupon changed the medication in the belief that the tachycardia was a side effect of the drugs initially prescribed. That evening, despite what was, if anything, an aggravation of his patient’s emotional condition, and the previously perceived need for constant vigilance, observations were reduced to 15-minute intervals. Dr. Levinson also was later to testify: “The patient was complaining of contact. Théy were getting him more and more delusional. He thought the nurses were driving him crazy and were going to kill him. He was getting more and more agitated”.

Notes on March 18 continue to track the unallayed course of the illness: “On approach [it] appears that he feels threatened, his redundancy is paramount when he feels anxious, stating ‘no one can help me here, it can’t do me any good’”. The following day, he committed suicide. While left alone in his room, he hung himself with a heavy police belt by affixing it to the doorknob of his closed door and to his neck. He had been allowed to retain and wear it throughout his stay.

On this basis, it was the plaintiff’s contention that failure to keep Detective Topel under constant observation during the acute stage of his illness, when, if anything, the clear and present danger that he would take his life was accelerating rather than receding, was a departure from accepted medical practice, and no less so because its discontinuance catered to the possible comfort or preference of the deranged patient. The proof on this score came from Dr. Manuel Trujillo, a qualified psychiatrist, whose credentials included certification by the American Board of Psychiatry and Neurology, the ongoing directorship of a psychiatric institute and professorial rank at Columbia. In response to a hypothetical question predicated on facts adduced at the trial, including the entire hospital record, Dr. Trujillo testified “that the care and treatment afforded the deceased was not in conformity with the standards of acceptable medical and psychiatric care”, “[t]his patient showed symptoms and signs of having a severe psychotic depression”, “this condition is a condition which has a very high suicidal risk” and “the proper treatment for [it] includes constant observation or other measures that insure that the patients will not carry out their suicidal impulses”. If any further particularization of the departure Dr. Trujillo was referring to was needed, it was supplied in this question and answer: “Q. And, doctor, is the failure to have this patient under constant observation from moment No. 1, when he was admitted *** is that the deviation from the accepted medical psychiatric practice that then existed in 1972? A. That is my opinion, sir”.

Persistent attempts to shake this testimony on cross-examination did not succeed, not even when counsel’s questions altered the hypotheses the witness had originally been asked to assume by adding or subtracting components (see Stearns v Field, 90 NY 640; 2 Wigmore, Evidence [Chadbourn rev], §682, subd [b]; §684). For example, though he agreed that in his own practice all patients whom he hospitalized and who had histories of suicidal ideations, gestures or attempts were not put under constant observation, 15-minute checks being appropriate in some cases, he was steadfast that this more limited observation was not to be condoned except “where the suicidal risk was low”. Similarly, he explained that, though he treated some patients who were suicide risks on an outpatient basis, this would only be when he “felt that the risk was not very high or was not imminent”; Dr. Trujillo had previously testified formally to what appears well-nigh conceded, that Detective Topel was “a very high suicidal risk”. And, consistently, when defense counsel specifically elicited his opinion on whether increased agitation on the part of the patient in the face of complete surveillance could support a decision to terminate constant i observation, his answer was that, “given the severity of 1 [Topel’s] condition”, it would run counter to good medical i practice to even consider doing so.

^ The legal principles applicable in this factual contest are neither complex nor confusing. The law generally permits the medical profession to establish its own standard of care. Though, in some circumstances, a physician may be held to an even higher standard, in most cases the one that will govern is accepted medical practice (Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 262-263, supra; see n 2, supra). Also, so long as a physician stays within the bounds of the accepted practice, he or she is immune from liability for pure errors of judgment or for mere lack of success in his or her medical ministrations. But, when there is a departure from that standard, when the physician goes beyond its limits, the medical judgment so exercised carries no immunity against a claim that it constituted negligence (see Davis v Caldwell, 54 NY2d 176). Moreover, when the judgment exercised is outside the permissible range, “however good his intentions may have been”, a physician will not thereby be rendered free from liability for this “departure from approved methods in general use” (Pike v Honsinger, 155 NY 201, 210).

To establish what the existing standard is or that there has been a departure from it, because laymen ordinarily are not deemed possessed of sufficient knowledge, training or experience to have attained the competence to testify on this subject, a plaintiff nearly always will be required to produce expert testimony (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 24; Hammer v Rosen, 7 NY2d 376, 380; see, also, 7 Wigmore, Evidence [Chadbourn rev], § 2090; Prosser, Torts [4th ed], p 164; 81 ALR2d 597). Of course, in the end, the weight to be given the testimony of such a witness, as with the testimony of all witnesses, is for the jury or other trier of the facts (Meiselman v Crown Hgts. Hosp., 285 NY 389, 398; see Dougherty v Milliken, 163 NY 527).

On all this, measuring the factual showing that I have recounted by the foregoing legal propositions, it would appear that there is no possible question but that the proof here was ever so much more ample than that minimum quantum which, once adduced by a plaintiff, was supposed to create a factual issue whose resolution belonged to the jury (see 9 Wigmore, Evidence [Chadbourn rev], § 2494). Nonetheless, as far as I can make it out, in essence the majority unaccountably now holds that, no matter how much evidence is produced by the plaintiff, she cannot establish a prima facie case because there simply is no cause of action for the wrong she set out to prove. As already indicated, to justify this drastic departure from fundamental and almost universally respected decisional law, the court places primary reliance on our decision in Centeno v City of New York (40 NY2d 932, supra), where, without explication of our own, we rested on a brief memorandum of the majority at the Appellate Division (48 AD2d 812).

Turning to Centeno, further study of that case demonstrates that the Appellate Division’s opinion there was flawed in major respects. Among others, both the single case on which its writing relied, i.e., Taig v State of New York (19 AD2d 182), as well as the three cases which Taig itself cites, i.e., St. George v State of New York (283 App Div 245, affd 308 NY 681), Warner v Packer (139 App Div 207) and Pike v Honsinger (155 NY 201, supra), are each readily distinguishable.

As preface to the analysis that proves this point, in order is a brief summary of the indisputable facts which governed Centeno. The decedent there was a diagnosed paranoid schizophrenic who, after a previous stormy sojourn in New York City’s Metropolitan Hospital, where it was decided that maintenance on thorazine, a powerful anti-psychotic drug, was a sine qua non, he was admitted to Bellevue Hospital as an emergency case on July 24, 1967. For some time prior to this admission, he had ceased taking the thorazine because of troublesome idiosyncratic side effects. The state this had reduced him to by July 24 is described in the record kept in the regular course of the hospital’s business as follows: “Brought by police, handcuffed *** agitated, violent behavior *** appears to be actively hallucinating. Talking of hearing messages from God. Speech relevant for short period, then starts screaming”. On the admission sheet, there was a stamp which said “suicidal patient” and provided boxes to be checked either “yes” or “no”. The “yes” box was marked. It was also noted that he was drug dependent. Nevertheless, despite this foreboding appraisal and a tortuous confirming course, he was moved from admission to discharge with amazing speed. Revealing in this regard is the fact that, after three days of hospitalization, his violent behavior towards hospital personnel found him placed “in seclusion”. Moreover, after four more days, on August 1, the chart showed that his psychotic condition had not subsided and that continued hospitalization was still necessary. Nonetheless, within two or three days, this volatile patient was discharged without medication. The hardly unexpected result was that, but a few days later, on August 9, he took his life by leaping through a window.

At the trial of the suit that ensued, a qualified psychiatrist, on this and other proof of “hostility”, “depression”, “delusional thoughts”, “hallucinatory experiences”, “loose associations” and “assaultive tendencies”, testified that Centeno’s condition made him a constant candidate for “an impulsive act which would result in a suicide, even if five minutes before he had not necessarily given it thought”. The witness, speaking “with a reasonable degree of medical certainty”, explained that, at the time of his discharge, Centeno “needed additional treatment both of a pharmaceutical nature in the form of drugs of various sorts and confinement to an institution where there is a regulation of his activities, a guard on what he might do to himself or others, until such time as he showfed] a degree of real stability” and “that this man was rather superficially treated and released much too soon for his own or anybody else’s good”.

On these same facts, he expressed the opinion that, “in accordance with the accepted medical practice and accepted psychiatric practice in July 1967”, “it is very much my opinion and I can’t state it too strongly that [this] highly agitated, disturbed, delusional, hallucinating individual should not under any circumstances * * * [have been] released from the hospital with or without medication after such a brief stay” and “certainly not discharged * * * from the hospital with no medication and no possibility of suitable follow up” (emphasis supplied). It was on such a record plus proof of causation that defendant’s motion to dismiss was granted.

Getting back now to the Appellate Division’s affirming memorandum in Centeno, I begin with a verbatim statement of the first proposition it puts forward: “There is not an iota of evidence to indicate that [the discharging psychiatrist’s] opinion was other than honest. It is therefore completely irrelevant that plaintiff-appellant’s expert testified as is set forth in the dissent. Disagreement between professional experts does not in these circumstances provide the basis for a holding that a prima facie case of malpractice was presented requiring jury consideration.” This, of course, ran completely counter to the developed doctrine which has prevailed in this area of law from the seminal Pike case down (Pike v Honsinger, 155 NY 201, 211, supra [“however good his intentions may have been”]). The Centeno memorandum’s second proposition, quoting haec verbae from Taig, after stating the obvious, i.e., that “decision to release the patient from the hospital * * * [was a] professional medical judgment” presumes to pronounce that “Although another physician might disagree as to the form and period of treatment to be followed, a liability would not arise *** if the professional judgment to discharge him was in fact erroneous”. This sanctification of medical judgment per se, irrespective of whether it is good, bad or indifferent; or whether it accords with or is opposed to good medical practice; or whether it results from want of requisite knowledge or skill; or whether it flows from a failure to make a diligent medical evaluation, would set medical malpractice law, if not all professional malpractice law, on its head (see Pigno v Bunim, 43 AD2d 718, affd 35 NY2d 841). Besides, in Centeno, as in Topel, there simply was no attempt merely to pit one medical judgment against another. By no means was the expert testimony in either case confined to averments that the treatment rendered, though founded on judgment, was in error. Rather, it was that the premature discharge of Centeno, and the failure to constantly observe Topel, if indeed not patently unreasonable, deviated from accepted psychiatric medical practice.

Hieing then to the three authorities on which Centeno leans (via their incorporation in its quotation from Taig), we look in vain for confirmation of the pronouncements the Appellate Division published. In the first one, St. George v State of New York (283 App Div 245, affd 308 NY 681, supra), a claim was brought against the State for alleged negligence in releasing a psychotic Matteawan State Hospital patient who subsequently killed four people. The Court of Claims Judge who heard the case, which, like all trials in that court, proceeded without a jury, held the hospital liable, essentially on factual findings of inadequate investigation of the patient’s medical condition. On appeal, for its part, the Appellate Division, on review of the record, arrived at an opposite factual determination, as it is empowered to do (CPLR 5501, subd [c]; Cohen v Hallmark Cards, 45 NY2d 493, 498). In affirming the Appellate Division’s order, without opinion, we did no more than choose between the opposing factual determinations (NY Const, art VI, § 3, subd a; CPLR 5501, subd [b]). Thus any argument that St. George undermines the existence of an issue of fact when a medical judgment’s soundness is challenged by competent proof that it is dehors acceptable practice is bootless.

The second cited case, Warner v Packer (139 App Div 207, supra), provided no greater succor for Centeno. There the plaintiff brought suit for damages against medical examiners who, she alleged, negligently certified her as insane, as a consequence of which she for a time had been wrongfully detained in a mental institution. True, the Appellate Division held that no jury question had been presented. But it was because the plaintiff did not introduce any expert proof of the existence of a standard with which the conduct of the defendants could be compared (Warner v Packer, supra, at pp 214-215). Warner, then, is antithetical to the suggestion that the expert testimony in Topel, or that which was introduced in Centeno, had not provided the necessary link for a prima facie case.

The last of the three Taig-Centeno citations is to Pike v Honsinger. The wellspring of modern malpractice law, Pike gave a central place to proof of “departure from approved methods” in its determination that a case of medical malpractice was made out and, as discussed earlier, was destructive of Centeno’s “honest opinion” argument. One cannot help wonder then whether its citation was pure ritual. Oh, yes, it does make reference to immunity “for a pure error of judgment”, but it does so in two pages which make it crystal clear that, like an “honest opinion” or “good intentions”, this is only the beginning and not the end of the inquiry on which liability must come to rest.

None of the Taig cases lending support to Centeno’s conclusion, I also focus, for the purpose of completeness on Centeno’s remaining argument, a continuation of its quotation from Taig. It consists in the main of a number of nondecisive platitudes: “the prediction of a future course of a mental illness is a judgment of high responsibility”, “in some instances it involves a measure of calculated risk”, “if liability were imposed each time the prediction of future course of mental illness went wrong, few releases would ever be made” (emphases added). To put these comments in perspective, it must be remembered that Taig was a Court of Claims nonjury case and that the Appellate Division, in affirming, was dealing with an appeal on which it was reviewing facts.

Because there was no divergence between the Court of Claims and the Appellate Division, the case never came to our court and so we had no occasion to countercomment. But, had we occasion to do so, many queries could readily have come to mind: If a mental illness’ future course is a “high responsibility”, why not all the more reason to hold the one who carries it to strict conformity with the line drawn by accepted medical practice, representing as it does a consensus of his fellows’ practical experience as an appropriate minimum norm? If “a measure of calculated risk” may be involved only “in some instances” does not a factual determination as to whether in any particular “instance” the exercise of judgment falls outside the bounds of accepted use become all the more appropriate? Is emphasis on the element of predictability as to the future course of mental illness misplaced when all a psychiatrist is asked to do is to take accepted precautionary measures to guard against given risks (e.g., Topel and Centeno, where the risks of suicide not only existed but were labeled for all who had “high responsibilities” to see)? How can one hypothesize the consequences of imposing liability “each time” a judgment as to the future course of a mental illness “goes wrong”, when there is no such thing as an “each time” imposition? And, if behind all this lurk other questions — medical, social or economic — why are these not more appropriately considered by the Legislature, with facilities and penchants for factual investigation and experimentation not available to the judiciary (see Simcuski v Saeli, 44 NY2d 442, 456 [concurring opn])?

Inspection of the visible foundation stones of Centeno having thus disclosed their lack of substance, it may not be amiss to note that its precedential value is further eroded by a glaring omission. It completely ignores a long line of cases which recognize a duty to protect a patient with known self-destructive tendencies from himself (see, e.g., Hirsh v State of New York, 8 NY2d 125; Daley v State of New York, 273 App Div 552, affd 298 NY 880; Martindale v State of New York, 269 NY 554; Comiskey v State of New York, 71 AD2d 699; Gries v Long Is. Home, 274 App Div 938; Callahan v State of New York, 179 Misc 781, affd 266 App Div 1054; Robertson v Towns Hosp., 178 App Div 285). This adds but another reason why I cannot see how the court in the present case, while acknowledging that the “line between medical judgment and deviation from good medical practice is not easy to draw” [for the physician or for the Judge?] (majority opn, at p 684), finds it possible, in a medical situation in which five minutes of supervisory inattention may make the difference between life and death, to undertake, as a matter of law, to superimpose its own medically and psychiatrically unqualified opinion that something less than complete supervision accorded with accepted medical practice.

Finally, because Centeno rears its head, it is with utmost respect that I exercise the privilege of suggesting that, sensitive though a court must be to considerations of stare decisis, this is an appropriate case in which to apply the wisdom of the question we put and the answer we supplied on another occasion: “Which is the stare decisis: The odd cases or the line of development never fully criticized or rejected? * * * Of course, it would be foolhardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next; but it is just as scandalous to treat every errant footprint barely hardened overnight as an inescapable mold for future travel” (People v Hobson, 39 NY2d 479, 487-488, supra).

For all these reasons, the order appealed from should be modified by reversing the judgment in favor of the defendant Levinson and remitting the pase to the Appellate Division for consideration of the facts.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Meyer concur in memorandum; Judge Fuchsberg dissents in part and votes to modify in an opinion; Judge Wachtler taking no part.

Order affirmed.

      . For reasons which include those stated by the majority in its memorandum decision, I make no issue of the dismissal of the case against the hospital. Therefore, all my references to the defendant are to Dr. Levinson alone.

      . It also cited our decision in Toth v Community Hosp. at Glen Cove (22 NY2d 255), but Toth, which, unlike Centeno, did not involve a suicidal psychiatric patient, merely states the general propositions of medical malpractice law on which all parties here agree. Moreover, in Toth, the jury, unlike in the case before us now, found as a fact that the physician acted in accordance with accepted medical practice. So our opinion there dealt, in the main, with the discrete question of the hospital’s liability and with whether, as to a second physician, the case should have been submitted to the jury on the alternative theory that a physician may be held to even a higher standard than accepted practice if he possesses “superior skill, knowledge or experience”.

      . As other trial evidence indicated, in the period preceding his hospitalization, Detective Topel was on sick leave for extreme agitation, insomnia, weight loss and obsession, with fears that he would be discharged from the police force and bring disgrace upon his family. On March 11, three days prior to admission, he had told his wife, “I am going to suffocate myself” and “It is easy to go out of a window * * * it would be over quick”.

      . At the trial, Levinson claimed that the constant observation was instituted as a result of his telephone order to the nurse. However, the nurse testified that it was she who made the decision to place Topel on constant observation and that she did not remember any such telephone order. Levinson’s claim was also contradicted by his prior testimony that he never ordered “constant observation”. The medical chart included no such telephone order.

      . Neither at that time nor at any subsequent time before Topel died did Levinson ever see a report of a follow-up electrocardiogram he had ordered.

      . The court also cites to Cohen v State of New York (41 NY2d 1086, affg 51 AD2d 494) and Johnson v Yeshiva Univ. (42 NY2d 818), but these cases have little, if any, relevancy here. In Cohen, the only issue presented for our review was the correctness of the Appellate Division’s reduction of the damage award. In Johnson, we simply held that no question of fact was raised when the only showing was that the use of a particular medical test was not a departure from accepted medical practice; in Topel, as we know, Dr. Trujillo expressly disputed Dr. Levinson’s conclusion that the treatment conformed to accepted practice.

      . In Centeno, my dissenting memorandum emphasized “that the fact that a departure from accepted medical practice occurs in a psychiatric rather than in a nonpsychiatric setting is only an element to be weighed along with all the other circumstances in a particular case and is not the premise for an application of different legal principles” (40 NY2d 932, 933).

      . In sharp contrast, when Centeno, only months earlier, had been hospitalized at Metropolitan, though, after 10 days, the thorazine treatment instituted there appeared to have reduced his symptoms, the doctors would not release him to convalescent care without first keeping him under observation for an additional two weeks to make certain that his condition was under control.


text:
    Arnold I. Loew, Appellant, v Heleen Loew, Respondent.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Donald M. Sukloff for appellant.

      Stuart L. Levison for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. It cannot be said, as a matter of law, that the Appellate Division abused its discretion by reversing, insofar as appealed from, so much of the order of Family Court as directed defendant to make child support payments (cf. Patron v Patron, 40 NY2d 582).

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


text:
    In the Matter of Johnnie B. Hall, Respondent, v New York City Transit Authority, Appellant.
    Decided November 23, 1981

      APPEARANCES OF COUNSEL

      Richard K. Bernard, Kenneth Howard Schiffrin and Edward H. Cohn for appellant.

      Murray Cutler for respondent.
   OPINION OF THE COURT

On summary consideration, judgment reversed, with costs, and the determination of the Impartial Disciplinary Review Board reinstated. There was substantial evidence to sustain the findings of the referee, confirmed by the board, that (1) petitioner was unfit for duty, and (2) petitioner’s refusal to submit to a blood test was not predicated on religious considerations. Nor in view of petitioner’s past disciplinary history can we say that the sanction of dismissal was an abuse of discretion.

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


text:
    Board of Managers of Village House, Respondent, v Paris B. Frazier, Appellant, et al., Defendants.
    Submitted October 19, 1981;
    decided November 23, 1981
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, Respondent, v Howard P. Sturman, Appellant.
    Submitted November 16, 1981;
    decided November 23, 1981
   Cross motion to dismiss appeal granted to the extent that the appeal is transferred to the Appellate Division, Second Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2). Motion for a stay dismissed as academic.


text:
    George McCaffrey et al., Respondents, v Edward Strainer, Doing Business as Strainer’s Construction, Appellant, and Oliver Seib, Respondent. (Action No. 1.) Greenwich Concrete Products, Inc., Respondent, v George McCaffrey et al., Respondents, and Edward Strainer, Doing Business as Strainer’s Construction, Appellant. (Action No. 2.)
    Submitted November 16, 1981;
    decided November 23, 1981
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    New York City Transit Authority et al., Respondents, v William Lindner et al., Appellants, et al., Defendants.
    Submitted November 9, 1981;
    decided November 23, 1981
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 43, subd [d], p 176).


text:
    In the Matter of Rusciano & Son Corporation et al., Appellants-Respondents, v William E. Roche, as Assessor, et al., Respondents-Appellants. In the Matter of Rusciano & Son Corporation et al., Appellants-Respondents, v Richard R. Blessing, as Assessor, et al., Respondents-Appellants.
    Submitted October 26, 1981;
    decided November 23, 1981
   Motions by respondents-appellants for leave to appeal denied. On the court’s own motion, appeal taken as of right by petitioners-appellants-respondents dismissed, without costs, upon the ground that the Appellate Division order (70 AD2d 953) granting a new trial, here brought up for review, did not “necessarily affect” the final order, as required by CPLR 5601 (subd [d]). (Cohen and Karger, Powers of the New York Court of Appeals, § 79, pp 344-345.)


text:
    Federal Deposit Insurance Corporation, Respondent, v Irene Schwartz, as Executrix of Sigmund P. Schwartz, Deceased, Appellant.
    Argued October 22, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Thomas L. Costa for appellant.

      Ira L. Hyams for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

We would only add that the appellant executrix has offered no proof of an evidentiary nature to contradict the evidence submitted by the respondent Federal Deposit Insurance Corporation. The opposition to respondent’s motion for summary judgment is merely a recitation of bare allegations and speculation as to what discovery might reveal. In view of the detailed documentary support for respondent’s motion for summary judgment, and in light of the failure by the appellant either to advance facts rebutting respondent’s proof or raising triable issues of fact (Indig v Finkelstein, 23 NY2d 728) or to seek a stay pending discovery of the facts that appellant claims are not within her knowledge, summary judgment was properly granted.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of the Claim of John Leveski, Appellant, v Dic Underhill Joint Venture et al., Respondents. Workers’ Compensation Board, Respondent.
    Decided November 24, 1981

      APPEARANCES OF COUNSEL

      Victor Pasternack for appellant.

      Raymond. C. Green and Victoria Manes for State Insurance Fund, respondent.

      Robert Abrams, Attorney-General, for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand for a hearing, for the reasons stated in the dissenting memorandum of Justice Ann T. Mikoll at the Appellate Division.

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


text:
    Donato Ian, Respondent, v Karin Wassberg, Appellant, et al., Defendants.
    Argued October 21, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Kenneth G. Schwarz for appellant.

      A. Richard Golub for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (80 AD2d 505).

Plaintiff, as the holder of a prior valid lease, is entitled to relief in his action of ejectment against defendant. Moreover, we conclude that on May 15, 1979, the date of the presentation of the plan of conversion to cooperative ownership, plaintiff was entitled to purchase the shares allocated to apartment 11A at 257 Central Park West, despite the fact that defendant was then on the premises. For the purposes of section 61 (subd 4, par [b]) of the Code of the Real Estate Industry Stabilization Association of New York City, Inc., the term “tenant in occupancy” means, under the circumstances of this case, the tenant who had the paramount right to occupy the apartment in question.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Ernesto Ramirez, Appellant.
    Argued October 23, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      James Reif for appellant.

      JohnJ. Santucci, District Attorney (Barbara H.D. Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Defendant was charged, together with a codefendant, with two counts of attempted murder in the second degree, one count of assault in the first degree, and three counts of criminal possession of a weapon. At the close of the People’s case, the Trial Judge reduced one of the attempted murder counts to reckless endangerment in the first degree, having found the evidence insufficient to establish the element of intent to kill, and dismissed the remaining counts of the indictment. The Appellate Division affirmed defendant’s conviction over a challenge that the conviction for reckless endangerment was improper because that crime does not meet the statutory definition of lesser included offense with respect to the crime of attempted murder in the second degree (Penal Law, §§ 110.00,125.25, subd 1).

CPL 1.20 (subd 37) defines the term “lesser included offense” as follows: “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.’” The plain meaning of this statute is clear — that is, that one crime cannot be a lesser included offense of another if it is theoretically possible to commit the greater crime without concomitantly committing the lesser. This interpretation of the statute was recently expressed in People v Miguel (53 NY2d 920), where it was held that assault in the third degree is not a lesser included offense of either robbery or felony assault. As the Appellate Division noted in the present case, it is theoretically possible to commit the greater crime of attempted murder in the second degree (Penal Law, §§ 110.00,125.25, subd 1) without also committing the lesser crime of reckless endangerment in the first degree (Penal Law, § 120.25) since, if the attempt is rendered innocuous by some circumstance of factual impossibility, no grave risk of death to another person is created, as is required for the crime of reckless endangerment in the first degree. Accordingly, the crime'of reckless endangerment in the first degree (Penal Law, § 120.25) is not a lesser included offense of attempted murder in the second degree (Penal Law, §§ 110.00,125.25, subd 1).

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

Order reversed, etc.