text:
    [680 NE2d 602, 658 NYS2d 229]
    In the Matter of Tony Harper, Appellant, v Daniel D. Angiolillo, as Judge of the Westchester County Court, et al., Respondents.
    Argued March 18, 1997;
    decided May 6, 1997

      POINTS OF COUNSEL

      Beldock Levine & Hoffman, L. L. P., New York City (Peter A. Perlman and Myron Beldock of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, New York City (Michael O. Hueston, Barbara G. Billett and Thomas D. Hughes of counsel), for Daniel D. Angiolillo, respondent.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Joseph M. Latino and Richard E. Weill of counsel), respondent pro se.

   OPINION OF THE COURT

Smith, J.

The primary issue on this appeal is whether a former defendant in a criminal proceeding which terminated in his favor may obtain automatic access to all files relating to his arrest and prosecution from the Westchester County District Attorney’s office pursuant to CPL 160.50 (1) (d) through a CPLR article 78 proceeding for mandamus. Petitioner seeks to use these files in a Federal civil proceeding. We affirm the judgment of the Appellate Division because petitioner has failed to demonstrate a clear legal right to the material in possession of the District Attorney’s office. Moreover, in seeking the wholesale production of the District Attorney’s files from a Judge sitting in the Criminal Term of County Court, petitioner has presented his request for relief to an inappropriate forum.

A Grand Jury in Westchester County indicted petitioner for aiding and abetting and acting in concert with another in committing the crimes of robbery in the second degree, grand larceny in the fourth degree and assault in the second degree. In March 1994, after reviewing the Grand Jury minutes, County Court dismissed the indictment due to insufficient evidence of accessorial liability. County Court also denied the People leave to re-present the case to another Grand Jury. The criminal proceeding terminated in petitioner’s favor upon entry of the County Court order (see, CPL 160.50 [3] [b]) and the record of the proceeding was sealed pursuant to CPL 160.50.

Petitioner thereafter commenced a civil action in Federal Court against the City of White Plains and members of the White Plains Police Department for damages arising out of his arrest and prosecution. During discovery, petitioner served a subpoena on the Westchester County District Attorney’s office to inspect and copy the records pertaining to his criminal prosecution. When the District Attorney refused to comply with the subpoena, petitioner filed a motion pursuant to CPL 160.50 in the Criminal Term of Westchester County Court seeking "[a]ll records and papers of the Office of the Westchester County District Attorney’s office [szc] relating to [petitioner’s] arrest and prosecution.” Petitioner also sought an order requiring the production of the Grand Jury minutes. The motion bore the caption and indictment number of petitioner’s terminated criminal proceeding.

County Court denied the motion in its entirety. Petitioner thereafter commenced this CPLR article 78 proceeding at the Appellate Division by order to show cause to compel the unsealing and production of the District Attorney’s files and to vacate the County Court order. The article 78 petition alleged that the District Attorney’s office had violated CPL 160.50 by refusing to make the files in its custody available to the petitioner. The petition urged the Appellate Division to order the District Attorney to "unseal her files from the criminal case against Petitioner and to provide Petitioner with full access for inspection and copying.” The petition further alleged that County Court had erred in denying petitioner’s motion for access to the files. The Appellate Division dismissed the proceeding on the ground that petitioner had failed to justify the "extraordinary remedy of mandamus” (229 AD2d 495). We granted petitioner leave to appeal.

CPL 160.50 provides that upon the "termination of a criminal action or proceeding against a person in favor of such person,” and where the interests of justice do not require otherwise, "the record of such action or proceeding shall be sealed” (CPL 160.50 [1]). The statute further requires that Petitioner, who has abandoned his claim to the Grand Jury minutes, contends that CPL 160.50 grants him "unconditional” access to the files held by the District Attorney’s office.

"(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency; and
"(d) such records shall be made available to the person accused or to such person’s designated agent”.

The nature of our review on this appeal is circumscribed by the form of action brought by the petitioner — an article 78 proceeding in the nature of mandamus to compel. "Mandamus, of course, is an extraordinary remedy that, by definition, is available only in limited circumstances” (Klostermann v Cuomo, 61 NY2d 525, 537). Indeed, "[m]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought” (Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16).

As stated in the article 78 petition, petitioner seeks (1) vacatur of the County Court order denying his motion for "all” records and papers of the District Attorney’s office pertaining to his arrest and prosecution, and (2) an order directing the Westchester County District Attorney to unseal the relevant files and provide petitioner with "full access” for inspection and copying. We must determine whether petitioner has demonstrated a clear legal right to this relief.

In demanding free and unlimited access to the entirety of the District Attorney’s files, petitioner equates every item in those files with the "official records and papers” referred to in CPL 160.50 (1) (c). Thus, in seeking to cast his claim for relief here as a clear legal right, petitioner argues that CPL 160.50 (1) (d) imposes a bright line rule requiring the disclosure of everything contained in a prosecutor’s files. Such a conclusion is contradicted by the plain language of the statute which limits the accused’s access to all official records and papers, rather than permitting free access to any and all records and papers, without limitation.

Moreover, although CPL 160.50 specifies judgments and orders of a court as items "included” in the category of official records and papers, the statute is otherwise silent on the nature of such "official” material (see, CPL 160.50 [1] [c]) further supporting the conclusion that bright line rules are not wholly appropriate in this area. Indeed, such records and papers are not always subject to easy identification and may vary according to the circumstances of a particular case (Matter of Dondi, 63 NY2d 331, 337).

Thus, in Matter of Dondi, we held that "on the facts of this case” certain "testimonial evidence” consisting of an incriminatory tape recording constituted an official record subject to CPL 160.50 (1) (c) (id., at 337-338). However, in Matter of Hynes v Karassik (47 NY2d 659, 661-662) we affirmed the Appellate Division’s determination that "two tape recordings introduced into evidence at the criminal trial were not within the definition of 'official records and papers’ protected by the sealing statute (CPL 160.50, subd 1, par [c]).” Consequently, while some recordings may qualify as an official record under certain circumstances, not all tape recordings will qualify as an official record in every case.

Moreover, former defendants are not automatically ensured access to every record or paper sealed pursuant to CPL 160.50 (1) (c). The sealing requirement was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused (see, Governor’s Approval Mem, 1976 NY Legis Ann, at 408, 409 ["This legislation is consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law”]). As we have previously noted, a person’s reputation and employment prospects may be adversely affected even from an unsuccessful criminal prosecution (Matter of Hynes v Karassik, 47 NY2d, at 662, supra). Consequently, the ambit of the sealing requirement is broad and includes proceedings terminated by virtue of dismissals and vacaturs, on grounds unrelated to guilt or innocence, so that a former accused may pursue employment, education, professional licensing and insurance opportunities untainted by the stigma of a criminal prosecution (see, CPL 160.50 [2]; People v Patterson, 78 NY2d 711, 716).

Notwithstanding these concerns, the Legislature has acknowledged the existence of countervailing considerations to the sealing of such records and papers. Thus, CPL 160.50 contains "narrowly defined exceptions” which authorize the disclosure of sealed materials, under certain circumstances, to a limited group of third parties (Matter of Hynes v Karassik, 47 NY2d, at 663, supra). Consequently, a former defendant’s interest in preventing the disclosure of official records and papers in a favorably terminated proceeding is not absolute. Similarly, a former defendant does not have an absolute right to the disclosure of materials sealed pursuant to CPL 160.50.

The Legislature, by enacting specific legislation designed to avoid the pitfalls of providing untrammeled access to law enforcement records, has already recognized that a defendant’s interest in such records may be outweighed by competing policy considerations. For example, records compiled for law enforcement purposes may not be subject to disclosure where disclosure would interfere with law enforcement investigations or judicial proceedings, deprive a person of a right to a fair trial, identify a confidential source, reveal nonroutine investigative techniques or procedures, endanger the life or safety of any person, or interfere with statutory exemptions and privileges (see, e.g., Public Officers Law § 87 [2]; CPLR 3101 [b], [c]). These countervailing considerations to the wholesale disclosure of law enforcement records are not obviated merely because a criminal prosecution has terminated in favor of a defendant.

In sum, CPL 160.50 balances the rights of a former defendant to restrict and obtain access to official records and papers in favorably terminated criminal proceedings, against the interests of various law enforcement agencies and representatives in the same materials. The statute strikes the balance by requiring sealing in a wide variety of contexts and providing for the disclosure of sealed files in only limited circumstances. The primary purpose of averting adverse consequences to the accused in unsuccessful criminal prosecutions, implemented by the broad sealing requirement, does not require the wholesale production of law enforcement files to a former accused.

Given the absence of a clear and unequivocal expression of intent from the Legislature to dispense with existing limitations on the ability of a former defendant to obtain unrestrained access to law enforcement records, petitioner here has failed to demonstrate a clear legal right to the records he seeks. We therefore reject petitioner’s contention that he is entitled to every item in the files held by the District Attorney’s office as a matter of law. As petitioner has failed to demonstrate a clear legal right to the relief sought, mandamus is not appropriate, and the Appellate Division properly dismissed the proceeding.

Since the merits of County Court’s order are not before us, we do not determine any issue relating to the specific application of CPL 160.50 to the circumstances of this case. By bringing his motion in the Criminal Term of County Court, instead of within the context of a civil action, petitioner apparently foreclosed a direct appeal of County Court’s order, as no statutory authority for such an appeal appears to exist (see, Matter of Hynes v Karassik, 47 NY2d 659, 661, n 1, supra).

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.

Judgment affirmed, without costs.

      . Such third parties include certain categories of prosecutors and law enforcement agencies, persons or agencies with responsibility for issuing gun licenses, the New York State Division of Parole and the probation department in certain circumstances, and prospective employers of police or peace officers (CPL 160.50 [1] [d]).

      . Even defendants involved in criminal proceedings, where the liberty interests at stake are more significant than in civil proceedings, are not entitled to every record or paper in the possession of law enforcement agencies (see, CPL art 240).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [680 NE2d 606, 658 NYS2d 233]
    The People of the State of New York, Respondent, v Noel Tichenor, Appellant.
    Argued March 19, 1997;
    decided May 8, 1997

      POINTS OF COUNSEL

      Louise M. Harding, Clifton Park, for appellant.

      David A. Wait, District Attorney of Saratoga County, Ballston Spa (Nicholas E. Tishler and James A. Murphy, III, of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

On this appeal, defendant challenges his affirmed conviction and the constitutionality of New York’s disorderly conduct statute (Penal Law § 240.20 [3]) under the State and Federal Constitutions. This case arises out of an incident that occurred in September 1993 in front of and then inside a bar in downtown Saratoga Springs.

The evidence, viewed in the light most favorable to the People as we must in the procedural posture of this affirmed conviction, is as follows: A police officer walking a street beat observed Tichenor standing outside the bar just after midnight. As the officer passed by the bar, Tichenor uttered an obscenity at the officer; he also spat on the ground towards the officer’s feet. The officer, who was about eight feet from Tichenor, turned and moved towards the individual. Tichenor then proceeded to shove the officer while uttering further obscenities. The officer testified that he did not observe anyone else on the street at that point in time.

Following this physical confrontation, the officer decided to arrest Tichenor and moved towards him, but Tichenor then attempted to reenter the bar. The officer put his hand on Tichenor’s elbow and said, "Sir, step out here.” Tichenor initially complied. While still holding onto Tichenor with his left hand, the officer reached for his handcuffs with his right hand. As this was occurring, a group of people gathered in the doorway of the bar, with some screaming "Leave him alone,” adding various epithets. The patrol officer then radioed for assistance. Tichenor pulled away from the officer’s grasp and moved into the bar. The officer followed him inside, and when he caught up with Tichenor and attempted to arrest him, a scuffle ensued with bar patrons joining the fray. The police who responded to the officer’s call testified that when they reached the bar, Tichenor and a number of other people were on top of the patrol officer, who was on the floor. Eventually, the officers sorted out the melee, handcuffed Tichenor and placed him under arrest.

Tichenor was charged with disorderly conduct (Penal Law § 240.20), harassment in the second degree (Penal Law § 240.26) and resisting arrest (Penal Law § 205.30). Following a jury trial in the Saratoga Springs City Court, he was convicted of disorderly conduct and resisting arrest and acquitted on the harassment charge. On his appeal to County Court, the conviction was affirmed. The intermediate appellate court found sufficient evidence to support the verdict and judgment and rejected Tichenor’s argument that the disorderly conduct statute was unconstitutional. A Judge of this Court granted defendant leave to appeal. We now affirm the order upholding the conviction and hold that the disorderly conduct statute is constitutional.

Appellant argues that Penal Law § 240.20 (3) offends constitutional safeguards implicating free speech, vagueness and overbreadth under both the State and Federal Constitutions (NY Const, art I, § 8; US Const 1st, 14th Amends). He particularly asserts that People v Dietze (75 NY2d 47) compels a ruling in his favor. Defendant’s various arguments are unavailing.

The challenged provision of the disorderly conduct statute provides in pertinent part:

"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: * * *
"3. In a public place, he uses abusive or obscene language, or makes an obscene gesture” (Penal Law § 240.20 [3]).

In People v Dietze (75 NY2d 47, supra), this Court held unconstitutional the former harassment statute, which provided in its pertinent part:

"A person is guilty of harassment when, with intent to harass, annoy or alarm another person: * * *
"2. In a public place, he uses abusive or obscene language, or makes an obscene gesture” (Penal Law former § 240.25 [2] [repealed]).

Defendant focuses principally upon Dietze to argue that the disorderly conduct statute is similarly infirm because the Legislature employed a parallel phrase. The analogy collapses, however, because of the critical differences in purpose, interpretation and application of these quite different penal provisions. The different treatment and result are amply supported by careful analysis and under precedents from this Court and the United States Supreme Court.

As a threshold matter, a party seeking to nullify a statute as unconstitutional must overcome the presumption of constitutionality that favors legislative enactments (People v Demperio, 86 NY2d 549, 550; People v Scalza, 76 NY2d 604, 607; Matter of Van Berkel v Power, 16 NY2d 37, 40). Simply stated, "the invalidity of the law must be demonstrated beyond a reasonable doubt” (People v Pagnotta, 25 NY2d 333, 337; see, New York v Ferber, 458 US 747, 769). Defendant fails to meet even this initial burden.

In People v Munafo (50 NY2d 326), this Court stated that "[disorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances * * *. [A] common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals. * * * And, although it has always been difficult to essay any precise definition of 'breach of the peace’ * * *, this court has equated that term with 'public inconvenience, annoyance or alarm’, the governing phrase of our current disorderly conduct statute” (id., at 330-331 [citations omitted; emphasis added]). Before that, we upheld the constitutionality of the predecessor, similarly worded disorderly conduct statute (People v Feiner, 300 NY 391, affd 340 US 315). There, defendant was convicted of disorderly conduct as a result of delivering a provocative speech from a sidewalk soapbox to a crowd that spilled out into the street, blocking traffic (id., at 395-396). As the crowd became unruly, the police asked the defendant to desist, and when he refused and persisted in his declamations, he was arrested (id., at 397). Defendant then challenged the conviction on the grounds that the statute violated his State and Federal constitutional free speech rights (id., at 399).

In upholding the constitutionality of the former disorderly conduct statute there, this Court noted that "[w]here both the audience and the speaker are inevitably proceeding toward an eruption of civil strife * * * the power and duty of the State to punish the speaker who refuses to desist after appropriate warning is clear” (People v Feiner, 300 NY 391, 400, supra). The United States Supreme Court affirmed this Court’s decision (Feiner v New York, 340 US 315, supra), noting that the defendant was "neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered” (id., at 319-320; see, Cantwell v Connecticut, 310 US 296, 308). That aspect has particular resonance and applicability to the instant case scenario. This Court, moreover, has steadfastly upheld the constitutionality of New York’s disorderly conduct statutes (People v Todaro, 26 NY2d 325, 329; People v Thomas, 23 NY2d 659, remittitur amended 23 NY2d 805; People v Turner, 17 NY2d 829).

Appellant would have us ignore or overrule the potent stare decisis effect of these four-square precedents. In addition, he tries to shift the analytical path to People v Dietze (75 NY2d 47, supra) and Chaplinsky v New Hampshire (315 US 568) and away from the solid array of decisions directly on point with respect to disorderly conduct. He argues that the disorderly conduct statute under which he stands convicted prohibits protected expression in violation of Dietze’s dictate. Defendant’s reliance is entirely misplaced as the disorderly conduct statute as interpreted by this Court does not raise the subjective speech concerns, implicated under the former harassment statute ruled upon in Dietze. In Dietze, we stated that "unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized” (75 NY2d, at 51, supra). The case, to be sure, struck down that harassment statute as unconstitutional because it prohibited speech solely upon the basis that it was abusive and individually targeted (id.). But the breadth of the quoted statement does not control or inform the analysis to dispose of the instant case.

On the other hand, the disorderly conduct statute at the heart of this case is different in purpose, language, scope and operation. Significantly, the disorderly conduct statute challenged here applies to words and conduct reinforced by a culpable mental state to create a public disturbance. The harassment statute at issue in Dietze proscribed abusive or obscene face-to-face communication directed at individuals and was held unconstitutional because it infringed upon speech beyond the "fighting words” which government is still permitted to constitutionally regulate (People v Dietze, 75 NY2d 47, 52, supra; see, Chaplinsky v New Hampshire, 315 US 568, 572, supra; Gooding v Wilson, 405 US 518, 525-526). The disorderly conduct statute at issue here does not circumscribe pure speech directed at an individual (contrast, Houston v Hill, 482 US 451, 455; Gooding v Wilson, 405 US 518, 519, supra). Rather, it is directed at words and utterances coupled with an intent to create a risk of public disorder, which the State has the authority and responsibility to prohibit, prevent and punish (see, Feiner v New York, 340 US 315, supra; People v Dietze, 75 NY2d 47, 52, supra). This statute is not overbroad on its face or in its particular application; instead, it is quite specifically and justifiably targeted.

Appellant’s further argument that the disorderly conduct statute is void for vagueness is also unsustainable as this Court has "upheld such statutes against a vagueness challenge many times” (People v Hardy, 47 NY2d 500, 505, citing People v Todaro, 26 NY2d 325, supra; People v Thomas, 23 NY2d 659, supra; People v Turner, 17 NY2d 829, supra; People v Feiner, 300 NY 391, supra). This is so because the statute, first, "provide[s] sufficient notice of what conduct is prohibited; second, the statute [is not] written in such a manner as to permit or encourage arbitrary and discriminatory enforcement” (People v Bright, 71 NY2d 376, 382). The statutory requirement that the defendant possess an intent "to cause, or recklessly create a risk of, public inconvenience, annoyance or alarm, narrows the definition, so that no inadvertent * * * act may be punished” (People v Bakolas, 59 NY2d 51, 54; contrast, People v Dietze, 75 NY2d 47, 52, supra). Further, "the objective standard of public disturbance, * * * and the narrowing effect of the fact that all of the other acts proscribed by the section are publicly offensive, permit, if they do not require” the conclusion that the statute is sufficiently definite (59 NY2d, at 54, supra). Thus, " 'citizens who desire to obey the statute will have no difficulty in understanding it’ ” (Colten v Kentucky, 407 US 104, 110, quoting Colten v Commonwealth, 467 SW2d 374, 378).

Defendant, again resorting to Dietze, argues that the statute is unconstitutional as applied to the facts of this case because his confrontation with the officer was not public, but instead constituted merely a private encounter. Based upon this theory, defendant further asserts that there is insufficient evidence to satisfy the elements of the crime. Defendant’s arguments are both unpersuasive and unsupported.

Disorderly conduct occurs when a person, with intent to cause a public annoyance or alarm in a public place, uses abusive or obscene language (Penal Law § 240.20 [3]). Defendant contends that he was convicted solely on the basis of his private, tete-a-tete with the officer — albeit on a public street— because the arresting officer testified that he initially observed no other persons when the obscene statements were uttered (see, Houston v Hill, 482 US 451, 461, supra). This frozen frame does not capture or convey fully what happened here in this barroom-sidewalk-type occurrence. The jury had plenty of evidence to weigh the whole incident — all the connected frames— and to conclude that defendant intended to cause and incite a public disturbance. Although the arresting officer testified that he did not initially observe any other persons outside the bar, he also indicated that because of the way he was turned facing the defendant, he was unable to see whether any of the patrons inside the bar or the doorway of the bar observed the opening provocative salvos. The officer further testified that immediately following the first face-off with defendant, a goodly number of curious or aroused bar patrons gathered in the doorway, necessitating the officer’s call for backup aid. From all this evidence, the jury could reasonably infer that the defendant instigated the confrontation, intending to create a public contretemps with the potentiality of a public escalation, and was, therefore, well within the penal statute’s prohibition. The fact that the defendant slipped away from the officer’s grasp and reentered the bar after the street confrontation further supports a ready inference that the defendant intended to cause a "public inconvenience, annoyance or alarm.”

Based on all the evidence of conduct, words, intent and public flare-up in the bar and on the street, a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” are unassailably present in this case and on this record (People v Bleakley, 69 NY2d 490, 495).

Our disposition of the issues presented renders unnecessary any further explication on defendant’s other arguments, which are without merit.

Accordingly, the order of the County Court should be affirmed.

Chief Judge Kaye and Judges Titone, Smith, Levine, Ciparick and Wesley concur.

Order affirmed.


author: Ciparick, J.

text:
    [680 NE2d 1197, 658 NYS2d 900]
    G. Randall Will et al., Appellants, v Peter R. Gates et al., Respondents.
    Argued March 24, 1997;
    decided May 13, 1997

      POINTS OF COUNSEL

      Sive, Paget & Riesel, P. C., New York City (Robin E. Rosenberg and Andrew J. Gershon of counsel), for appellants.

      Farley, Jutkowitz, Balint & Wiederkehr, "White Plains (Lee S. Wiederkehr of counsel), and DelBello Donnellan Weingarten & Tartaglia, L. L. P. (Jerry F. Febrdle II of counsel), for respondents.
   OPINION OF THE COURT

Ciparick, J.

Plaintiffs brought a declaratory judgment action seeking access to a right-of-way over defendants’ properties. Supreme Court granted summary judgment in defendants’ favor on the grounds of adverse possession and abandonment. The Appellate Division affirmed on the ground that any easement right plaintiffs might have had was extinguished by merger and did not reach the issues of adverse possession and abandonment. Because, on this record, defendants failed to make a sufficient showing to warrant summary judgment, we reverse.

This case involves the use of a horseshoe-shaped right-of-way in Garrison Village, located in the Town of Philipstown, Putnam County. The right-of-way, abutting properties of all the parties, is shown on map No. 32 entitled "Estate of Judge John Garrison” dated November 7, 1868 and filed in the Putnam County Clerk’s office. Garrison owned the entire plot of land abutting the right-of-way, which he created when he subdivided the property. The right-of-way consists of a northern spur running east-west to Route 9D, a southern spur running east-west to Route 9D and a north-south spur joining the easterly ends of the northern and southern spurs. The northern spur is presently known as Nelson Lane and is maintained as a public road by the Town. The southern spur traverses hilly terrain.

At issue here is the north-south spur of the horseshoe. The disputed right-of-way is approximately 700 feet long and runs along the western edge of the property on which the residence of defendants Peter and Marilyn Gates is located. A stone wall runs along the western boundary of their residential lot and intersects another stone wall running east to west near the southern end of the north-south spur. A third stone wall intersects the right-of-way near the northern end of the north-south spur. Two stone pillars and a wrought-iron gate are situated at the northern end of the north-south spur and lead to the Gates’ home which was constructed in 1881. The deed to the residential lot, acquired in 1967, expressly confers a right-of-way in the northern and southern spurs of the horseshoe as described in map No. 32. The 1967 deed did not explicitly grant a right-of-way over the north-south spur.

In 1977, plaintiffs Randall and Toni Will acquired a parcel of land abutting the southern spur of the horseshoe and in close proximity to the southern end of the north-south spur. The deed granted plaintiffs:

"A non-exclusive easement for ingress, egress and regress, in common with others, over the right of way shown on said Filed Map No. 32 for all ordinary access by foot or by vehicle between the above described premises and Route 9D.
"together with all Grantor’s right, title and interest in and to said Nelson Lane and said right of way, where they adjoin said premises to the center lines thereof.”

Also in 1977, defendants Peter and Marilyn Gates acquired from the same grantor a parcel of land situated to the west of the north-south spur of the easement. The deed contained identical language to plaintiffs’ deed granting a right-of-way, in common with others, over the horseshoe-shaped easement depicted in map No. 32.

Peter and Marilyn Gates sold the southern portion of their residential lot to defendants Swinburne-Brower and Brower in 1991. The Gates-to-Brower deed referred to the right-of-way depicted on map No. 32 but expressly restricted the Browers’ easement rights to the southern spur and extinguished any rights they would otherwise have in that portion of the north-south spur which extends over the Gates residential parcel. Likewise, Peter and Marilyn Gates waived the right to use the portion of the north-south spur which extends over the Brower property. The Gates-to-Brower deed granted:

"the right to use for all purposes * * * the right of way, in common with others over a strip of land on the southerly side of Lot no. 1 as shown on a Map of the Estate of John Garrison dated October 1, 1868 and filed in the Putnam County Clerk’s Office as Map No. 32, extending from the premises above described to Route 9D * * *
"No Easement or Right of Way for any purpose is granted or released by the Grantors herein to the Grantees, their heirs, distributees, or successors or assigns over, through or upon the remaining lands retained by the Grantors under deed to them dated July 21, 1967 * * * and no Easement or Right of Way for any purpose is reserved by the Grantors for themselves, their heirs, distributees, successors or assigns as an appurtenance to their said retained remaining lands” (emphasis in original).

After purchasing their property, defendants SwinburneBrower and Brower proceeded to open a 14-foot roadway on the southern spur of the easement extending through plaintiffs’ property. Plaintiffs brought a declaratory judgment action in Supreme Court alleging that any easement over the southern spur extending through their property had been abandoned. Supreme Court held that the easement as defined by map No. 32 continued to run with defendants’ lot and, accordingly, granted the Swinburne-Browers a right-of-way through plaintiffs property (Will v Swinburne, Sup Ct, Putnam County, Dec. 19, 1991, June 8, 1992, Hickman, J.). The judgment was not appealed.

Allegedly motivated in part by a desire to develop their property, plaintiffs then commenced the instant declaratory judgment action in Supreme Court seeking access to the north-south spur leading to Nelson Lane. Defendants interposed a counterclaim seeking to bar plaintiffs from any claim or interest in the north-south spur. Supreme Court denied plaintiffs’ motion and granted defendants’ cross motion for summary judgment dismissing the complaint, holding that plaintiffs’ interest in the north-south spur of the easement had been extinguished through abandonment. Noting that the right-of-way in the north-south spur was not expressly conveyed in Gates’ 1967 deed, that Gates’ house and other improvements were located within the north-south right-of-way, and that the property was enclosed by a wall on its western boundary, the court also held that any right plaintiffs might have had in the north-south right-of-way was lost through adverse possession.

On appeal, the Appellate Division held that any right-of-way plaintiffs might have had in the north-south spur was extinguished by merger of the dominant and servient estates. The Court also opined that plaintiffs never had an easement over the right-of-way at issue.

Preliminarily, we note that plaintiffs alleged sufficient facts to make a prima facie showing of their right to the easement at issue. An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it (the dominant estate). It is inseparable from the land and a grant of the land carries with it the grant of the easement (Western Union Tel. Co. v Shepard, 169 NY 170, 179; 49 NY Jur 2d, Easements and Licenses in Real Property, § 158, at 271). Thus, an existing easement appurtenant will pass to the grantee of a dominant estate even if the deed does not expressly refer to the easement (Tabor v Bradley, 18 NY 109, 111; 49 NY Jur 2d, Easements and Licenses in Real Property, § 159, at 272; 2 Warren’s Weed, New York Real Property, Easements, § 1.03 [1] [b] [4th ed]). An easement acquired by grant "remains as inviolate as the fee favored by the grant, unless * * * conveyed, abandoned, condemned or lost through prescription” (Gerbig v Zumpano, 7 NY2d 327, 330).

In support of their right to the easement, plaintiffs produced the 1977 deed granting them "[a] non-exclusive easement for ingress, egress and regress, in common with others, over the right of way shown on said Filed Map No. 32 for all ordinary access by foot or by vehicle between the above described premises and Route 9D.” All parties agree that filed map No. 32 depicts the horseshoe-shaped easement created by the then servient owner Judge Garrison in 1868 and it is clear that an easement may be designated by reference to a plat map (see, Huggins v Castle Estates, 36 NY2d 427, 430; Weil v Atlantic Beach Holding Corp., 1 NY2d 20, 28 [easement exists in favor of owners whose deeds refer to filed map showing easement]). Plaintiffs properly relied on the deed granting them this interest and defendants have raised no challenge to the validity of the deed. Once created, the easement would continue to pass with the dominant estate unless it was extinguished by abandonment, conveyance, condemnation or adverse possession (Gerbig v Zumpano, supra, 7 NY2d 327, 330).

Defendants argue, and the Appellate Division held, that plaintiffs’ interest in the north-south spur was extinguished by merger when Gates acquired the westerly parcel in 1977. Defendants argue that the 1977 deed conferred a dominant estate and, because Gates already owned the servient estate (the residential lot acquired in 1967) through which the north-south spur runs, the easement in the north-south spur was extinguished.

The merger doctrine proceeds from a recognition that a person cannot have an easement in his or her own land because all the uses of an easement are fully comprehended in the general right of ownership (Beekwill Realty Corp. v City of New York, 254 NY 423, 426; 2 Warren’s Weed, New York Real Property, Easements, § 3.03 [4th ed]). Consequently, when the dominant and servient estates become vested in one person, the easement terminates. At that point, the easement no longer serves a purpose and the owner may freely use the servient estate as its owner (see, Restatement of Property § 497).

Where, however, only a portion of the dominant or servient estate is acquired, there is no complete unity of title and there remain other dominant owners whose rights are inviolate. The easement rights of these owners cannot be extinguished by a conveyance to which they are not a party. An easement ceases to exist by virtue of a merger only when there is a unity of title of all the dominant and servient estates (see, 28A CJS, Easements, § 123 [b], at 307 [an easement is "not extinguished under the doctrine of merger by the acquisition by the owner of the dominant or servient estate to title to only a fractional part of the other estate”]; Restatement of Property § 497, comment c).

Because there was no proof that all of the dominant and servient estates had vested in one owner, defendants were not entitled to summary judgment on merger grounds.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that Court for a consideration of adverse possession, abandonment and any other issues raised but not previously reached.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Wesley concur.

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

       Plaintiffs and defendants Gates have other properties in the area, acquired in 1971 and 1986 respectively, which are not relevant to the issue of merger presented in this case.


author: Wesley, J.

text:
    [680 NE2d 1200, 658 NYS2d 903]
    Itri Brick & Concrete Corp. et al., Appellants, v Aetna Casualty & Surety Company, Respondent, et al., Defendants. Charles Stottlar, Plaintiff, v Ginsburg Development Corp. et al., Defendants. (And a Second and Third-Party Action.) W.C. Shopovick & Co., Inc., Fourth-Party Plaintiff, v State Insurance Fund, Fourth-Party Defendant-Respondent, and CNA Insurance Company, Fourth-Party Defendant-Appellant.
    Argued March 25, 1997;
    decided May 13, 1997

      POINTS OF COUNSEL

      Herzfeld & Rubin, P. C., New York City (David B. Hamm, Herbert Rubin and Miriam Skolnik of counsel), and James P. O’Connor for appellants in the first above-entitled action.

      Michael Majewski, P. C., Garden City (Michael Majewski and Nicole Norris Poole of counsel), for respondent in the first above-entitled action.

      Ahmuty, Demers & McManus, Albertson (Frederick B. Simpson, Debra A. Edwards and James A. Edwards of counsel), for fourth-party defendant-appellant in the second above-entitled action.

      Mark Slotkin, New York City, James P. O’Connor and Raymond C. Green for fourth-party defendant-respondent in the second above-entitled action.
   OPINION OF THE COURT

Wesley, J.

These appeals pose a question left unanswered in Brown v Two Exch. Plaza Partners (76 NY2d 172): whether, and to what extent, an indemnification agreement between a general contractor and subcontractor can be enforced where the general contractor has been found partially negligent in an action brought by an employee of the subcontractor against the general. We hold that, because the agreements in question contemplate full, rather than partial, indemnification, the agreements are unenforceable under General Obligations Law § 5-322.1 in the circumstances of these cases.

I.

Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co.

Plaintiff Itri Brick & Concrete Corp. was a masonry subcontractor on a construction project at Queens College. The general contractor on the job was a joint venture consisting of Mars Associates, Normel Construction Corp., and West Terrace Construction Corp. (MNT). Kizmann, an employee of Itri, was injured on the job, and sued MNT under theories of common-law negligence and Labor Law §§ 240 and 241. MNT in turn impleaded Itri, asserting claims for common-law indemnification and contribution, as well as contractual indemnification.

Itri made a demand to defend and indemnify upon its two insurers: the State Insurance Fund, Itri’s workers’ compensation carrier, which provided coverage for common-law indemnification and contribution claims, and Aetna, which had issued Itri a commercial general liability policy. Aetna responded that its policy did not cover the common-law claims, and that, while the policy did generally cover liability assumed by Itri under a contract or agreement, MNT’s claim for contractual indemnification would be barred under General Obligations Law § 5-322.1 if Kizmann’s injuries resulted in part from the negligence of MNT.

While the personal injury action was pending, Itri and the State Fund commenced this declaratory judgment action against Aetna demanding that Aetna partially defend and indemnify Itri. Upon a motion by Itri and the State Fund for summary judgment, Supreme Court denied the motion, searched the record and granted judgment in Aetna’s favor. The court determined that the indemnification agreement was void under General Obligations Law § 5-322.1, and that MNT’s claim for contractual indemnification against Itri was not covered by the Aetna policy. Two months later, the personal injury action settled. Shortly thereafter, Aetna and the State Fund entered into a stipulation: (1) that approved the settlement amount paid by State Fund on behalf of Itri in the personal injury action; (2) that specifically reserved the State Fund’s right to seek to reargue Itri’s coverage claim in the declaratory judgment action; and (3) that determined that MNT was 24.26% negligent, and Itri was 75.24% negligent.

Thereafter, Itri and the State Fund moved to renew and to reargue the summary judgment motion. Supreme Court denied the motion to reargue, granted the motion to renew and adhered to its previous decision, again holding that since MNT had been found partially negligent, the indemnification agreement between MNT and Itri was unenforceable under General Obligations Law § 5-322.1. Itri and the State Fund appealed. The Appellate Division unanimously affirmed, holding that, because the stipulation determined that MNT was partially negligent, the indemnification agreement was invalid under General Obligations Law § 5-322.1 and therefore there was no coverage under the applicable provision of the Aetna policy. Leave to appeal to this Court was granted by the Appellate Division.

Stottlar v Ginsburg Dev. Corp.

Plaintiff Stottlar was an employee of W.C. Shopovick & Co., Inc., a carpentry subcontractor on a construction project on which defendant Ginsburg Development Corporation was the general contractor. Stottlar fell from a plank and was injured while on the job. He then sued Ginsburg under theories of common-law negligence and Labor Law §§ 200 and 240. Ginsburg in turn impleaded Shopovick, asserting claims for common-law contribution and indemnification, as well as contractual indemnification.

Shopovick made a demand for defense and indemnification from its two insurers — the State Insurance Fund, Shopovick’s workers’ compensation insurer, and CNA Insurance Company, Shopovick’s insurer under a commercial general liability policy.* ** CNA agreed to defend Shopovick, but reserved its right to disclaim coverage on Ginsburg’s contractual indemnification claim if Ginsburg was found negligent.

At trial on the issue of liability only, the court dismissed the Labor Law § 241 (6) claim. Plaintiffs remaining causes of action were submitted to the jury. The jury determined that Ginsburg’s violation of Labor Law § 240 (1) was not a proximate cause of plaintiffs injuries. The jury returned a verdict for plaintiff on the negligence and Labor Law § 200 causes of action and determined that Shopovick was 50% negligent, Ginsburg was 35% negligent, and Stottlar was 15% negligent. Prior to a trial on plaintiff’s damages, Shopovick commenced a fourth-party action against CNA and the State Fund seeking a declaratory judgment to determine the carriers’ responsibilities under their respective policies with Shopovick. The personal injury case was ultimately settled and CNA reserved its right to seek a judicial determination of its duty to indemnify Shopovick in the fourth-party action.

CNA and the State Fund submitted an agreed statement of facts for a stipulated controversy to Supreme Court. That court held that the indemnification agreement between Ginsburg and Shopovick was unenforceable under General Obligations Law § 5-322.1, because of the jury’s apportionment of negligence to include Ginsburg. Thus, since the agreement was invalid, CNA was not liable under the provisions of its policy to indemnify Shopovick on Ginsburg’s contractual indemnification claim.

The Appellate Division reversed. Noting that General Obligations Law § 5-322.1 was intended only to preclude a contractor (Ginsburg) from seeking contractual indemnification for damages caused by the negligence of the contractor, the court went on to hold that CNA was "required to honor its contractual obligation to the extent that the [indemnification] contract requires indemnification caused by or resulting from the negligence of a party other than” Ginsburg (Stottlar v Ginsburg Dev. Corp., 229 AD2d 483, 485). The Appellate Division concluded that the contractual indemnification clause remained in effect and rendered CNA and the State Fund coinsurers. We granted CNA leave to appeal.

II.

Both agreements are drawn in extremely broad terms. The Itri/MNT agreement states that Itri "shall hold the first party [MNT] harmless from all liability * * * from claims for injuries or death from any cause while on or near the project * * * whether or not it is contended the first party contributed thereto in whole or in part” (emphasis added). The agreement imposes an indemnification obligation on Itri merely upon a determination that the claim arose from activity "while on or near the project” without regard to whether Itri or its employees were a cause of the injury and notwithstanding culpability by MNT in whole or in part.

The Ginsburg /Shopovick agreement states that Ginsburg "shall be indemnified and held harmless from any and all liability; action or claims (just or unjust), and from any and all resulting damages, expenses, costs or fees * * * made by any person * * * in connection with or resulting from the work or by reason of the operations performed on behalf of, or on the property of ginsburg development corp. by the named insured Subcontractor, his agents, servants or employees” (emphasis added). This agreement closely -parallels the language of the indemnification agreement at issue in Brown v Two Exch. Plaza Partners (supra, 76 NY2d, at 177, n 3). The agreement requires Shopovick to indemnify Ginsburg for all claims that arise "from the work”, without regard to who or what caused the injury.

The agreements here contemplate a complete rather than partial shifting of liability from the general contractor to the subcontractor. They were obviously intended to broaden the liability of the respective subcontractors, by providing for indemnification from claims for injuries; (a) "from any cause while on or near the project” (Itri), or (b) "in connection with or resulting from the work” (Stottlar) (see, Brown v Two Exch. Plaza Partners, supra, 76 NY2d, at 178). Both impose an indemnification obligation on the subcontractors without limitation in terms of the negligence of the general contractor/ owner. Indeed, in Itri, the agreement provides that the subcontractor must indemnify the general even if the general causes the injury in whole or in part.

The language, purpose and history of General Obligations Law § 5-322.1 support our determination that the agreements in both appeals are unenforceable since their full enforcement would result in the contractors being indemnified for their negligence. That statute provides that:

"[a] covenant, promise, agreement or understanding in, or in connection with * * * a contract or agreement relative to the construction, alteration, repair or maintenance of a building * * * purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable.” (General Obligations Law § 5-322.1 [1].)

The purpose of this provision was to prevent a prevalent practice in the construction industry of requiring subcontractors to assume liability by contract for the negligence of others. The Legislature concluded that such "coercive” bidding requirements unnecessarily increased the cost of construction by limiting the number of contractors able to obtain the necessary hold harmless insurance, and unfairly imposed liability on subcontractors for the negligence of others over whom they had no control. The agreements also needlessly created expensive double coverage for hold harmless or general liability insurance (see, Brown v Two Exch. Plaza Partners, supra, 76 NY2d, at 179-180, citing Mem of Assemblyman Brown, 1975 NY Legis Ann, at 311; see also, Quain v Buzzetta Constr. Corp., 69 NY2d 376, 380).

This Court’s prior involvement with this statute further supports the result we reach today. In Quevedo v City of New York (56 NY2d 150), we held that because the statute as originally enacted prohibited indemnification agreements where the negligence of the general contractor was the sole cause of the injury, nothing prohibited indemnification agreements in cases of joint fault (56 NY2d, at 156). We noted in Brown that the Legislature amended the statute in 1981 "to prohibit indemnity agreements in which owners or contractors sought to pass along the risks for their own negligent actions to other contractors or subcontractors, even if the accident was caused only in part by the owner’s or contractor’s negligence” (Brown v Two Exch. Plaza Partners, supra, 76 NY2d, at 180, citing Mem of Assemblyman Goldstein in support of proposed amendment, 1981 NY Legis Ann, at 502). By prohibiting indemnification agreements where the negligence of the general/owner caused the injury "in whole or in part”, the Legislature clearly signalled its intention to cover the agreements that are before us.

Both Itri and Shopovick also contend that section 5-322.1 does not bar enforcement of these agreements altogether, but merely bars enforcement of the contract claims to the extent that they would require indemnification for that portion of the awards attributable to the negligence of the general contractors. The statute provides that an agreement "purporting to indemnify or hold harmless the promisee against liability for damage * * * caused by or resulting from the negligence of the promisee * * * is against public policy and is void and unenforceable” (General Obligations Law § 5-322.1 [1]). As we noted earlier, the agreements contemplate full indemnification, even in cases where the general contractor is found to be negligent, and contain no language limiting the subcontractor’s obligation to that permitted by law or to the subcontractor’s negligence. Section 5-322.1 makes no attempt to salvage that part of an indemnification contract that would require a subcontractor to indemnify a general for the subcontractor’s negligence only. We conclude that the statute applies to the indemnification agreements in their entirety where, as here, the general contractor /promisee is actually found to have been negligent.

We also reject the State Fund’s argument that partial enforcement of contractual indemnification agreements under these circumstances is specifically contemplated by the second sentence of section 5-322.1 (1), which at the time of these actions, provided that:

"[t]his subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisee is partially negligent.”

This portion of the statute was intended to allow indemnification agreements where the subcontractor, although not negligent, agrees to indemnify the general for the negligence of third parties. In 1993, the section was amended and "promisor” was substituted for the final "promisee” in this last sentence. An amendment to a statute may be used to divine the legislative intent with regard to the original law (Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25, affd 51 NY2d 970). The legislative history indicates that this amendment corrected what the Legislature considered a mere typographical error in the former statute (see, Mem of Assemblyman Lasher, 1993 NY Legis Ann, at 56).

Moreover, whether or not section 5-322.1 would allow enforcement of a "partial indemnification” agreement is irrelevant here; the agreements in these cases explicitly provided for complete indemnification and there were findings that the general contractor was negligent. The question whether a negligent contractor /promisee could enforce an indemnification agreement, notwithstanding section 5-322.1, so long as the agreement did not purport to indemnify the contractor for its own negligence is not before us.

Accordingly, in Itri, the order of the Appellate Division should be affirmed, with costs, and in Stottlar, the order of the Appellate Division should'be reversed, with costs, and the judgment of Supreme Court reinstated.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur; Judge Titone taking no part.

In Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co.: Order affirmed, with costs.

In Stottlar v Ginsburg Dev. Corp.: Order reversed, with costs, and judgment of Supreme Court, Westchester County, reinstated.

      . The indemnification agreement between MNT and Itri provided that: "The second party [Itri] shall hold the first party [MNT] harmless from all liability, loss, cost or damage from claims for injuries or death from any cause, while on or near the project, of its employees or the employees of its subcontractors, or by reason or claims of any person or persons for injuries to person or property, from any cause occasioned in whole or in part by any act or omission of the second party, its representatives, employees, subcontractors or suppliers and whether or not it is contended the first party contributed thereto in whole or in part, or was responsible therefor by reason of non-delegable duty.”

      . Itri’s policy with Aetna excludes bodily injuries to "[a]n employee of - the insured arising out of and in the course of employment by the insured.” There is an exception to the exclusion, however, for "liability assumed by the insured under a contract or agreement.”

      . The indemnification agreement between Ginsburg and Shopovick provided that: "ginsburg development corp. and the owner of the property * ** * shall be indemnified and held harmless from any and all liability, action or claims (just or unjust) and from any and all resulting damages, ex penses, costs or fees (including attorney’s fees), made by any person, whether employees of the Subcontractor or otherwise, (including death resulting therefrom) and on account of injuries and damages to all property or violations of statutes and ordinances or municipal rules and regulations, in connection with or resulting from the work or by reason of the operations performed on behalf of or on the property of ginsburg development corp. by the named insured Subcontractor, his agents, servants or employees.”

      . The CNA policy is virtually identical to the one at issue in Itri. There is some confusion in the record with regard to the identity of the carrier that provided this policy to Shopovick — Transcontinental Insurance Company or CNA (a group of carriers including Transcontinental). For clarity, we refer to the carrier as CNA.

      . We would note that without a finding of negligence on the part of the general, the agreements as applied would not run afoul of the proscriptions of General Obligations Law § 5-322.1 (see, Hawthorne v South Bronx Community Corp., 78 NY2d 433; Brown v Two Exch. Plaza Partners , 76 NY2d 172, 179, supra).


text:
    [675 NE2d 1222, 653 NYS2d 270]
    In the Matter of Fred Cleveland.
    Decided November 1, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Fred Cleveland is suspended, with pay, effective immediately, from his office of Town Justice of the Town of Kortright, Delaware County, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick. Taking no part: Judge Smith.


text:
    [675 NE2d 455, 652 NYS2d 720]
    Kitz Corp., Plaintiff, v Transcon Shipping Specialists, Inc., Defendant and Third-Party Plaintiff-Respondent. J & J Air Freight Trucking Co., Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendants.
    Submitted October 15, 1996;
    decided November 14, 1996
    APPEARANCES OF COUNSEL

      Schindel, Farman & Lipsius, L. L. P., New York City (Jean M. Gardner and Allen M. Eisenberg of counsel), for appellant.

      Schwartzman Weinstock Garelik & Mann, P. C, New York City (Donald A. Pitofsky of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Kitz Corp., a fine arts collector in Japan, purchased a lamp valued at $886,000 from Christie, Manson and Woods auction house in New York City. Christie’s hired Transcon Shipping Specialists to crate the lamp in preparation for its shipment to Japan, and employed Radix Group International to arrange for its delivery. Radix engaged the services of appellant, J & J Air Freight Trucking Co., to transport the lamp from Transcon’s facility in the Bronx to the Nippon Cargo Airways terminal at John F. Kennedy International Airport in Queens.

The lamp arrived in Japan damaged. Kitz, through its insurer, sued Transcon for breach of contract and negligence, and Transcon in turn sought contribution from Radix, J & J and Nippon. J & J moved for partial summary judgment on the ground that its liability to Transcon was limited to $50 in accordance with its contract of carriage with Radix.

The issue being whether the $50 limitation of liability binds Transcon, and there being no other issue before us regarding J & J’s liability on Transcon’s third-party action, we agree that the motion for summary judgment was properly denied. Transcon had no contract with J & J, had no ongoing relationship with J & J, and played no part in its selection. There was no proof that Transcon was aware of the limitation contained in J & J’s contract of carriage with Radix. J & J’s limitation of liability clause therefore cannot be enforced against Transcon. That Nippon’s liability may be limited to $671.18 by reason of the Warsaw Convention, applicable to international transportation, is immaterial to J & J’s intrastate shipment and to the resolution of the narrow legal issue presented to us on this certified question appeal.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur in memorandum; Judge Titone taking no part.

Order affirmed, etc.


text:
    [675 NE2d 1222, 653 NYS2d 270]
    Francisco Merino, Appellant, v New York City Transit Authority, Respondent.
    Argued October 16, 1996;
    decided November 14, 1996
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac and Alan M. Shapey of counsel), for appellant.

      Lawrence A. Silver, New York City, and Wallace D. Gossett for respondent.
   OPINION OF THE COURT

Memorandum.

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

On April 9, 1989, after leaving work at 3:00 a.m. and consuming several beers, plaintiff went to the 183rd Street subway-station in the Bronx. Dizzy and affected by the alcohol, plaintiff, who had been standing at the edge of the platform, found himself on the tracks as a train approached. He was struck by the train and suffered various injuries including the loss of his left arm.

In his suit against the New York City Transit Authority plaintiff alleged several theories of negligence. After trial the court set aside a verdict in plaintiffs favor and ordered a new trial, and the Appellate Division affirmed (183 AD2d 458). After a second plaintiffs verdict, a divided Appellate Division reversed and dismissed the complaint (218 AD2d 451). The court concluded, in essence, that plaintiff had failed to establish the Transit Authority’s negligence in lighting the accident site and causation.

As the Appellate Division correctly determined, plaintiff failed to show that defendant breached any duty owed to him. Plaintiff, moreover, failed to establish that an internal Transit Authority station planning guide, on which his expert relied to claim the station had inadequate lighting, constituted a standard of reasonable care applicable to this station (see, Schwartz v New York State Thruway Auth., 95 AD2d 928, affd 61 NY2d 955). Even if plaintiff had proven breach of a duty, he failed to show that the defendant’s alleged negligence was a substantial factor in causing his injury (Derdiarian v Felix Contr. Co., 51 NY2d 308, 315).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur; Judge Smith taking no part.

Order affirmed, with costs, in a memorandum.


text:
    [675 NE2d 1222, 653 NYS2d 270]
    In the Matter of Robert A. Straniere, Individually and as Assemblyman of the 61st Assembly District of New York, et al., Appellants, v Sheldon Silver, as Speaker of the State Assembly, et al., Respondents.
    Argued October 16, 1996;
    decided November 14, 1996

      APPEARANCES OF COUNSEL

      Robert A. Straniere and Eric N. Vitaliano, Staten Island, pro se, and Raymond A. Fasano, Staten Island, for Robert A. Straniere and another, appellants.

      Weil, Gotshal & Manges, L. L. P., New York City (Steven Alan Reiss, David Jason Lender and Jacqueline Haberfeld of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Thomas E. Mercure at the Appellate Division (218 AD2d 80).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [675 NE2d 457, 652 NYS2d 722]
    In the Matter of Earl M. Kabnick, Appellant, v Mark Chassin, as Commissioner of the New York State Department of Health, et al., Respondents.
    Argued October 8, 1996;
    decided November 14, 1996

      APPEARANCES OF COUNSEL

      Rubin & Shang, Albany (Carmen Shang and Gayle A. O’Brien of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, New York City (Raymond J. Foley, Barbara Gott Billet and Thomas D. Hughes of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Having previously been convicted of making false claims in connection with the treatment of Medicaid patients, petitioner was found guilty of professional misconduct by the Hearing Committee of the Department of Health’s Board for Professional Medical Conduct. Petitioner thereafter appealed to the Administrative Review Board seeking a reduction in the two-year suspension and $10,000 fine that the Hearing Committee had imposed. Although no cross appeal had been taken, the Board not only rejected petitioner’s request, but also used the occasion of petitioner’s appeal to impose a harsher sanction after concluding that the Committee’s penalty was too lenient in light of seriousness of petitioner’s offense. The present CPLR article 78 proceeding ensued.

We agree with the Appellate Division that, having found the Hearing Committee’s penalty to be inadequate, the Administrative Review Board possessed the authority to impose a more severe sanction of its own without the need to remit the matter to the Committee. Public Health Law § 230-c (4) (b), which requires the Board to "review * * * whether or not the penalty is appropriate,” does not contain language suggesting that the Board lacks the power to remedy the situation itself when it deems a penalty imposed by the Committee inappropriate. Moreover, the provision is part of a statutory scheme that was enacted in 1991 " '[t]o improve the efficiency of the * * * disciplinary process’ ” (Matter of Wolkoff v Chassin, 89 NY2d 250, 253 [decided herewith]; see, Mem of State Exec Dept, 1991 McKinney’s Session Laws of NY, at 2077; L 1991, ch 606). It would frustrate this legislative goal if section 230-c were construed to require the Board to remit to the Committee after having found the sanction imposed by the Committee inappropriate.

We also reject petitioner’s argument that the Board should not have increased his penalty sua sponte on his appeal from the Hearing Committee’s determination. The applicable statutory provisions require the Board to review disciplinary penalties for "appropriateness” — a formulation suggesting a level of discretionary authority broad enough to include the power to take sua sponte action when a misconduct case is brought to the Board through the section 230-c appeal mechanism. Further, contrary to petitioner’s contentions, due process does not preclude the Board from using the occasion of a disciplined professional’s appeal to increase the severity of a sanction imposed below (cf., Matter of Shilling, 51 NY2d 397).

We have examined petitioner’s remaining contentions and find them to be without merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Judgment affirmed, with costs, in a memorandum.


text:
    [675 NE2d 1223, 653 NYS2d 271]
    In the Matter of Tug Buster Bouchard Corporation et al., Respondents-Appellants, v James W. Wetzler, as Commissioner of the New York State Department of Taxation and Finance, Appellant-Respondent.
    Argued October 8, 1996;
    decided November 14, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Andrew D. Bing and Peter H. Schiff of counsel), for appellant-respondent.

      Schulz & Associates, L.L.C., Melville (Thomas P. Schulz of counsel), for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to petitioners payable by respondent.

Inasmuch as the respondent State explicitly conceded the unconstitutionality of the Petroleum Business Tax regime as applied to petitioners, we affirm the decision of the Appellate Division (217 AD2d 192) and conclude that we need decide nothing more with respect to this case.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    [675 NE2d 458, 652 NYS2d 723]
    Paul Klein et al., Respondents, v City of New York, Defendant and Third-Party Plaintiff-Appellant. Michael Mazzeo Electric Co., Third-Party Defendant-Appellant.
    Argued October 16, 1996;
    decided November 14, 1996

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Elaine R. Witkoff and Larry A. Sonnenshein of counsel), for City of New York, appellant.

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Michael L. Boulhosa and John Doody of counsel), for Michael Mazzeo Electric Co., appellant.

      Ginsberg & Broome, P. C., New York City (Robert M. Ginsberg of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action pursuant to section 240 (1) of the Labor Law after sustaining personal injuries in an accident which plaintiff alleged occurred when the ladder which he had ascended slipped out from under him causing him to fall. The room where the accident occurred had been flooded a few days before the accident with "air scubber water” which defendant conceded could have some degree of greasiness, slickness or slipperiness. Plaintiff, who was the sole witness to the accident, testified that although the room appeared clean to him when he entered, after his fall, he observed a film or "gunk” on the floor where he had placed the ladder.

Labor Law § 240 (1) requires that safety devices such as ladders be so "constructed, placed and operated as to give proper protection” to a worker. "[T]he legislative history of the Labor Law, particularly sections 240 and 241, makes clear the Legislature’s intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520).

Plaintiff has established a prima facie case that defendant violated Labor Law § 240 (1) by failing to ensure the proper placement of the ladder due to the condition of the floor (see, Ferra v County of Wayne, 147 AD2d 964). Since neither the defendant nor third-party defendant has presented any evidence of a triable issue of fact relating to the prima facie case or to plaintiff’s credibility, summary judgment was properly awarded to the plaintiff.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order affirmed, etc.


text:
    Avram Iusan et al., Appellants, v City of New York et al., Respondents.
    Submitted August 19, 1996;
    decided November 14, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Joan C. Lipin, Appellant, v Robert M. Bender, Jr., et al., Respondents.
    Submitted June 24, 1996;
    decided November 14, 1996
   Motion, insofar as it seeks reconsideration of this Court’s January 11, 1996 order, dismissed as untimely [see, 87 NY2d 911]; motion, insofar as it seeks reargument of appellant’s motion for leave to appeal decided by order of the Court of Appeals dated May 2, 1996, denied, with $100 costs and necessary reproduction disbursements [see, 88 NY2d 866]. Cross motion by respondents for sanctions denied.

Judge Ciparick taking no part.


text:
    In the Matter of Elaine C. Paris, Respondent, v Stuart A. Paris, Appellant.
    Submitted August 5, 1996;
    decided November 14, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order entered April 1, 1996 that affirmed Family Court’s denial of appellant’s petition for a downward modification of child support, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order sought to be appealed from and the June 13, 1996 Family Court Hearing Examiner’s order do not finally determine the proceeding commenced by petitioner-respondent within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Charles E. Ryan, Appellant.
    Submitted November 4, 1996;
    decided November 14, 1996
   Motion for stay, bail, etc., dismissed upon the ground that a motion for such relief must be made to the Judge who "has received an application for a certificate granting a defendant leave to appeal to the court of appeals” (CPL 460.60).


text:
    [675 NE2d 459, 652 NYS2d 724]
    George Adimey et al., Appellants, v Erie County Industrial Development Agency, Respondent.
    Argued October 8, 1996;
    decided November 19, 1996

      APPEARANCES OF COUNSEL

      Paul William Beltz, P. C, Buffalo (Catherine M. Beltz of counsel), for appellants.

      Smith, Murphy & Schoepperle, LLP, Buffalo (Frank G. Godson and Lynn D. Gates of counsel), for respondent.
   OPINION OF THE COURT

Order modified, without costs, by reinstating plaintiff’s Labor Law § 240 (1) cause of action and, as so modified, affirmed, for the reasons stated in the dissenting in part memorandum at the Appellate Division (226 AD2d 1053).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [675 NE2d 460, 652 NYS2d 725]
    The People of the State of New York, Respondent, v David Holmes, Also Known as Eddie Estalo, Appellant.
    Decided November 19, 1996

      APPEARANCES OF COUNSEL

      Robert M. O’Leary, Public Defender of Broome County, Binghamton (William L. Brown of counsel), for appellant.

      Gerald F. Mollen, District Attorney of Broome County, Binghamton (Carol A. Cocchiola of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After being indicted for criminal possession of a controlled substance in the third and fifth degrees, defendant pleaded guilty to criminal possession of a controlled substance in the third degree. He falsely represented to the trial court his name and age as 19 years. The trial court granted defendant’s request to be released pending sentencing, upon the condition that he appear on a date certain. He failed to do so and a bench warrant was issued. By then, he was over 16 years of age.

Defendant was recaptured about seven months later and was charged with bail jumping in the first degree. The trial court accepted the withdrawal of defendant’s guilty plea to the drug charge because defendant’s birth certificate established that he was under 16 years of age at the time the possession crime was alleged to have been committed. Defendant then pleaded guilty again, this time to the charge of bail jumping in the first degree. He appealed this conviction and the Appellate Division affirmed, holding that the County Court had jurisdiction. The dissenting Justice at the Appellate Division granted permission to appeal to this Court.

Defendant argues that once the defense of infancy was raised with respect to the predicate criminal charges, the trial court was divested also of jurisdiction over the subsequent bail jumping charge. Defendant is incorrect. The status of pending felony charges has no such legal effect upon criminal liability for bail jumping (see, People v Eiffel, 81 NY2d 480, 483).

Defendant’s assertion fails to appreciate the theoretical and as-applied effect of infancy upon a pending criminal proceeding. Infancy is an ordinary defense that must be raised by the defendant (Penal Law § 30.00 [3]). Not only did defendant not raise this defense at the time he pleaded guilty to the underlying charge, he also falsely represented himself and his age to the trial court. Therefore, at the time the defendant violated the court’s appearance order and did not materialize for sentencing, the court still had effective jurisdiction over him for purposes of the bail jumping charge, committed when he was over 16 years of age.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    [675 NE2d 461, 652 NYS2d 726]
    Albert J. Millus, Respondent, v Newsday, Inc., et al., Appellants.
    Argued October 8, 1996;
    decided November 19, 1996

      APPEARANCES OF COUNSEL

      Gibson, Dunn & Crutcher, New York City (Robert D. Sack, Mitchell A. Karlan and Preeta D. Bansal of counsel), and Carolyn Schurr for appellants.

      Paul F. Millus, New York City, Albert J. Millus, pro se, and Steven J. Millus for Albert J. Millus, respondent.

      Adam Liptak, New York City, Eve B. Burton and Stuart D. Karle for The New York Times Company and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants’ motion for summary judgment granted, the complaint dismissed, and the certified question answered in the negative.

Plaintiff commenced this defamation suit against defendants for publishing an allegedly libelous statement about him in the January 24, 1992 issue of New York Newsday. The statement at issue, which appeared in an editorial evaluating and endorsing various candidates for two New York State Assembly positions, declared that the opposing candidate "is running here against [plaintiff], who admits he doesn’t expect to win and is relieved by the prospect.” Plaintiff does not dispute that when asked if he wanted to win, he replied that he had two children in college and that the salary of an Assembly member was $57,000 a year. However, plaintiff denies stating that he would be relieved if he lost the election.

Defendants moved for summary judgment. Supreme Court granted the motion and dismissed the complaint. The Appellate Division, however, reversed the order of Supreme Court and reinstated the complaint. Defendants’ request for leave to appeal to this Court was granted by the Appellate Division which certified the question, "Was the order of this Court, which reversed the order of the Supreme Court, properly made?”

We reject the contention that defendants’ use of "admits” renders the allegedly defamatory statement one of fact rather than an opinion as a matter of law. Whether a potentially actionable statement is one of fact or opinion is a question of law (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381), and depends on "whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact” (Brian v Richardson, 87 NY2d 46, 52).

When viewed within the context of the editorial as a whole, we agree with Supreme Court that a reasonable reader would conclude that the statement at issue is an opinion (see, Brian, supra; Immuno AG. v Moor-Jankowski, 77 NY2d 235, cert denied 500 US 954). Apart from the appearance of the statement on the editorial page of Newsday, surrounded by other opinion pieces, the tenor of the editorial (which included an assertion that plaintiff "hasn’t a clue about government”) alerted the reader that the piece contained expressions of opinion. Moreover, defendants did not quote plaintiff but chose instead to use the word "admits,” which in context indicates that some interpretation of plaintiff’s words occurred. Since opinions may not be subject to private damage actions, summary judgment should have been awarded to defendants (see, Rinaldi, supra, at 380-381).

Plaintiff, a public figure, has also failed to demonstrate, with convincing clarity, that defendants acted with actual malice— that is, with knowledge that the allegedly defamatory statement was false or with reckless disregard for the truth or falsity of the statement (Rinaldi, supra, at 379; New York Times Co. v Sullivan, 376 US 254, 279-280, 285-286). The substitution of "admits” in the published version of the editorial, for "seems,” which appeared in an earlier draft, does not, by itself, demonstrate that defendant acted with reckless disregard for the truth of the statement or with the knowledge that the statement was untrue.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [675 NE2d 463, 652 NYS2d 728]
    The People of the State of New York, Respondent, v Michael Toliver, Appellant.
    Argued October 9, 1996;
    decided November 19, 1996

      APPEARANCES OF COUNSEL

      Simpson Thacker & Bartlett, New York City (Lawrence M. Young of counsel), Whitney Tymas, Richard Greenberg and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was arrested and charged with sodomy in the second degree (Penal Law § 130.45). The first trial on the indictment resulted in a hung jury. Upon retrial, the jury convicted defendant as charged. Thereafter, defendant was sentenced as a predicate felon to an indeterminate prison term of 2xh years to 5 years. Defendant served 3xh years of this term and is currently on parole.

On appeal, defendant argues that reversal of his conviction is required due to the Trial Judge’s absence from the courtroom during the prosecutor’s questioning of the prospective jurors.

The presence of and supervision by a Judge constitutes an integral component of the right to a jury trial (People v Ahmed, 66 NY2d 307, 311-312). Since the selection of the jury is part of the criminal trial (see, People v Velasco, 77 NY2d 469, 472; People v Mullen, 44 NY2d 1, 4), a defendant has a fundamental right to have a Judge preside over and supervise the voir dire proceedings while prospective jurors are being questioned regarding their qualifications. A Judge who relinquishes control over the proceedings or delegates the duty to supervise deprives a defendant of the right to a trial by jury, requiring reversal (see, e.g., People v Torres, 72 NY2d 1007, 1008-1009; People v Ahmed, 66 NY2d, at 311-312, supra; see also, People v Parisi, 276 NY 97, 99).

Here, the Judge’s absence from portions of the actual voir dire examination of jurors by counsel violated these fundamental precepts. In the end, it is the Judge who is the ultimate arbiter of a prospective juror’s fitness to serve (see, CPL 270.20; see also, People v Payne, 88 NY2d 172; People v Allen, 86 NY2d 101).

Nor may the Judge’s absence from the trial be excused on the ground that this record does not reflect any objectionable conduct or practice by counsel in the relevant time period when, in fact, the record reflects that the Judge absented himself while the prosecutor was questioning prospective jurors.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    B & H Associates, Doing Business as Prudential Long Island Realty, et al., Respondents, v John Buscemi et al., Appellants.
    Submitted September 16, 1996;
    decided November 19, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Christine Galas, Respondent, v Carol A. Niznik, Formerly Known as Carol A. Walter, Appellant.
    Submitted November 12, 1996;
    decided November 19, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Michael Murray, Respondent, v Rudolf Bass, Inc., Appellant.
    Submitted August 12, 1996;
    decided November 19, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the denial of appellant’s motion to renew, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Ahmad Shabrawy, Appellant, v Ocean Ships, Inc., Respondent.
    Submitted September 23, 1996;
    decided November 19, 1996
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see, Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    [675 NE2d 464, 652 NYS2d 729]
    In the Matter of William C. Young et al., Appellants, v Board of Trustees of the Village of Blasdell et al., Respondents.
    Argued October 9, 1996;
    decided November 21, 1996

      APPEARANCES OF COUNSEL

      Arthur J. Giacalone, East Aurora, for appellants.

      Corey J. Hogan & Associates, Amherst (Tracy Scott Harrienger of counsel), for Blasdell Development Group, Inc., respondent.

      Lois V. Kelly, Village Attorney, Blasdell, for Board of Trustees of Village of Blasdell, respondent.
   Memorandum.

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

In December of 1993, respondent Board of Trustees adopted a resolution approving a lease of property to respondent Blasdell Development Group for the purpose of constructing and operating a garbage transfer facility or other similar use or purpose. The Village and Blasdell Development executed the lease on December 13, 1993. Thereafter, Blasdell Development submitted a solid waste permit application to the Department of Environmental Conservation (DEC) and the Department suggested that the Village designate itself as lead agency for the State Environmental Quality Review Act (SEQRA) review of the project. Respondent Board of Trustees did so by resolution, conducted a SEQRA review, and resolved, in September of 1994, to issue a negative declaration.

In January of 1995, petitioners commenced this CPLR article 78 proceeding and declaratory judgment action challenging the municipality’s compliance with SEQRA. Their petition demanded judgment rescinding and nullifying the Board’s resolution of December 1, 1993, a declaration that the lease executed December 13, 1993 is void ab initio and judgment rescinding and nullifying the negative declaration of September 1994. We agree with the Appellate Division that the challenge to the validity of the resolution approving the lease, and thus the validity of the lease itself, is time barred.

The basis of petitioners’ complaint is respondents’ noncompliance with SEQRA, and accordingly, the four-month Statute of Limitations applicable to allegations of SEQRA violations applies (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203; CPLR 217). To determine when the statute was triggered, the Appellate Division properly ascertained what actions petitioners sought to review (see, Matter of Monteiro v Town of Colonie, 158 AD2d 246, 249). Here, petitioners contended in their petition that the Village violated SEQRA twice — when it resolved to approve the lease prior to conducting any review of the environmental impact of the waste transfer facility, and again when it resolved to issue a negative declaration upon allegedly inadequate SEQRA review. They demanded nullification of the separate actions taken by the Board in December of 1993 and September of 1994.

With respect to the December 1993 action of the Board, the Statute of Limitations was triggered when the Board committed itself to "a definite course of future decisions” (6 NYCRR 617.2 [b] [2], [3]; see, Matter of Save the Pine Bush v City of Albany, supra, 70 NY2d, at 203). That occurred when the Board of Trustees resolved to approve the lease and certainly no later than when the lease was executed in December of 1993. At that point, respondent Board’s decision-making process with respect to the project was complete and petitioners became aggrieved by the SEQRA violation of which they complain — the Village’s approval of a lease for a waste transfer station without having conducted a SEQRA review (see, 6 NYCRR 617.3 [a]). Though petitioners may also have been aggrieved by the subsequent SEQRA review upon which the negative declaration was based, that action did not serve to toll the statutory period and thereby enable them to challenge the earlier resolution and lease (cf., Matter of Wing v Coyne, 129 AD2d 213, 217).

Alternatively, petitioners contend that the September 1994 resolution "renewed” the Statute of Limitations because it was a "fresh and new determination” of the project’s environmental impact. The contention is without merit because the resolution to adopt the negative declaration was the initial SEQRA declaration; it was not issued following reconsideration of the project’s environmental impact (compare, Chase v Board of Educ., 188 AD2d 192).

Accordingly, the Appellate Division correctly concluded that petitioners’ challenge to respondents’ actions in December of 1993 is untimely.

Insofar as petitioners challenge the Appellate Division’s determination that the negative declaration was not ripe for review, that issue has been rendered moot. The Appellate Division, in the interests of judicial economy, determined that the Village lacked jurisdiction to serve as "lead agency” for the SEQRA review related to respondent Blasdell Development Group’s application to the DEC for a permit to operate the waste transfer facility. Thereafter, and in apparent response to the decision of the Appellate Division, the DEC reestablished itself as "lead agency” for SEQRA review. That agency will eventually make a new determination of environmental impact pursuant to SEQRA. Therefore, under the circumstances presented, the challenge to the Board’s negative declaration is moot.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ceparick concur.

Order affirmed, with costs, in a memorandum.


text:
    [675 NE2d 1225, 653 NYS2d 273]
    Vanessa Overton, as Administratrix of the Estate of Kasean S. Overton, Deceased, Respondent, v City of New York, Appellant.
    Decided November 21, 1996
    APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella of counsel), for appellant.

      Panken, Besterman, Winer, Becker & Sherman, LLP, New York City (Howard B. Sherman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Even though it is uncontroverted that on the day decedent drowned in a pool owned and operated by defendant there were fewer lifeguards than required by New York State Sanitary Code (10 NYCRR) § 6-1.23 and New York City Health Code (24 RCNY) § 165.21 (f), plaintiff failed to establish that the violation of these provisions was a proximate cause of her infant son’s fatal accident.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    George Moore, Respondent, v County of Clinton et al., Defendants, and Sher-Don Associates, Inc., et al., Appellants. (And Another Related Action.)
    Submitted August 19, 1996;
    decided November 21, 1996
   Motion for leave to appeal denied. Cross motion for sanctions, etc., denied.


text:
    [675 NE2d 466, 652 NYS2d 731]
    Concetta Guariglia et al., Appellants, v Blima Homes, Inc., Respondent, et al., Defendants.
    Argued October 17, 1996;
    decided November 26, 1996

      APPEARANCES OF COUNSEL

      Joseph P. Grancio, Brooklyn, for appellants.

      Newman & Berger, New York City (Marc Z. Newman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs sought to establish legal title by adverse possession to an enclosed 10 feet by 40 feet strip of the parcel adjoining their property (acquired in 1977) on its westerly border. Defendant Blima Homes, Inc., the record holder of legal title to the entire adjoining parcel since 1984, and its predecessors in title, are presumed to have been possessed of the disputed strip, and plaintiffs’ occupancy is presumed to have been subordinate, not hostile, to legal title (RPAPL 311; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 120, appeal dismissed 58 NY2d 824).

Moreover, the October 28, 1982 agreement entered into by plaintiff Concetta Guariglia regarding acquisition of the westerly adjoining parcel (now owned by Blima) from the State of New York and plaintiffs’ permissive use of the strip in question thereafter, constituted an acknowledgement that actual ownership rested in others. The agreement thus negated an essential element of plaintiffs’ adverse possession claim arising out of their occupancy of a portion of Blima’s parcel during the statutory period (Van Gorder v Masterplanned, Inc., 78 NY2d 1106, 1108; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra, at 123). While the fatal effect of this acknowledgement upon plaintiffs’ claim could have been overcome by establishing that plaintiffs’ predecessors in interest to their property had adversely possessed the strip for the statutory period (see, Di Leo v Pecksto Holding Corp., 304 NY 505, 514; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra, at 124), plaintiffs failed to submit proof in admissible form to substantiate that contention. Thus, summary judgment dismissing their cause of action against Blima was properly granted.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    Marvin Bombard, Appellant, v Central Hudson Gas and Electric Company, Respondent, et al., Defendant. (And Two Third-Party Actions.)
    Submitted September 23, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to amend his complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Arlene M. Carella, Respondent, v Charles E. Collins, III, et al., Appellants.
    Submitted July 29, 1996;
    decided November 26, 1996
   On the Court’s own motion, appeals by appellants Collins and King dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motions for leave to appeal by appellants Collins and King denied.


text:
    In the Matter of Donald Clarizio, Petitioner, v People of the State of New York, Respondent, and George Semkus, Appellant.
    Submitted November 12, 1996;
    decided November 26, 1996
   Appeal, insofar as taken from that portion of the Appellate Division order that denied appellant’s motion for poor person relief, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal, insqfar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Rebecca T. Doty, Appellant, v Eastman Kodak Company et al., Respondents, et al., Defendant.
    Submitted September 3, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal as against defendant Cam-Ful Industries, Inc., dismissed upon the ground that as to that party, the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    First Federal Savings & Loan Association of Rochester, Respondent, v Carol A. Niznik, Formerly Known as Carol A. Walter, Appellant, et al., Defendant.
    Submitted September 16, 1996;
    decided November 26, 1996
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for a stay dismissed as academic.


text:
    Thomas R. Florio et al., Appellants, v City of New York et al., Defendants, and Tishman Construction Company of New York, Inc., Respondent.
    Submitted August 19, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellants’ motion to amend their complaint, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Ulysses Frager, Appellant, v TransWorld Airlines, Inc., Respondent.
    Submitted September 30, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument, or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Deborah A. Heller et al., Appellants, v Coca-Cola Company et al., Respondents.
    Submitted September 30, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion for reargument or renewal, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.