author: Wachtler, J.

text:
    In the Matter of Trump-Equitable Fifth Avenue Company, Appellant, v Anthony B. Gliedman, Individually and as Commissioner of the Department of Housing Preservation and Development of the City of New York, Respondent.
    Argued November 10, 1982
    decided December 14, 1982

      POINTS OF COUNSEL

      Milton S. Gould and Roy M. Cohn for appellant.
    I. The court below exceeded its authority in failing to review respondent’s action on the grounds invoked by respondent and substituting its own bases for sustaining respondent’s action. (Burlington Truck Lines v United States, 371 US 156; Securities Comm. v Chenery Corp., 332 US 194; United States v Kane, 602 F2d 490; Matter of Barry v O’Connell, 303 NY 46; Matter of Stern, Simms & Stern v Joy, 48 AD2d 788; Matter of Golisano v Town Bd. of Town of Macedon, 31 AD2d 85; Matter of Blum v D’Angelo, 15 AD2d 909.) II. New York City Department of Housing Preservation and Development Regulation No. 4(b) (iii) (C) defining “underutilized” land as land improved with a functionally obsolete building is an improper administrative exercise of legislative power and totally contrary to the legislative mandate. (Matter of County of Suffolk [C. J. Van Bourgondien, Inc.], 47 NY2d 507; Matter of Putnam Theatrical Corp. v Gingold, 16 AD2d 413; Matter of Rosenbluth v Finkelstein, 300 NY 402; Kurcsics v Merchants Mut. Ins. Co.„ 49 NY2d 451; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Jones v Berman, 37 NY2d 42; Matter of Harbolic v Berger, 43 NY2d 102; Matter of Kasper v O’Connell, 38 Misc 2d 3; Teleon Realty Corp. v City of New York, 88 Misc 2d 767, 68 AD2d 858, 50 NY2d 824; Matter of National Elevator Ind. v New York State Tax Comm., 65 AD2d 304, 49 NY2d 538; Brown v University of State of N. Y., 242 App Div 85, 266 NY 598.) III. All of the evidence in the record establishes that the Trump Tower site was under-utilized on October 1, 1971, and was occupied by a functionally obsolete building. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174; Matter of County of Suffolk [C. J. Van Bourgondien, Inc.], 47 NY2d 507; Matter of Schwab v McElligott, 282 NY 182; Matter of Ullian v Town Bd. of Town of Hempstead, 68 Misc 2d 393, 38 AD2d 850; Ryan v Finegan, 166 Misc 548, 253 App Div 713; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 32 NY2d 796, cert den sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; Matter of Fitzgerald, 262 App Div 393.)

      Frederick A. O. Schwarz, Jr. (.Edith I. Spivack and Rochelle M. Corson of counsel), for respondent.
    It was not arbitrary or capricious nor was it an abuse of discretion to determine, as the New York City Department of Housing Preservation and Development did, that the BonwitTrump site, which was improved on October 1,1971 with a structurally sound and fully functioning specialty store building did not qualify for tax benefits under section 421-a of the Real Property Tax Law as “vacant, predominantly vacant or under-utilized” on that controlling date. (Teleon Realty Corp. v City of New York, 88 Misc 2d 767, 68 AD2d 858, 50 NY2d 824; Matter of County of Suffolk [C. J. Van Bourgondien, Inc.], 47 NY2d 507; Cooper-Snell Co. v State of New York, 230 NY 249; Dixon v Robbins, 246 NY 169; People v Harms, 308 NY 35; Cabell v Markham, 148 F2d 737; Uniform Firefighters Assn. Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463; New York State Bankers Assn. v Albright, 38 NY2d 430; People ex rel. Young Men’s Assn. for Mutual Improvement in City of Albany v Sayles, 32 App Div 197, 157 NY 677; People ex rel. Mizpah Lodge No. 518 of Independent Order of Odd Fellows v Burke, 228 NY 245.)
   OPINION OF THE COURT

Wachtler, J.

The Trump-Equitable Fifth Avenue Company (Trump), which seeks a partial tax exemption in this proceeding, is a joint venture which owns a parcel of real property located at 721-725 Fifth Avenue in Manhattan. Before Trump acquired the property, the site was improved with a 12-story structure used as a retail department store owned and occupied by Bonwit Teller & Company. Trump demolished the building and is in the process of replacing it with Trump Tower, a 59-story structure to consist of 18 floors of retail and commercial office space to be retained by Trump, and 38 residential floors housing 266 luxury condominium units. The condominium units are to be sold for a sum of $155 million in prices which range from $407,000 to $3,150,000.

Trump applied to the New York City Department of Housing Preservation and Development (HPD) for a partial tax exemption for the 38 residential floors pursuant to section 421 (now 421-a) of the Real Property Tax Law, subdivision 1 of which provided in part, as originally enacted: “To be eligible for exemption under this section such construction shall take place on vacant, predominantly vacant or under-utilized land, or on land improved with a non-conforming use”. HPD denied Trump’s application on the ground that “on the operative date, the site was [not] occupied by a functionally obsolete non-residential or residential building”. The “functional obsoleteness” standard has its source not in the legislation but in HPD Regulation No. 4, which requires that in order to be eligible for the exemption the subject property must have been vacant, predominantly vacant or under-utilized on October 1, 1971. The regulation defines under-utilized land as “land or space which was substantially under-utilized by virtue of the fact that * * * [i]t is occupied by functionally obsolete non-residential or residential buildings.”

Special Term vacated respondent commissioner’s denial of Trump’s application as arbitrary and capricious and in excess of his authority, essentially on the ground that the regulation requiring “functional obsoleteness” was invalid. The court then determined that the subject parcel was “under-utilized” within the meaning of the statute as of October 1, 1971, and ordered respondent to grant Trump’s application for the partial tax exemption.

The Appellate Division reversed the order of Special Term, reinstated respondent’s determination, and dismissed the petition. The court found it unnecessary to consider whether respondent’s definition of under-utilization in terms of “functional obsoletenéss” constituted an unwarranted extension of the meaning of the statute in light of its own determination that the subject property was, as of October 1, 1971, not under-utilized “in any ordinary understanding of the term” or “as a practical matter”. (87 AD2d, at p 16.) In our view the Appellate Division erred in not vacating an agency determination expressly based upon an administrative regulation clearly inconsistent with the plain words of the governing statute. We therefore reverse.

A fundamental principle of administrative law long accepted by this court limits judicial review of an administrative determination solely to the grounds invoked by the agency, and if those grounds are insufficient or improper, the court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis (Matter of Montauk Improvement v Proccacino, 41 NY2d 913; Matter of Barry v O’Connell, 303 NY 46; see, also, Securities Comm. v Chenery Corp., 332 US 194).

In denying Trump’s exemption application HPD did not rely on the statutory concept of under-utilization except insofar as that concept was redefined by the functional obsoleteness standard embodied in its own regulations. The Appellate Division acknowledged that respondent’s determination was premised on Trump’s failure to establish that the subject property was occupied by a functionally obsolete structure on the operative date. That court determined, however, that it was unnecessary to consider whether the functional obsoleteness requirement was inconsistent with the statutory concept of under-utilization, for it found that the property was not under-utilized “in any ordinary understanding of the term” and that the agency determination therefore had a rational basis and was not subject to vacatur. Thus, in failing to review HPD’s denial of the partial tax exemption on the specific ground invoked by the agency and in substituting its own independent rationalization for upholding the agency’s determination, the Appellate Division exceeded the appropriate boundary of judicial review in this area (Matter of Montauk Improvement v Proccacino, supra; Matter of Barry v O’Connell, supra; Securities Comm. v Chenery Corp., supra).

In reviewing the legality of the basis upon which HPD acted we note that section 421-a requires only that the subject land be “under-utilized” in order to qualify for the partial tax exemption. HPD Regulation No. 4, however, defines “under-utilized land” as property “substantially under-utilized by virtue of the fact that * * * [i]t is occupied by functionally obsolete non-residential or residential buildings”. In our view, the regulation substitutes requirements as preconditions to obtaining the exemption not found in this statute itself. Section 421-a does not require “substantial” under-utilization, nor does the provision imply that only one specific type of under-utilization may qualify property for the exemption. In addition the statute focuses on under-utilization of the land; the regulation focuses on obsoleteness of the buildings. Had the Legislature intended to limit the availability of the exemption solely to property under-utilized by virtue of the presence of functionally obsolete structures, it could have done so through appropriately worded legislation. By requiring functional obsoleteness of the building then, the regulation improperly limits the availability of the exemption to one category of under-utilized land in direct contravention of the plain words of the statute.

It is well established that in exercising its rule-making authority an administrative agency cannot extend the meaning of the statutory language to apply to situations not intended to be embraced within the statute (Matter of Jones v Berman, 37 NY2d 42). Nor may an agency promulgate a rule out of harmony with or inconsistent with the plain meaning of the statutory language (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Harbolic v Berger, 43 NY2d 102). Applying these settled principles, we conclude that by substituting a requirement not specified in section 421-a, the definition of “under-utilized land” found in HPD Regulation No. 4 is invalid.

Application of principles of statutory construction supports our conclusion. Under the maxim noscitur a sociis, the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. This maxim expresses the rule of construction that the words used in a statute are construed in connection with, and their meaning is ascertained with reference to, the words and phrases with which they are associated (McKinney’s Cons Laws of NY, Book 1, Statutes, § 239, subd a). Applying this principle here, the meaning of the statutory term “under-utilized” is determined by reference to the two preceding terms “vacant” and “predominantly vacant”. Although we leave proper ascertainment of the meaning of “under-utilized” to the administering agency after its reconsideration on remittitur, we observe that reference to the statutory terms “vacant” and “predominantly vacant” precludes any definition of under-utilization which incorporates a requirement that the subject property hold a structure which is functionally obsolete.

Respondent contends, in favor of affirmance, that the legislative history of section 421-a suggests that the provision is designed to facilitate the development of affordable middle and lower income housing units as opposed to the expensive, luxurious apartments of Trump Tower. This is unpersuasive for a variety of reasons.

First, it is not at all clear that the legislative history of the statute is as respondent contends. Although a statement to that effect appears in a 1978 research compilation (Ford, Housing Policy: The Urban Middle Class [1978], at p 54) the statement is unsupported by any citation to relevant authority. Also, research compilations prepared years after a statutory enactment are not relevant in determining the legislative intent behind the statute (see Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 67). Moreover, the only official legislative history of section 421-a, the Memorandum of the Legislative Representative of the City of New York, speaks only in terms of housing shortages and new construction in general. Nothing contained in the memorandum in any way implies that the statute was designed to stimulate the development of middle income housing.

Second, even if the legislative history of the statute were as respondent contends our conclusion would in no way be affected since the proposed construction of section 421-a contravenes the mandate and the express language of the statute itself, which in no way attempts to limit the availability of the exemption to the development of middle income housing units. This court should not ignore the words of a statute, clear on its face, to reach a contrary result through judicial interpretation (McKinney’s Cons Law of NY, Book 1, Statutes, § 76; Matter of Kleefeld, 55 NY2d 253, 259).

Respondent also contends that HPD Regulation No. 4 constitutes an interpretation of a statute by an administering agency and is therefore entitled to great weight and judicial deference. As a general matter courts should defer to the interpretation given a statute by the agency charged with its enforcement if the interpretation is neither irrational, unreasonable, nor inconsistent with the governing statute (Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; Matter of Sigety v Ingraham, 29 NY2d 110). Where, however, as in the instant case, the words of the statute are clear and the question simply involves the proper application of the provision “there is little basis to rely on any special competence or expertise of the administrative agency arid its interpretive regulations”, especially when the interpretation, as embodied in a regulation, directly contravenes the plain words of the statute (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Accordingly, the order of the Appellate Division should be reversed, the determination of respondent Commissioner for the Department of Housing Preservation and Development of the City of New York vacated, and the matter remanded to respondent for reconsideration of petitioner’s application, and, if deemed appropriate, the promulgation of regulations appropriate to the application of the legislatively prescribed standard of “under-utilized land”.

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

Order reversed, with costs, determination of respondent commissioner vacated and matter remitted to Supreme Court, New York County, with directions to remand to the respondent commissioner for further proceedings in accordance with the opinion herein.

      . As originally enacted, subdivision 1 of the statute provided a partial declining exemption from real property taxes as follows: “(1) New multiple dwellings within a city having a population of one million or more * * * shall be exempt from taxation for local purposes, other than assessments for local improvements, during construction and so long as used for dwelling purposes for a period not to exceed ten years in the aggregate after the taxable status date immediately following the completion thereof, consisting of two years of full exemption followed by two years of exemption from eighty per cent of such taxation, followed by two years of exemption from sixty per cent of such taxation, followed by two years of exemption from forty per cent of such taxation, followed by two years of exemption from twenty per cent of such taxation; provided that taxes shall be paid during any such period at least in the amount of the taxes paid on such land and any improvements thereon during the tax year preceding the commencement of such construction and that exemption from taxes shall not be "availed of concurrently under any other law” (L 1971, ch 1207, § 1). The provision has recently been amended and now appears in section 421-a (subd 2, par [a]) of the Real Property Tax Law (L 1981, ch 995, § 1). It should be noted that the provision was drafted to assure that the partial exemption resulted in no loss of tax revenue to the municipality over a period of time because the exempt property would always be subject, at a minimum, to the amount of taxes paid on the property prior to the grant of the exemption.

      . The provision in question has recently been amended and appears in section 421-a (subd 2, par [d]) of the Real Property Tax Law as follows: “To be eligible for exemption under this section such construction shall take place on land which, thirty-six months prior to the commencement of such construction, was vacant, predominantly vacant, under-utilized, or improved with a non-conforming use” (L 1981, ch 995, § 1).

      . It is useful for purposes of analysis to consider the hypothetical employed by Special Term to emphasize the inconsistency between the statute and the regulation: “For example, if a prime Manhattan site which could conceivably, consistent with zoning limitations, house a forty story residential tower and instead housed a perfectly viable and newly constructed two story parking garage, there could be little doubt that the site would be ‘under-utilized land’, within any reasonable interpretation of the term, regardless of whether or not the garage was functionally obsolete”.

      . We would note in this regard that we in no way approve of or adopt Trump’s contention that “under-utilized land” is property not developed to the most productive state or maximum potential permitted under applicable zoning regulations. More appropriate perhaps is Special Term’s formulation of the statutory concept as property “used in such manner that substantially less beneficial use was made of the land than was possible under the circumstances”.

      . The memorandum’s “Reasons for support” reads in its entirety as follows: “The housing shortage afflicting the municipalities of this State is greatly exacerbated by the virtual cessation of new construction. Similar conditions a half century ago caused the State Legislature to authorize local laws granting tax exemption to new units for a brief period (Laws of 1920, Chapter 949). This program acted as a tremendous stimulus to new construction.
      “The bill would channel the tax benefits to areas in the City of New York where the creation of new units would cause minimal displacement and would require that the tax benefits be reflected in a lowering of rents.
      “No efforts should be spared to increase the number of safe and decent dwelling units in our cites. Under this bill, the City would not actually lose tax revenues since the owner would continue to pay during the period of the exemption the amount of prior taxes on the property, and future tax yields would be greatly enhanced by the improvements.
      “Accordingly, the Mayor urges upon the Legislature the earliest possible favorable consideration of this proposal”. (Memorandum of Legislative Representative of City of New York, McKinney’s Session Laws of NY, 1971, at p 2551.)


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Bryan & Rose, Inc., Doing Business as My Father’s Place, Respondent, v New York State Liquor Authority, Appellant.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Stanley Stein and Stephen D. Kolinsky for appellant.

      Alan J. Azzara for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 579).

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


text:
    James Harzinski et al., Appellants, v Village of Endicott, Respondent. (Action No. 1.) Samuel P. Russo et al., Appellants, v City of Binghamton et al., Respondents. (Action No. 2.)

      Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Kevin F. McDonough for James Harzinski and others, appellants.

      Rodney A. Richards for Village of Endicott, respondent.

      Kenneth Auerbach, Corporation Counsel, for City of Binghamton, respondent.

      Robert Abrams, Attorney-General {Alan W. Rubenstein and Shirley Adelson Siegel of counsel), for Edward Regan, as Comptroller of the State of New York, and in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

In Harzinski v Village of Endicott: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to appellants, to the extent of reinstating the provision of the order of Supreme Court, Broome County, declaring that plaintiffs are entitled to salary increases given to active firemen and, as so modified, affirmed. Appellants, disabled firemen, are entitled to salary increases where, as here, such increases were negotiated after the award of the disability allowance (Matter of Mashnouk v Miles, 55 NY2d 80). We agree with the Appellate Division, however, that the benefit should be computed using the “zero option” retirement allowance inasmuch as “amounts received” includes the package of benefits received by the firemen upon retirement. Finally, we find appellants’ constitutional arguments to be unavailing.

In Russo v City of Binghamton: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to appellants, by granting plaintiffs’ motion for partial summary judgment to the extent of declaring that plaintiffs are entitled to salary increases granted to active firemen and, as so modified, affirmed. Appellants, disabled firemen, are entitled to salary increases where, as here, such increases were negotiated after the award of the disability allowance (Matter of Mashnouk v Miles, 55 NY2d 80). We agree with the Appellate Division, however, that the benefit should be computed using the “zero option” retirement allowance inasmuch as “amounts received” includes the package of benefits received by the firemen upon retirement. Finally, we find appellants’ constitutional arguments to be unavailing.

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


text:
    City of Syracuse, Appellant, v Sarkisian Brothers, Inc., et al., Respondents.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      David M. Garber, Corporation Counsel (.Robert J. Jenkins of counsel), for appellant.

      Alan Pope for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 984).

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


author: Jasen, J.

text:
    In the Matter of Murray M. Oback et al., Respondents, v S. Michael Nadel, as Personnel Director of the City of New York, et al., Appellants. James Stavola, as President of the New York City Transit Police Department Sergeant Eligible Association, Intervenor-Respondent.
    Argued May 3, 1982
    decided July 1, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Marvin R. Kwartler, Leonard Koerner and Stephen J. McGrath of counsel), for appellants.

      Murray A. Gordon, Ronald H. Schectman and Kenneth E. Gordon 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.

Petitioners brought the present article 78 proceeding to challenge the validity and correctness of certain answers on an examination given for promotion to the position of sergeant of the New York City Transit Police Department. Supreme Court determined that the petition should not be dismissed because the challenge to the answers could not be decided without a hearing. The Appellate Division then affirmed and granted leave to appeal to our court.

We agree with the courts below that factual issues remain for determination following a hearing. There is no merit to respondents’ contention that the proper standard for review is whether there is a rational basis for the answers designated by the administrators as correct and that the case can be decided on the basis of the papers submitted. As we noted in Matter of Acosta v Lang (13 NY2d 1079, 1081), the challengers to these answers are “not required to show that there is no reasonable basis for the key answer selected by the commission, but merely that the answer given by the candidate on the test is better or at least as good as the key answer.” Significantly, the court reasoned that “[w]here there are two equally acceptable answers to a question, the selection of one as the correct answer must be deemed to be the result of an arbitrary decision” (supra, at p 1081 [citations omitted]). We simply add that the challengers will face the burden of proving the noncredited answers correct at the subsequent hearing. The extensive administrative review procedure employed by respondents in the face of the challenges to the designated answers warrants that the final administrative determinations regarding these answers enjoy a presumption of correctness which must be overcome by the challengers.

Jasen, J.

(dissenting). I cannot agree with the holding of the majority, the result of which will be to require a court hearing whenever an unsuccessful candidate for a civil service position or promotion alleges that the answer he gave was as good as or better than the answer accepted by those charged with administering the examination.

Petitioners, members of the New York City Transit Authority Police Department, were candidates for promotion to the rank of sergeant. They were required to pass a three-part examination, one part of which was a written test consisting of 100 multiple choice questions. Only the written portion of the examination is in issue here. The top 75 scores on the written test were to be considered passing. If a candidate did not receive one of the top 75 scores, the remaining portions of the examination — performance and seniority — would not be considered.

At the written examination, the candidates were told where the key answers could be obtained and how they could protest the correctness of those answers. After the examination, 11 of these 16 petitioners filed timely protests to the key answers, the remaining 5 dispute subsequent grading changes made after the protests were reviewed.

The filed protests initially received administrative review by both the Transit Authority Police Department and the City of New York Department of Personnel. First, a panel composed of sergeants in the Transit Authority Police Department reviewed the protests. Then a panel of members from the Department of Personnel’s Criminal Justice Task Force, who were specially qualified by training and experience, conducted a similar review. At the end of this first stage of review, the task force issued a report reviewing all the questions against which protests had been filed and recommending that the key answers be accepted for all but five of the questions in issue. For those five questions, it was recommended that one or more of the alternatives also be accepted.

On November 1, 1978, an independent test validation board was established by the city personnel director. That board was composed of five members, two of whom were nominated by the Transit Authority and approved by the Transit Authority Sergeants’ Benevolent Association. Two of the other panel members were employees of the Department of Personnel. The fifth member of the panel was from the city’s Office of Collective Bargaining, but his vote was never required because his role was limited to when the four-member panel was deadlocked. The board’s guidelines required it to review all questions on the test that had been protested, the key answer to each, the protests filed and the recommended answers as set forth in the test validation report issued by the Criminal Justice Task Force. Provisions were made for the board to obtain technical advice when they felt it was necessary to properly evaluate the questions and answers. The board was required to issue a report and state a rationale if its recommendation was different from that of the task force or if the board’s vote was not unanimous.

On March 8, 1979, the board issued its report which confirmed the test evaluation report issued by the task force. There was disagreement among the board members on two questions and the report explains the board’s rationale in retaining the key answer. The final result was that alternative answers were allowed in 5 of the 60 questions which were protested. In affidavits submitted to the court as part of the respondents’ answer, the members of the board stated that the standard used to decide whether or not to allow alternative answers was whether those answers were as good as or better than the key answer.

Petitioners commenced this article 78 proceeding seeking to annul the decision of the city personnel director which adopted the board’s report. Their petition alleges that in refusing to accept their protests, the director acted in an arbitrary and capricious manner. In support of their claims, petitioners filed affidavits from two New York City Police officers which stated that in their opinion the answers given by petitioners were as good as those accepted by the board. Petitioners argue that in order to determine whether or not the director’s decision was arbitrary and capricious, the court must review each protested question and answer to see whether the decision to retain the key answer was proper.

Respondents contend that unless petitioners can show that the agency’s procedure in determining the proper answer was arbitrary and capricious, no judicial review is proper. In support of this, respondents submitted a verified answer and affidavits which outlined the method used by the agency to evaluate the validity of the examination.

Special Term refused to dismiss the petition and stated: “Petitioners have made a prima facie showing that their answers are as good or better than those accepted as correct by respondents * * * Whether the answers to the examination should be changed cannot be decided without a hearing, which is ordered.” The Appellate Division affirmed, without opinion, and granted leave to appeal to this court.

Inasmuch as I believe that the only proper issue raised by this appeal is whether or not the agency acted in an arbitrary and capricious manner in administering the examination and in evaluating the protested questions and answers, and because I am convinced that the result of the majority’s decision will be to improperly inject the courts into the administration and evaluation of civil service examinations, I would reverse the order of the Appellate Division and answer the certified question submitted in the negative.

An agency such as the New York City Personnel Department has considerable discretion in preparing, administering and validating the examinations it is required to conduct. Under an article 78 standard of review, it is only when the agency abuses that discretion in a manner which can be termed arbitrary and capricious that the courts are justified in disturbing the agency’s determination. Thus, it is the conduct of the agency in administering and evaluating the examination and not the arguable validity of the individual questions and answers which is the proper subject of the court’s review. It seems to me that the petitioners urge an impermissible standard of judicial review — i.e., substitution of the court’s judgment as to the correctness of the protested answers, rather than a review of the agency determination for a rational basis in determining the correctness of the key answers.

Of course, it is always a concern that a question is phrased in a manner which misleads the candidate or that the answer sought when the question was written has become outdated by the time the examination is administered. A refusal by the agency to consider these types of problems, or to make any adjustments, would be arbitrary and capricious. But, in this case, where the review panels found merit to the protests, alternative answers were also credited. Given the limited scope of review under article 78, I believe it is improper to conclude, as the majority does, that a judicial hearing on the issue of the correctness and validity of the answers to the examination is required.

The effect of the majority’s decision is that at the judicial hearing, the court will be asked to determine whether the answers advocated by the petitioners are as good as or better than the ones chosen by the agency. This is, in my opinion, an impermissibly broad role for the courts. Just as this court refrains from interfering with the discretion vested in the administrators who establish academic standards for public schools and universities (see, e.g., Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Matter of McIntosh v Borough of Manhattan Community Coll., 55 NY2d 913; Morales v New York Univ., 55 NY2d 822), it should refrain from interfering with the agency’s discretion in establishing standards for hiring persons to handle the agency’s work. The test is, after all, designed to evaluate the candidates on the basis of their ability to handle the situations which, in this case, a Transit Authority police sergeant will face. The agency is in command of the expertise necessary to make such a choice. The courts should not interfere with that choice unless petitioners allege facts indicating that the choice is the result of an arbitrary procedure.

In Matter of Acosta v Lang (13 NY2d 1079), a hearing was ordered precisely because this court determined that the agency’s decision to accept only its key answer, without considering the protested answers, could be termed arbitrary. As the court stated, “[w]here there are two equally acceptable answers to a question, the selection of one as the correct answer must be deemed to be the result of an arbitrary decision (Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Gruner v. McNamara, 298 N. Y. 395).” (Matter of Acosta v Lang, supra, at p 1081.)

Here, the agency did not arbitrarily reject petitioners’ protests to certain key answers but, instead, set up extensive review procedures to test the validity of the protests filed and indeed, after review, accepted some and rejected others. This can hardly characterize the agency as being arbitrary and capricious. Indeed, even the majority notes that the administrative procedures employed in this case mean that the answers accepted “enjoy a presumption of correctness”. (At p 622.)

Therefore, in a case such as this, I do not believe that it is sufficient for a petitioner to allege merely that other answers should have been accepted. There is always room for argument on a multiple choice examination that more than one answer is acceptable. To the extent that the choice of an acceptable answer is a matter of opinion, that choice properly belongs to the agency charged with administering the test, provided there is an adequate agency review of that choice.

Given the necessarily subjective nature of civil service testing, our review should be limited to those occasions when the petitioners allege sufficient facts and information to indicate that the agency was arbitrary and capricious in administering an examination. Under this standard, merely alleging that another answer is as good as the key answer would be inadequate in face of a responsive pleading which outlines, as respondent does in this case, a thorough agency review of the validity of the key answers on the examination. In my view, to succeed in cases such as this, objectants should be required to demonstrate that the answers they urge are as good as or better than the key answers, and that, in consequence of insufficient, incomplete, or otherwise deficient procedure or consideration, the agency’s determination to reject the answers urged was arbitrary and capricious.

Since petitioners failed to allege facts sufficient to establish a prima facie case requiring a review of the determination of the agency under article 78,1 would vote to reverse the order of the Appellate Division and dismiss the petition.

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

Order affirmed, etc.


text:
    Elva Mangold, Appellant, v Helen Neuman, Respondent.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Saul I Weinstein for appellant.

      Pamela Jarvis for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The courts below concluded that defendant’s dwelling place, where she stayed occasionally in connection with her business activities, was not a residence for purposes of CPLR 308 (subd 2). This affirmed factual determination is beyond the scope of our review, there being evidence in the record to support it.

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


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    Jonathan D. Kantrowitz, as Administrator of the Estate of Buster M. Walker, Also Known as Richard M. Walker, Deceased, et al., Appellants, v Steven Adelsberg et al., Respondents.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Jon Paul Robbins for appellants.

      Steven J. Ahmuty, Jr., for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 811).

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


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    Philip Lazzaro et al., Appellants, v Thomas J. Kelly et al., Respondents, et al., Defendant.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Mitchell T. Williams for appellants.

      Philip O’Shea, Jr., for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 975). Service as an escrow agent does not provide a basis for invocation of the continuous representation doctrine.

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


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    Chicago Title Insurance Company, Appellant, v Kenneth C. Heskestad, Respondent.
    Decided July 1, 1982

      APPEARANCES OF COUNSEL

      Lawrence D. Kleinman for appellant.

      Donald Tirschwell for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order modified, with costs to plaintiff, by denying defendant’s cross application for summary judgment and reinstating the complaint and, as so modified, affirmed. Plaintiff is not entitled to summary judgment in view of defendant’s claim, supported by his affidavit, that both he and the bank were to be covered by plaintiff’s title policy (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175). If defendant was an insured, plaintiff cannot recover from him. But defendant was not entitled to summary judgment either. Plaintiff cannot be regarded as a volunteer in paying the taxes due by defendant. That its contract with the bank required that it make the payment is irrelevant, for it is subrogated to the rights of the bank which was in turn subrogated to the rights of the taxing authorities against defendant, and the bank’s interest in the premises which secured its mortgage gave it an interest sufficient to take it out of the classification of a volunteer. Plaintiff will be entitled to judgment unless defendant establishes that he was in fact an insured under the policy.

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


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    J. Roger Barber, as Commissioner of Agriculture and Markets of the State of New York, Respondent, v J. David Bullard et al., Appellants.
    Decided July 1, 1982
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie from a nonfinal order (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Barnett Guthartz, Appellant, v City of New York et al., Respondents.
    Decided July 1, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal pursuant to CPLR 5601 (subd [c]) does not lie where a new trial or hearing is not granted (see Cohen and Karger, Powers of the New York Court of Appeals, § 63, pp 284-285).

Judge Meyer taking no part.


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    Jerome Karan, Respondent, v Karan Drugs, Inc., Appellant.
    Submitted June 21, 1982
    decided July 1, 1982
   Motion to dismiss the appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground it does not lie (NY Const, art VI, § 3; CPLR 5601).


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    Betty O. Muka et al., Appellants, v City of Ithaca, Respondent.
    Decided July 1, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a direct appeal does not lie from a nonfinal order (CPLR 5601, subd [b], par 2).


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    Betty O. Muka, Appellant, v Robert Howard, Respondent.
    Submitted June 14, 1982
    decided July 1, 1982
   Motion to vacate the Court of Appeals order of dismissal dated February 18, 1982 denied. [See 55 NY2d 1036.]


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    In the Matter of Jack Parker, Doing Business as Parman Co., Respondent, v Conciliation and Appeals Board of the City of New York, Appellant.
    Submitted June 14, 1982
    decided July 1, 1982
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. [See 56 NY2d 678.]

Judge Wachtler taking no part.


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    In the Matter of the Guardianship and Custody of Nereida S. and Another, Infants. Law Guardian of Nereida S. and Another, Infants, Respondents; Catholic Guardian Society, Respondent; Samuel L., Appellant; Attorney-General of the State of New York, Intervenor. In the Matter of the Guardianship and Custody of Sylvia M. and Another, Infants. Cardinal McCloskey School and Home, Respondent; Manuela M. et al., Appellants; Attorney-General of the State of New York, Intervenor.
    Argued May 11, 1982
    decided July 2, 1982

      APPEARANCES OF COUNSEL

      Louise Gruner Gans, Edward N. Simon, Michael B. Hampden, Diane Morrison, Lucy Billings and Natalie Kaplan for Samuel L., appellant.

      Edward N. Simon, Joseph Zalk, Louise Gruner Gans, Marlene Halpern, Carolyn Kubitschek, Lucy Billings and Natalie Kaplan for Manuela M., appellant.

      James A. Cardiello for Sylvia M., appellant.

      John F. McGlynn, Barbara H. D Udine and Lenore Gittis, Law Guardian, for Nereida S. and others, respondents’

      David H. Berman and Gerald E. Bodell for Cardinal McCloskey School and Home, respondent.

      Terry McGuire for Catholic Guardian Society, respondent.

      Robert Abrams, Attorney-General {Robert J. Schack and Peter H. Schiff of counsel), intervenor pro se.

   OPINION OF THE COURT

Memorandum.

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

In each of these proceedings to terminate parental rights, the record reveals “clear and convincing proof” (Social Services Law, § 384-b, subd 3, par [g]) that the parent is “presently and for the foreseeable future unable, by reason of mental illness * * * to provide proper and adequate care” for the children (Social Services Law, § 384-b, subd 4, par [c]). Consequently, there is no basis for disturbing the Appellate Division’s findings that there exists mental illness sufficient to justify termination of parental rights (cf. Matter of Vera T., 55 NY2d 1028).

Nor is there merit to the broad-based argument that the statutory scheme violates rights of procedural and substantive due process and equal protection. The statutes provide significant procedural safeguards for the natural parent’s rights and authorize termination of parental rights only when specific and definite criteria are met and when necessary in the best interest of the child. Similarly unpersuasive is the argument that the statutes authorize termination of rights on the basis of a parent’s status as mentally ill. Termination is warranted only when the parent’s mental illness manifests itself in conduct demonstrating a present and future inability to care for the child. It is the parent’s conduct and relationship with the child, not his or her status per se, that forms the predicate for terminating parental rights. Appellants have failed to establish that the statutory scheme is unconstitutional.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli concurs in result only.

In each case: Order affirmed, without costs, in a memorandum.


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    In the Matter of the Guardianship and Custody of Dochingozi B., an Infant. Children’s Aid Society, Respondent; Earline E. et al., Appellants; Attorney-General of the State of New York, Intervenor.
    Argued May 11, 1982
    decided July 2, 1982

      APPEARANCES OF COUNSEL

      Wendy Sue Lauring and Lenore Gittis for Dochingozi B., appellant.

      James A. Cardiello, Lucy Billings and Natalie Kaplan for Earline E., appellant.

      Benjamin J. Rosin for respondent.

      Robert Abrams, Attorney-General {Robert J. Schack and Peter Schiff of counsel), intervener pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the Family Court, New York County, for further proceedings on the petition.

The record in this proceeding to terminate parental rights does not support the finding that the natural mother is “presently and for the foreseeable future unable, by reason of mental illness * * * to provide proper and adequate care” for her child (Social Services Law, § 384-b, subd 4, par [c]). The quality and quantity of the psychiatric testimony was insufficient to sdtisfy the requirement of “strict adherence to that statutory mandate” (Matter of Daniel A. D., 49 NY2d 788, 790) requiring production of “clear and convincing proof” (Social Services Law, § 384-b, subd 3, par [g]) of a parent’s present and future inability to care for his Or her child because of mental illness. The psychiatric examination was brief and occurred approximately nine months prior to the hearing. There was no articulated basis for the testimony concerning the extent of the mother’s illness and its manifestations. At most, the testimony related to matters concerning her past condition. The inferences as to future condition apparently drawn from the mother’s past behavior are not adequately supported so as to satisfy the statutory test and, consequently, terminating her parental rights was improper.

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

Order reversed, etc.


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    In the Matter of the Claim of Jacki Brooks, Claimant, v New York Telephone Company, Appellant. Workers’ Compensation Board, Respondent.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Harold S. Levy and Lon S. Bannet for appellant.

      Robert Abrams, Attorney-General {Ellen S. Weisburd of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (87 AD2d 701).

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


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    The People of the State of New York, Appellant, v Paul Monaco, Respondent.
    Argued June 10, 1982
    decided July 2, 1982
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (.Norman Barclay and Mark Dwyer of counsel), for appellant.

      Deborah A. Schwartz and Gustave H. Newman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It was appellant’s contention in support of his defense of justification on trial for the killing of 13-year-old Ciprian Séptimo, Jr., that when he suddenly saw the figure of a person standing on a platform outside the third floor rear windows of the apartment building he believed that the intruder was a burglar. As part of the People’s proof in refutation of that defense the prosecutor was permitted, over protest, to introduce testimony by the boy’s school principal that the deceased lad was a delicate child, that the school had him marked for limited physical activity because he had a cardiac problem and had had open heart surgery and was asthmatic as well. Similarly the boy’s sister was permitted to testify that her brother did not play strenous games and played only with children who were six to eight years old. This witness was also allowed, over strenuous objection, to describe stitches on her brother’s body extending from the front of his chest going around to the middle of his back.

While physical characteristics of the young man visible to defendant at the time of their encounter (or, had defendant identified the intruder, nonvisible characteristics of which defendant was aware) would have been relevant and admissible on the issue of his state of mind and mental culpability at the time the fatal shot was fired (and thus admissible with respect to the defense of justification as charged in this case) physical limitations and body markings which were wholly unknown to defendant and of which he could in no way be charged with notice, were irrelevant and should have been excluded (cf. Matter of Robert S., 52 NY2d 1046). Moreover, as the majority at the Appellate Division held, because the erroneously admitted evidence “could only have aroused sympathy for the victim and his family and animus against the defendant”, the error cannot be held to have been harmless.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli concurs in result only.

Order affirmed in a memorandum.


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    Najjar Industries, Inc., et al., Appellants-Respondents, v City of New York (Mersereau Avenue Pumping Station, Richmond), Respondent-Appellant.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Julius L. Schapiro for appellants-respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel 0Craig A. Landy of counsel), for respondent-appellants.
   OPINION of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order, insofar as appealed from, affirmed, with costs. The “release” signed by plaintiffs confirmed their agreement expressed in change order 1M-5 to accept the contract unit price for installation of the 22-foot extension of 42-inch sewer pipe, and precluded, as a matter of law, their subsequent attempt to litigate the issue of price to be paid for that work. The disposition of plaintiffs’ fourth cause of action concerning subsurface conditions encountered on the project involves only factual determinations which are not within this court’s power to review.

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


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    Mongelli Carting Company, Inc., Respondent, v Nassau Insurance Company, Respondent, and Norman Levine Associates, Inc., Appellant.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL Duncan B. Hume for appellant.

      Daniel H. Greenberg for Mongelli Carting Company, Inc., respondent.

      Morris Hass for Nassau Insurance Company, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The Appellate Division’s determination that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review (Rudes v Walrath, 56 NY2d 703; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Pfohl v Wipperman, 34 NY2d 597; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588).

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


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    The People of the State of New York ex rel. James Gray, Respondent, v Erdogan Tekben, as Director, Mid-Hudson Psychiatric Institute, Appellant.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (AlanD. Marrus of counsel), for appellant.

      Malvina Nathanson and William E. Hellerstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order, insofar as appealed from, affirmed, without costs. The crime of assault in the third degree under subdivision 1 of section 120.00 of the Penal Law is not a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 of the Penal Law inasmuch as it is possible to commit the latter without possessing the intent to injury which is the gravamen of the former (cf. People v Glover, 57 NY2d 61). Petitioner’s detention is premised on an invalid verdict and is, therefore, unlawful.

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


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    In the Matter of Meyers Bros. Parking Systems, Inc., Appellant, v Shelley J. Sherman, as Deputy Commissioner of the New York City Department of Consumer Affairs, et al., Respondents. In the Matter of Tower Parking Lincoln Met, Inc., Appellant, v Shelley J. Sherman, as Deputy Commissioner of the New York City Department of Consumer Affairs, et al., Respondents.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Hugh M. Heller for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 562).

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


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    In the Matter of Ezey Company, Appellant, v Shelly J. Sherman, as Deputy Commissioner of the New York City Department of Consumer Affairs, et al., Respondents. In the Matter of Confucius Plaza Garage Corp., Appellant, v Shelly J. Sherman, as Deputy Commissioner of the New York City Department of Consumer Affairs, et al., Respondents. In the Matter of Meyers Bros. Parking Systems, Inc., Appellant, v Shelly J. Sherman, as Deputy Commissioner of the New York City Department of Consumer Affairs, et al., Respondents.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Hugh H. Heller for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Frank F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division in Matter of Meyers Bros. Parking Systems v Sherman (87 AD2d 562).

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


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    Mary & Alice Ford Nursing Home Co., Inc., Appellant, v Fireman’s Insurance Co. of Newark, New Jersey, Respondent.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Stephen J. Van Ullen for appellant.

      Maureen S. Bonanni for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (86 AD2d 736).

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


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    In the Matter of Nassau Educational Chapter of the Civil Service Employees Association, Inc., et al., Appellants, v Great Neck Union Free School District, Respondent.
    Argued June 9, 1982
    decided July 2, 1982

      APPEARANCES OF COUNSEL

      Richard M. Gaba and Barry J. Peek for appellants.

      Jerome H. Ehrlich for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although the Appellate Division’s order recites that it is “on the law” rather than “on the law and the facts,” CPLR 5612 (subd [a]) permits us (contrary to prior practice see Rugg v State of New York, 303 NY 361) to look to “any order of the Appellate Division and to its opinion” to determine whether it resolved factual issues in reaching its conclusion (Second Preliminary Report, Advisory Committee on Practice and Procedure [NY Legis Doc, 1958, No. 13], p 362). The majority opinion below recites in relation to Special Term’s holding that its “analysis of the facts leads us to the opposite conclusion.” (85 AD2d, p 734.) Accordingly, the issue for our determination is which, between the view of the two courts below, the weight of the evidence supports.

Considering the record against the factors referred to in Matter of Westchester County Civ. Serv. Employees Assn. v Cimino (58 AD2d 869, affd 44 NY2d 985) and Matter of Conlin v Aiello (64 AD2d 921, affd 49 NY2d 713), we conclude that the weight of the evidence supports the conclusion reached by the Appellate Division majority. Neither the fact that the same duties are performed by the contractor’s employees as were performed previously by the district’s employees nor that the contract may be terminated on notice is determinative. Moreover, all of the Westchester criteria except supervision and control are unequivocally met and the good faith of the district is demonstrated by the savings in excess of $100,000 a year which, as the Trial Judge found, result from the district’s use of Star personnel in place of its former guard employees.

Although because of the monitoring and communications system that protected the district’s buildings there was a necessary interrelationship between work of Star’s guards and that of the district’s employees, the latter neither supervised nor controlled the former. As concerns supervision, although district personnel were used as message conduits between Star officials and the Star guards assigned to the district, there was supervision by Star of its employees to the extent that the nature of the work required supervision. As to control, although district employees (the chief and the captain) continued to operate the monitoring devices which alerted them to problems in the several buildings, and could keep in touch with Star personnel by beeper or by telephone, they did no more than pass on to the Star employee in whose assigned area a disturbance occurred the relevant information. The action taken by the Star employee in response to that information was pursuant to the contract rather than either an order or a request by the district employee.

No more determinative were the other factors relied on by the Trial Judge and the dissenters below. Star guards directed traffic and delivered mail because the contract called for them to do so and used district equipment because the district already owned it and would have had to pay Star more to supply such equipment for a year than it would have cost to purchase the equipment new. Star employees checked in and out with the district’s employee so that he would know what posts were manned and that the district would have a check on the hours worked by Star employees to compare with Star’s bills.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli concurs in result only.

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Mike Salgado, Appellant.
    Submitted June 11, 1982
    decided July 2, 1982

      APPEARANCES OF COUNSEL

      Eugene M. Beilin for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The discrepancy in the warrant, which described the apartment to be searched as 25J when in fact the apartment intended was 25C, was not material in view of the facts that the warrant also named the occupant, that the informant accompanied the police to the apartment, was admitted by the person named as occupant, and confirmed to the police that the occupant was the person referred to in the warrant, and that an amendment of the warrant to state the correct designation of the apartment was obtained before any search or seizure was conducted (see People v Taggart, 51 AD2d 863; People v Law, 55 Misc 2d 1075; cf. People v Nieves, 36 NY2d 396).

The objection concerning failure to establish due diligence in attempting to locate the informant is not well taken. If addressed to the failure to produce the informant at trial, the objection was not preserved. If addressed to the failure to produce him at the hearing on the warrant, there was no obligation to do so the warrant having been issued on the basis of his testimony under oath before the issuing Judge, a transcript of which was presented at the hearing.

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

Order affirmed in a memorandum.


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    The People of the State of New York, Appellant, v Solomon Butler, Respondent.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Mark L. Freyberg of counsel), for appellant.

      Shirley Werner and William E. Hellerstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed and judgment reinstated for the reasons stated in the dissenting memorandum by Justice Leonard H. Sandler at the Appellate Division (86 AD2d 811, 812; see, also, People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427) and the case remitted to the Appellate Division, First Department, for consideration of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]).

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


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    In the Matter of 244 East 53rd Street Restaurant, Inc., et al., Respondents, v New York State Liquor Authority, Appellant.
    Decided July 2, 1982

      APPEARANCES OF COUNSEL

      Stanley Stein and Stephen D. Kolinsky for appellant.

      Arthur Richenthal for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (86 AD2d 832).

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


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    Acor Plasticover Co., Inc., Respondent, v Wonderful Plastics Industry Co., Ltd., et al., Defendants. Cathay Plastics Industry Co., Inc., Appellant.
    Decided July 2, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the “judgment” sought to be appealed under CPLR 5601 (subd [d]) is not final.


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    Clarence W. Arrington, Appellant, v The New York Times Company et al., Respondent.
    Submitted May 17, 24, 1982
    decided July 2, 1982
   Motion by defendants Contact Press Images, Inc., Gorgoni and Pledge for reargument denied. Motions by Time Inc., et al., Associated Press, and American Society of Picture Professionals, Inc., et al., for leave to file briefs amici curiae on motion for reargument, denied.

Application by plaintiff for extension of the time within which to move for reargument denied. Motion by plaintiff for reargument dismissed as untimely, with $20 costs and necessary reproduction disbursements to defendant The New York Times Company.

Judge Wachtler taking no part.


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    In the Matter of the Claim of Frank Burns and Another, as Parents of Ricky Burns, Deceased, Respondent, and Richard B. Brabaw, Appellant, v Robert Miller Construction, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 28, 1982
    decided July 2, 1982
   Motion to amend remittitur denied. [See 55 NY2d 501.]

Judge Fuchsberg taking no part.


text:
    Board of Education of the City of New York, Respondent, v Norman Treyball, Defendant, and Norman Treyball, Jr., et al., Appellants.
    Submitted June 7, 1982
    decided July 2, 1982
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 46, p 204).


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    In the Matter of George R. La Cava, an Attorney, Appellant. Grievance Committee of the Seventh Judicial District, Respondent.
    Submitted June 28, 1982
    decided July 2, 1982
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the grounds that no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1) and the order of the Appellate Division is not one of modification (CPLR 5601, subd [a], par [in]).


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    The People of the State of New York, Respondent, v Benjamin Levin, Appellant.
    Submitted June 21, 1982
    decided July 2, 1982
   Motion to dismiss appeal denied.


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    The People of the State of New York, Appellant, v Charles Meriwether, Jr., Also Known as Rye Due, Respondent.
    Submitted June 7, 1982
    decided July 2, 1982
   Motion to dismiss appeal granted and appeal dismissed for failure, on the application for permission to appeal, to give the notice required by CPL 460.20 (subd 3, par [a]), without prejudice to a new application, if timely.


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    Emery I. Nagy, Appellant, v Sidney C. Wood, as Personal Respresentative of the Estate of Helen B. Thompson, Deceased, Respondent and Third-Party Plaintiff-Respondent. Seamen’s Bank for Savings et al., Third-Party Defendants-Respondents.
    Decided July 2, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


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    The People of the State of New York, Respondent, v Domingo Osorio, William Figueroa and Kenneth Villar, Appellants.
    Submitted June 28, 1982
    decided July 2, 1982
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


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    In the Matter of Joan Rosen, Appellant, et al., Petitioners, v Board of Education of East Ramapo Central School District et al., Respondents. Shari Alpert et al., Intervenors-Respondents. (And Another Proceeding.)
    Submitted June 28, 1982
    decided July 2, 1982
   Motion to dismiss appeals denied; motion to hold appeals in abeyance and to extend time within which to submit respondents’ briefs until disposition of appeals to the Appellate Division denied.


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    In the Matter of Peter F. Cohalan et al., Appellants, v Hugh L. Carey, et al., Respondents.
    Submitted July 14, 1982
    decided July 14, 1982
   On the court’s own motion, appeal taken as of right dismissed, without costs, on the ground that the order appealed from is not final within the meaning of the Constitution. Motion to vacate stay pursuant to CPLR 5519 (subd [a], par 1) denied as unnecessary inasmuch as the dismissal of the appeal terminates the stay. Motion for leave to appeal to this court dismissed on the ground that the nonfinal order sought to be appealed from is not one within the curative purpose of CPLR 5602 (subd [a], par 2). Under the circumstances of this case, the court, pursuant to CPLR 5514 (subd [a]), orders that any other method of appeal sought to be utilized by petitioners be initiated by service upon the attorneys for respondents and by the filing with the appropriate court of the papers in pursuance thereof not later than 11:00 a.m., July 15, 1982. The order sought to be appealed from, which denied a preliminary injunction, being not only nonfinal but also involving a nonreviewable exercise of discretion by the Appellate Division, it appears doubtful that any other avenue of appeal to or for review by this court is available (cf. CPLR 5602, subd [b], par 1; 5713).

Judge Jones taking no part.


text:
    Gloria Silbernagel et al., Respondents, v City of New York, Appellant.
    Decided September 2, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Aaron I. Blinder of counsel), for appellant.

      Ernest I. Neidorff for respondents.
   OPINION of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, order of Supreme Court, Bronx County, reinstated and question certified answered in the negative (Pierson v City of New York, 56 NY2d 950).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer; Judges Fuchsberg and Meyer on constraint of Pierson v City of New York (56 NY2d 950). Taking no part: Judge Gabrielli.


text:
    In the Matter of William Myles, Appellant, v Roger Phillips, as Sheriff of Orange County, et al., Respondents. In the Matter of Dean Brown, Appellant, v Roger Phillips, as Sheriff of Orange County, et al., Respondents.
    Decided September 2, 1982

      APPEARANCES OF COUNSEL

      Peter E. Bloom for appellants.

      James G. Sweeney, County Attorney (.Albert P. Pacione, Jr., of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 614).

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


text:
    Reisshold Developers, Inc., Appellant, v Arthur Walkill Corp., Defendant, and Citibank N. A., Respondent.
    Decided September 2, 1982

      APPEARANCES OF COUNSEL

      Harold Nachison for appellant.

      William C. Viets for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 815).

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


text:
    Frederick Feisthamel et al., Appellants, v State of New York (Department of Environmental Conservation), Respondent.
    Decided September 2, 1982

      APPEARANCES OF COUNSEL

      Frederick Feisthamel and Francis Byron, appellants pro se.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, without costs. Even if the arbitrator refused to hear evidence of petitioners’ character or their service record, such refusal was not misconduct, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 960).

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


text:
    Robert C. Biette, Plaintiff, v Evelyn M. Baxter, Appellant, and Zimmer-Pete, Inc., et al., Respondents.
    Decided September 2, 1982

      APPEARANCES OF COUNSEL

      Richard T. Horigan for appellant.

      Thomas M. Hirschen for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), the order of the Appellate Division should be reversed, with costs, the motion to vacate the lien denied and the question certified answered in the affirmative.

A no-fault insurer which pays first-party benefits to a covered person injured through the use or operation of a motor vehicle has a lien for medical expenses and lost wages against a recovery from the manufacturer of a defective prosthetic device installed as a result of the injury. Though not a joint tort-feasor the manufacturer is a noncovered person whose product aggravated the personal injury for which the insurer was required to pay first-party benefits and, under the provisions of subdivision 2 of section 673 of the Insurance Law, the insurer, therefore, has a lien for such payments against any recovery from the manufacturer (Aetna Ins. Co. v Springsteen, 78 AD2d 532).

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

On review of submissions pursuant to rule 500.2 (b), order reversed, etc.


text:
    In the Matter of Michael B., a Child Alleged to be Permanently Neglected. Broome County Department of Social Services, Respondent; Darlene B., Appellant.
    Submitted July 12, 1982
    decided September 2, 1982
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that an appeal as of right does not lie from the order of unanimous affirmance, termed by the Appellate Division one of modification.


text:
    In the Matter of Friends of the Pine Bush et al., Appellants, v Planning Board of the City of Albany et al., Respondents, and G.M.R. Properties, Inc., et al., Intervenors-Respondents.
    Submitted July 26, 1982
    decided September 2, 1982
   Motion, treated as one to dismiss appeal taken as of right, granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that appellants are not aggrieved by the modification at the Appellate Division, termed by that court a reversal (CPLR 5601, subd [a], par [iii]).


text:
    The People of the State of New York, Respondent, v Monroe Grosfeld, Appellant.
    Submitted July 9, 1982
    decided September 2, 1982
   Motion to vacate the Court of Appeals order of dismissal dated June 29, 1982 granted. [See 56 NY2d 1033.]


text:
    In the Matter of Justin M. Louis G. et al., Appellants; Monica M., Respondent.
    Submitted August 2, 1982
    decided September 2, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements, and stay pursuant to CPLR 5519 (subd [e]) vacated.


text:
    Norden Restaurant Corporation, Appellant, v Sons of the Revolution in the State of New York, Inc., Respondent.
    Submitted July 19, 1982
    decided September 2, 1982
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie as of right. Motion for leave to appeal granted. Motion for a stay granted.


text:
    Robert P. Stanwick, Respondent, v A.R.A. Services, Inc., et al., Defendants, and Andrew P. Meloni, as Sheriff of Monroe County, Appellant.
    Submitted July 6, 1982
    decided September 2, 1982
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding (CPLR 5602, subd [a], par 2).


text:
    Jesse D. Creel et al., Appellants, v Andrew P. O’Rourke et al., Respondents.
    Argued September 1, 1982
    decided September 3, 1982

      APPEARANCES OF COUNSEL

      August C. Nimphius, Jr., for appellants.

      Jonathan Lovett for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the Per Curiam opinion at the Appellate Division (88 AD2d 83).

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


text:
    In the Matter of Carol Krom, Appellant, v Roger J. Comerford, Respondent.
    Decided September 3, 1982

      APPEARANCES OF COUNSEL

      Jay A. Kaplan for appellant.

      Roger J. Comerford, respondent pro se.

      Alan N. Sussman, Law Guardian.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to the Family Court of Ulster County for further proceedings. Both that court and the Appellate Division held, in reliance on our decision in Matter of Nehra v Uhlar (43 NY2d 242), that the petitioner was required to establish extraordinary circumstances as a predicate for any change in the prior custody order. While this case was on appeal we held in Friederwitzer v Friederwitzer (55 NY2d 89, 95) that “Nehra’s phrase ‘absence of extraordinary circumstances’ is to be read as ‘absence of countervailing circumstances on consideration of the totality of circumstances’, not that some particular, sudden or unusual event has occurred since the prior award”. Thus the case should be remitted to the Family Court solely for reconsideration in light of the Friederwitzer decision. It should be emphasized that we do not intend by this disposition to suggest that we are of the view that the court should have granted petitioner’s application or should do so upon remittal. On the contrary, the facts of this case, including the respondent’s intention to take the child to Texas, present a custody question clearly within the Family Court’s sound discretion (see, e.g., Weiss v Weiss, 52 NY2d 170; Priebe v Priebe, 55 NY2d 997; Dean v Dean, 79 AD2d 876, mot for lv to app den 52 NY2d 706; Milici v Milici, 57 AD2d 946).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and matter remitted to Family Court, Ulster County, for further proceedings’ in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v Frederick J. Zirpola, Appellant.
    Decided September 3, 1982

      APPEARANCES OF COUNSEL

      Joseph R. Connelly and Rose H. Sconiers for appellant.

      Richard J. Arcara, District Attorney (John J. De Franks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the order of the Appellate Division should be modified and the case remitted to the County Court, Erie County, for a hearing on exceptional circumstances (CPL 30.30, subd 4, par [g]).

The “exceptional circumstances” which may justify a delay in prosecution are explicitly “not limited to” cases where a continuance has been granted. The unavailability of a prosecution witness may be a sufficient justification for delay (cf. People v Goodman, 41 NY2d 888), provided that the People attempted with due diligence to make the witness available (People v Washington, 43 NY2d 772; see CPL 30.30, subd 4, par [g], cl [i]). Whether the codefendant was at any time unavailable as a witness and what the People did to make him available are questions of fact on which the People have the burden of proof (People v Berkowitz, 50 NY2d 333), but on which no hearing was held because People v Osgood (52 NY2d 37) and People v Lomax (50 NY2d 351) had not been decided when the speedy trial motion was heard. The People are, therefore, entitled to a hearing at which to show exceptional circumstances (People v Warren, 81 AD2d 872; cf. People v Havelka, 45 NY2d 636).

Accordingly, the matter should be remitted for such a hearing. If thereafter the motion is again denied, defendant’s conviction should stand and an amended judgment should be entered reflecting that disposition, any appellate review of which will be limited to the speedy trial ruling. If, on the other hand, the speedy trial motion is granted, defendant’s conviction should be vacated and the indictment should be dismissed.

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

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


text:
    Robert B. Beachboard, Appellant, v Columbia University et al., Respondents.
    Decided September 3, 1982
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal does not lie (NY Const, art VI, § 3, subd b, par [7]). Moreover, the order appealed from does not finally determine the action within the meaning of the Constitution; it involves a question of discretion of the type not reviewable by this court (Cohen and Karger, Powers of the New York Court of Appeals, § 147, pp 586-587); and a substantial constitutional question is not directly involved (CPLR 5601, subd [b], par 1).


text:
    Celia Haggerty et al., Appellants, v Larry Berman et al., Respondents, et al., Defendant.
    Submitted August 9, 1982
    decided September 3, 1982
   Motion, insofar as it seeks leave to appeal from the order of affirmance, denied; and, insofar as it seeks leave to appeal from the order denying reargument, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to respondents.


text:
    Jonari Management Corp., Respondent, v St. Paul Fire & Marine Insurance Co., Appellant.
    Submitted July 26, 1982
    decided September 3, 1982
   Motion to dismiss appeal denied.


text:
    Rita Valentine, Appellant, v City of New York et al., Respondents.
    Submitted July 19, 1982
    decided September 3, 1982
   Motion to dismiss a portion of the appeal herein granted and the appeal as against respondent Filomena Castorina dismissed, with costs and $20 costs of motion, upon the ground that appellant failed to appeal to the Appellate Division from the adverse judgment of Supreme Court in favor of said respondent.


text:
    Betty Wingerter, as Administratrix of the Estate of Peter P. Wingerter, Deceased, Respondent, v State of New York, Appellant.
    Submitted July 19, 1982
    decided September 3, 1982
   Motion to dismiss appeal denied.


text:
    Brabazon Agency, Inc., Appellant, v John Donohue, Respondent.
    Decided September 8, 1982

      APPEARANCES OF COUNSEL

      Wayne L. Graff for appellant.

      Michael J. Trainor for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the judgment of Supreme Court, Greene County, reinstated. The findings of the trial court more nearly comport with the weight of the evidence.

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


text:
    Robert Creech, Individually and as Administrator of the Estate of Mary V. Creech, Deceased, et al., Plaintiffs, v Jens Knitter, Defendant. (Action No. 1.) Robert Creech, Individually and as Administrator of the Estate of Mary V. Creech, Deceased, et al., Appellants, v State Farm Mutual Automobile Insurance Company, Respondent. (Action No. 2.)
    Decided September 8, 1982

      APPEARANCES OF COUNSEL

      Allan Kuslansky for appellants.

      Thomas N. O’Hara for respondent.
   OPINION OF THE COURT

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

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


text:
    The People of the State of New York ex rel. Robert Collins, Also Known as Willie J. Jones, Appellant, v Kenneth J. Braun, as Sheriff of Erie County, Respondent.
    Decided September 8, 1982

      APPEARANCES OF COUNSEL

      Rose H. Sconiei's and Charles D. Halvorsen for appellant.

      Richard J. Arcara, District Attorney (Kurt T. Sajda of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and matter remitted to Supreme Court, Erie County, for a hearing on the petition. Taken at face value, relator’s papers were sufficient to entitle him to have the court “hear the evidence” on whether, as he in effect claims, he is not the escapee named in the South Carolina warrant (see CPLR 7009, subd [c]; People ex rel. Degina v Delaney, 53 AD2d 880).

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


text:
    In the Matter of Robert S. Hondzinski, Respondent, v County of Erie et al., Appellants.
    Decided September 8, 1982

      APPEARANCES OF COUNSEL

      Eugene F. Pigott, Jr., County Attorney (Justyn E. Miller of counsel), for appellants.

      Francis J. Offerman, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, without costs, and proceeding dismissed. From the undisputed evidence, it cannot be said as a matter of law that the petitioner’s duties as deputy sheriff in fact did not include ones civil in nature. It follows that he was exempt from the classified civil service until a local law (Local Laws, 1973, Nos. 4, 5 of Erie County), which covered him in, went into effect. (Matter of Flaherty v Milliken, 193 NY 564).

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


text:
    In the Matter of The Shubert Organization, Inc., Respondent, v Tax Commission of the City of New York et al., Appellants.
    Argued September 2, 1982
    decided September 8, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gary Schuller, Leonard Olarsch and Regina Feder of counsel), for appellant.

      Emilio Nunez and Benjamin E. Alter for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for clarification of whether its order reinstates the existing land and total tax assessments for the years under review and affirms the confirmation of those assessments, or whether it vacates only the land assessment and confirms the building value found by Special Term, thus reducing the total assessment by $175,000 in the first year under review and by $200,000 in each of the succeeding five years under review.

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


text:
    The People of the State of New York, Appellant, v Eric F. Szychulda, Respondent.
    Argued September 1, 1982
    decided September 8, 1982

      APPEARANCES. OF COUNSEL

      Patrick Henry, District Attorney (Ronald E. Lipetz of counsel), for appellant.

      Arthur V. Graseck, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

By section 50-a of the Civil Rights Law the Legislature in order to protect the confidentiality of personnel records of police officers established a specific procedure to be followed before a court should order their production. Although defendant’s attorney failed to follow that procedure, the People did not bring the section to the attention of the District Court Judge either on the return date of defendant’s notice of application for subpoena or when the case was called for trial. Under those circumstances, we cannot say that the District Judge was without jurisdiction to so order the subpoena or that his dismissal of the petit larceny and criminal trespass charges against defendant was an abuse of discretion (cf. People v Wingard, 33 NY2d 192).

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

Order affirmed in a memorandum.


text:
    In the Matter of G & R Electrical Contractors, Inc., Appellant, v John C. Egan, as Commissioner of the Office of General Services of the State of New York, et al., Respondents.
    Decided September 8, 1982

      APPEARANCES OF COUNSEL

      Laurence I. Fox for appellant.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Justice Paul A. Yesawich, Jr., at the Appellate Division to which we add only that appellant’s argument based upon Vitanza v City of New York (40 NY2d 872) is misplaced. The Vitanza case involved a plumbing contract which by State licensing statute could not be awarded to one not a licensed plumber. In the instant case, we deal with a bid condition which specified that the “Installer”, as distinct from the contractor, be listed by Underwriters Laboratories.

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


text:
    Leo Bekermus, Doing Business as Island East Realty, Respondent, v Rosalie Allen et al., Appellants.
    Submitted August 16, 1982
    decided September 8, 1982
   Motion for leave to appeal, made on behalf of defendants Sanford Nalitt and Chatham Realty Corp., and on behalf of defendant Allen’s Acres, Inc., dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; CPLR 5611). Motion for leave to appeal, made on behalf of defendant Rosalie Allen, dismissed upon the ground that that defendant is not a party aggrieved by the order of the Appellate Division (CPLR 5511). Twenty dollars costs and necessary reproduction disbursements to plaintiff.


text:
    The People of the State of New York, Respondent, v James Carney, Appellant.
    Submitted August 30, 1982
    decided September 8, 1982
   Motion to continue bail and extend stay granted and stay continued pending determination of the appeal herein.


text:
    The People of the State of New York ex rel. Stephen Gist, Appellant, v Eugene LeFevre, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted June 21, 1982
    decided September 8, 1982
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b]) and no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]). Motion for leave to appeal denied.


text:
    Anthony Grace & Sons, Inc., et al., Appellants, v New York Telephone Company et al., Respondents.
    Submitted August 2, 1982
    decided September 8, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements to respondents Telephone Company and Consolidated Edison.

Judges Gabrielli and Fuchsberg taking no part.


text:
    The People of the State of New York ex rel. Joseph Peters, Also Known as Peta, Appellant, v Stephen Dalsheim, as Superintendent of Downstate Correctional Facility, Respondent.
    Decided September 8, 1982
   Appeal transferred to the Appellate Division, Second Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2; Matter of Bartsch v State of New York, 33 NY2d 938).


text:
    Judith Roome, Appellant, v Norman S. Roome, Jr., Respondent.
    Decided September 8, 1982
   Appeal taken from so much of the order as granted plaintiff a money judgment and denied plaintiff’s application for an order of contempt, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 43, pp 169-171, 174-176).


text:
    In the Matter of the Claim of Antoinette Yannon, Respondent, v New York Telephone Company, Appellant. Workers’ Compensation Board, Respondent.
    Submitted August 16, 1982
    decided September 8, 1982
   Motion for leave to appeal denied.

Judges Gabrielli and Fuchsberg taking no part.


text:
    The People of the State of New York, Respondent, v Willibald Beslanovics, Appellant.
    Decided September 2, 1982
    October 7, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Lynn W. L. Fahey for appellant. .

      John J. Santucci, District Attorney CMichael J. Connolly of counsel), for respondent.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and indictment dismissed. The trial court’s failure to honor defense counsel’s timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal (People v Newman, 46 NY2d 126).

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

October 7, 1982

On the court’s own motion, remittitur recalled and, when returned, it will be amended to read as follows: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and indictment dismissed. The trial court’s failure to honor defense counsel’s timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal (People v Newman, 46 NY2d 126). Because defendant was convicted of a lesser included offense, the indictment must be dismissed (People v Mayo, 48 NY2d 245).


text:
    The People of the State of New York, Respondent, v Frank Barbara, Appellant.
    Decided September 9, 1982

      APPEARANCES OF COUNSEL

      William E. Hellerstein and Jonathan Golomb for appellant.

      Elizabeth Holtzman, District Attorney (Michael J. Halberstam of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. The statutorily mandated sentence is not unconstitutional as applied to this defendant. (People v Broadie, 37 NY2d 100; People v Jones, 39 NY2d 694.)

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


text:
    The People of the State of New York, Respondent, v Robert Taylor, Appellant.
    Decided September 9, 1982

      APPEARANCES OF COUNSEL

      Jonathan I. Golomb and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Robin Dolsky of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. Whether defendant’s remark constituted a request for counsel, and whether the defendant was induced into making statements by a promise of leniency or a police officer’s legal advice, are questions of fact. These factual issues are beyond this court’s scope of review, inasmuch as the determination denying defendant’s motion to suppress statements is supported by the record (People v McRay, 51 NY2d 594; People v Eisenberg, 22 NY2d 99).

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


text:
    Harry P. Whitney, Appellant, v Andrea R. Whitney, Respondent.
    Decided September 9, 1982

      APPEARANCES OF COUNSEL

      Frederick C. Meyer and Steven M. Schapiro for appellant.

      Raoul Lionel Felder and Myrna Felder for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for a review of the facts and the exercise of discretion, if appropriate. CPLR 3211 (subd [a], par 4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. Thus, it was error for the Appellate Division to have reversed, on the law, the lower court’s exercise of discretion in deciding the instant motion.

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


text:
    Lori Chiccino, Appellant, v Doris Hartman et al., Respondents.
    Decided September 9, 1982

      APPEARANCES OF COUNSEL

      David P. Elkovitch for appellant.

      Scott H. Smith for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (87 AD2d 1002).

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