text:
    In the Matter of Kenneth C. Jones, Respondent, v New York State Board of Elections, Respondent, and James D. Brewster, Appellant. In the Matter of Paul G. Spaulding, Appellant, v New York State Board of Elections and Kenneth C. Jones, Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      James D. Brewster, appellant pro se.

      David P. Elkovitch for Kenneth C. Jones, respondent.

      Thomas P. Zolezzi and James B. Cantwell for New York State Board of Elections, respondent.
   OPINION OF THE COURT

In each case: Order reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated in the following memorandum: Considering the fact that the applicable statute (Election Law, § 6-132) gives no notice as to the requirements for inclusion in designating petitions where the nomenclature of the local electoral subdivisions is materially different from that employed in the statute, there can be no insistence on literal compliance with the statutory prescriptions. That being so, we conclude that the designating petitions in this instance were in sufficient conformity with the requirements of section 6-132. Obviously, there should be prompt legislative correction of this anomaly, peculiar to one county, by addition of appropriate nomenclature or by exception to the State statute (Election Law, § 4-100).

In Matter of Spaulding v New York State Bd. of Elections: We agree with the Appellate Division that the petition to validate was timely.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Charles E. Morris, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, and Albert A. Capellini et al., Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      B. Anthony Morosco for appellant.

      Samuel S. Yasgur, County Attorney (Lester D. Steinman of counsel), for Albert T. Hayduk and others, respondents.

      Arthur L. Altman for Albert A. Capellini, respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs. The statutory language which we have previously interpreted as requiring a subscribing witness to a designating petition in all areas of the State to list his current assembly district (Matter of Vari v Hayduk, 42 NY2d 980; see Matter of Rutter v Coveney, 38 NY2d 993) remains unchanged by the recent recodification of the Election Law (compare Election Law, § 6-132, subd 2, with L 1971, ch 424). Had the Legislature wished to change the law so as to require only those subscribing witnesses who reside in New York City and Nassau County to list their current assembly district, it could have done so quite simply, as it has done with respect to signatories to petitions (see Election Law, § 6-130; Election Law, § 6-132, subd 1, as amd by L 1978, ch 373, § 57). Indeed, legislation to that effect was introduced during the 1978 session of the Legislature (see 1978 S9431, A12741). That proposal was not enacted into law.

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

Order affirmed.


text:
    In the Matter of Major R. Owens, Appellant, v Alfred Sharpton et al., Respondents. In the Matter of Annie Nicholson et al., Appellants, v Alfred Sharpton et al., Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      H. Spencer Kupperman for appellants.

      M. Douglas Haywoode for respondents.
   OPINION OF THE COURT

Memorandum.

The order insofar as appealed from should be affirmed, without costs. Respondent candidate was disqualified as a candidate in the Democratic primary election for the office of State Senator on a finding that he did not comply with the residency requirements of section 7 of article III of the State Constitution. No challenge was made to the signatures on the designating petitions themselves, and the petitions were validated insofar as they designated a committee to fill vacancies. Special Term declined to find fraudulent design in the residency errors and the Appellate Division unanimously affirmed. In these circumstances disqualification of a candidate does not invalidate the filed petitions as such in toto, and they remain valid to permit the named committee to fill vacancies to make an appropriate substitution (Election Law, § 6-148, subd 2). Where as here, a candidate is disqualified but there is no finding that either the petition or petition gathering process is tainted by fraud, the committee is empowered to make this substitution (see Matter of Grieco v Bader, 43 Misc 2d 245, affd 21 AD2d 751; Matter of Marley v Hamilton, 55 AD2d 864, mot for lv to app den 40 NY2d 801). Where, on the other hand, the designating petition itself is "invalid”, the result will be different (see Matter of Fotopoulos v Board of Elections, 45 NY2d 807 [decided herewith]).

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

Motion for leave to appeal granted (August 30, 1978). Order affirmed, without costs.


text:
    In the Matter of Henry G. Klemann, Appellant, v Remo J. Acito et al., Constituting the New York State Board of Elections, and Augustine F. Moran, Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Thomas B. Higgins for appellant.

      Elbert H. Watrous, Jr., for Augustine F. Moran, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of William B. Finneran, Respondent, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, Respondents, and Peter J. Toner, Appellant.
    Argued August 30,1978;
    decided September 1,1978

      APPEARANCES OF COUNSEL

      August C. Nimphius, Jr., for appellant.

      Thomas J. Abinanti for petitioner-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Subdivision 1 of section 6-132 of the Election Law provides that a candidate must state his place of residence on the designating petition. Here, with respect to his place of residence, the appellant listed Scarsdale on sheets 1 through 11 and Greenburgh on sheets 12 through 15. In fact as the trial court found, the appellant resides within the Town of Green-burgh and not within the Town of Scarsdale, two separate nonoverlapping municipalities. There is no indication on the record before us that appellant ever resided in the Town of Scarsdale (cf. Matter of Ferris v Sadowski, 45 NY2d 707. Thus the Appellate Division was correct in holding that sheets 1 through 11 were invalid.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Robert De Santis, Respondent, v Angela Pedone et al., Constituting the Board of Elections of Oneida County, Respondent, and Joseph Pasqualetti, Appellant.
    Argued August 30,1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Thomas Spargo and Philip J. Sanzone for appellant.

      Paul A. Worlock for respondent.
   OPINION OF THE COURT

Order of the Appellate Division which modified the judgment of Supreme Court affirmed, without costs, on the memorandum at the Appellate Division. The Appellate Division orders which affirmed intermediate orders of Supreme Court were reviewed on the appeal from the final order.

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


author: Cooke, J.

text:
    In the Matter of Patricia Russell, Respondent, v Board of Elections of Chautauqua County, Appellant, and Samuel C. Alessi, Jr., Respondent.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Edwin J. Kuzdale, County Attorney, for appellant.

      R. Bard Schaack for petitioner-respondent.
   OPINION OF THE COURT

Memorandum.

The order is affirmed on the memorandum of the Appellate Division. In doing so, we note that the legislative intent to limit the acceptability of authenticating statements made pursuant to section 6-132 of the Election Law to ones signed by notaries public or commissioners of deeds becomes especially plain when the words of that statute are contrasted with the far broader language of the predecessor statute which it replaced. The latter, former section 135 of the Election Law, did not specify notaries, commissioners or others, but expressly included any "officer authorized to take affidavits”. We further point out that the power of those authorized to administer oaths or affirmations pursuant to CPLR 2309 is restricted by the prefatory phrase "Unless otherwise provided”. Section 6-132 is such a provision; its unambiguous language is therefore controlling (Matter of Dyte v Lawley, 31 Misc 2d 182, 184, affd 14 AD2d 827).

Cooke, J.

(dissenting). As witnessed by the result here, blind adherence to the terms of a rather vague statute may sometimes lead to harsh and absurd ends, resulting in the effective disenfranchisement of a significant number of voters. Because some of the signatures on the designating petition were authenticated by a Town Justice and a town councilman rather than by a notary public or commissioner of deeds (Election Law, § 6-132, subd 3), the majority has seen fit to uphold a denial of certification of respondent’s candidacy by the Board of Elections.

Section 298 of the Real Property Law grants to a Town Justice and a town councilman authority within a designated area to take acknowledgments or proofs of a conveyance of real property situate within the State. In turn, CPLR 2309 stipulates that, unless otherwise provided, an oath or affirmation may be administered by any person authorized to take acknowledgments of deeds by the Real Property Law. Finally, section 11 of the General Construction Law provides that "[w]hen the execution of any instrument or writing is authorized or required by law to be acknowledged * * * the acknowledgment may be taken or the proof made before any officer then and there authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk’s office”. In the absence of any indication of exclusivity to the contrary, these provisions are applicable to the case at bar (Election Law, § 1-102).

No valid reason has been found or propounded as to why the Legislature would deem only notaries public or commissioners of deeds capable of authenticating petitions. The underlying purpose of requiring strict compliance with the interdictions of the Election Law — that of identification and prevention of fraud — is inapplicable where there has been substantial compliance, where in any other context, the authentication would be accepted and where, as here, there is not even a suggestion of fraud.

From a practical standpoint, the difficulty in locating a notary or commissioner of deeds at certain times of day and in some areas should be kept in mind, undoubtedly a consideration of the Legislature. The elective franchise, in the absence of danger of fraud or confusion should be given every liberal construction to effect its beneficient purposes.

For these reasons, there should be a reversal.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Abraham Thompson, Appellant, v Thomas W. Wallace, as Executive Director of the New York State Board of Elections, and Norman M. Schneider, Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Prescott C. Sook for appellant.

      Morrell I. Berkowitz and Herbert Rubin for respondent.
   OPINION OF THE COURT

Memorandum.

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

Inasmuch as petitioner is an objector to respondent’s designating petition, rather than the candidate against whose petition the objections were filed, petitioner’s failure to commence this proceeding to invalidate the designating petitions within the 14-day period (Election Law, § 16-102, subd 2) is fatal (compare Matter of Bruno v Peyser, 40 NY2d 827, 828, with Matter of Pell v Coveney, 37 NY2d 494). Petitioner’s assertion that he may avoid the 14-day statutory limitation because he is a candidate for the same office as respondent is untenable (see Matter of Pell v Coveney, supra). Since it was petitioner who objected to the designating petition, he was obligated to commence this proceeding within the statutory time period, irrespective of any determination by the Board of Elections.

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

Order affirmed.


author: Wachtler, J.

text:
    In the Matter of Arthur Goodman et al., Appellants, v Albert T. Hayduk et al., Constituting the Board of Elections of the County of Westchester, and Raymond McNamara, Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Thomas J. Abinanti for appellants.

      Lawrence A. Mandelker for Raymond McNamara, respondent.
   OPINION OF THE COURT

Memorandum.

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

This special proceeding instituted pursuant to article 16 of the Election Law was brought on by service of an order to show cause accompanied by an annexed unverified petition. Section 16-116 of the Election Law requires that such a proceeding be "heard upon a verified petition”. To find an unverified petition nonetheless acceptable to institute the special proceeding would not serve practical purposes or advance the policy behind section 16-116 of the Election Law (cf. Matter of Diamond v Power, 21 AD2d 660, mot for lv to app den 14 NY2d 484; Matter of Becker v Power, 207 Misc 53; see Matter of Tuomey v Cohen, 296 NY 628; Matter of Bednarsh v Cohen, 267 App Div 133, mot for lv to app den 292 NY 723; Devine v Cohen, 73 NYS2d 317).

Wachtler, J.

(dissenting). I would reverse.

There was no defect in the procedure followed here. Petitioners commenced this proceeding by service of a show cause order and thus fully complied with the requirements of CPLR 304 which states: "A special proceeding is commenced and jurisdiction acquired by service of a notice of petition or order to show cause.”

After the action was commenced and before the hearing was held, petitioners served a copy of the verified petition and thus satisfied the additional requirement imposed by section 16-116 of the Election Law which states: "A special proceeding under the foregoing provisions of this article shall be heard upon a verified petition”.

Thus the statutes were literally, indeed strictly, complied with and the petition should not have been dismissed. There is of course no express statutory requirement that the proceeding be commenced by service of a show cause order with a veriñed petition annexed, nor is there any authority from this court for imposing such a requirement. Any amendment to the law to create this additional requirement or condition precedent should be made by the Legislature. As far as this case is concerned it is sufficient to note that the petitioner served a show cause order and the proceeding was in fact heard on a verified petition. That is all the law requires.

With respect to the merits I would note that the uninitialed changes which were the subject of objection cannot be said to be unexplained (compare Matter of White v McNab, 40 NY2d 912) in view of the hearing held by the Supreme Court. Since that court’s factual findings are conclusive at this stage I would agree with the Supreme Court that the objections must be rejected.

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

Order affirmed.


text:
    In the Matter of Harry C. Fotopoulos, Appellant, v Board of Elections of the City of New York, Respondent. In the Matter of Harry C. Fotopoulos, Appellant, v Commissioners of the Board of Elections in the City of New York, and Alfred J. Perlen, Respondents.
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Harry R. Pollack for appellant.

      Allen G. Schwartz, Corporation Counsel (Dean L. Silverberg, Joseph F. Bruno, Richard B. Cohen and Eugene B. Nathanson of counsel), for Board of Elections of the City of New York, respondent.

      Agostinho Dias Reis and Douglas A. Kellner for Alfred J. Perlen, respondent.
   OPINION OF THE COURT

Memorandum.

Orders of the Appellate Division affirmed, without costs. The statutory provisions for deferred effect of changed enrollments of voters previously registered are constitutional (Rosario v Rockefeller, 410 US 752, reh den 411 US 959; see Election Law, §§ 5-304, 5-308). Since the only candidate proposed to be designated was not an enrolled member of the party for the required period, the designating petition was invalid. For the consequences of such an invalid designating petition, see Matter of Di Lorenzo v Heffernan (187 Misc 766, affd 271 App Div 802, affd 296 NY 687). (Cf. Matter of Grieco v Bader, 43 Misc 2d 245, affd 21 AD2d 751; see, also, 1 Gassman, Election Law [2d ed], § 87, at p 480, 1977-1978 Cum Supp, at p 138.)

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

Orders affirmed.


text:
    In the Matter of Seymour Alper, Appellant, v Albert T. Hayduk et al., Constituting the Board of Elections of Westchester County, and William J. McDermott et al., Respondents.
    Argued August 30, 1978;
    decided September 1, 1978
    APPEARANCES OF COUNSEL

      Seymour Alper, appellant pro se.

      Samuel Yasgur, County Attorney (Lester D. Steinman of counsel), for Albert T. Hayduk and another, respondents.
   OPINION OF THE COURT

Motion for leave to appeal granted (Aug. 30, 1978).

Order affirmed, without costs (Matter of Vari v Hayduk, 42 NY2d 980; Matter of Rutter v Coveney, 38 NY2d 993; Matter of Morris v Hayduk, 45 NY2d 793, decided herewith).

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


text:
    In the Matter of Thomas F. Catapano et al., Respondents, v Gloria Goldstein, Appellant, et al., Respondents. (And Two Other Captions.)
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Paul Asofsky for appellant.

      Fabian G. Palomino and Galen C. Thomas for petitioners-respondents.
   OPINION OF THE COURT

Order reversed, without costs, and the judgment of Supreme Court, Kings County, reinstated on the dissenting opinion by Mr. Justice J. Irwin Shapiro at the Appellate Division.

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


text:
    In the Matter of Jose A. Quinones et al., Respondents-Appellants, v James F. Bass et al., Respondents, and Peter M. Rivera et al., Appellants-Respondents. (And Other Proceedings.)
    Argued August 30, 1978;
    decided September 1, 1978

      APPEARANCES OF COUNSEL

      Paul A. Victor, David N. Raucher, Stanley K. Schlein and Frank Vozza for Peter M. Rivera and others, appellants-respondents.

      Demostenes Santiago Roque for Jose A. Quinones and others, respondents-appellants.
   OPINION OF THE COURT

Memorandum.

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

On the appeal by petitioners in the proceeding instituted to invalidate the designating petition of Gonzalez, Silva and Velez we affirm the order of the Appellate Division which modified the order of Supreme Court to the extent of reversing the invalidation and granting ancillary incidental relief. Following the institution of the invalidation proceeding there was testimony presented before the referee by three subscribers of the challenged designating petition that the subscribing witness, Silva, himself a candidate on the petition, at the same time he obtained their signatures on the petition had also obtained their signatures on registration forms — the filing of which was a necessary prerequisite to their eligibility to subscribe a designating petition. Dates stamped on the registration cards at the time they were filed with the Board of Elections, which were earlier than the dates annexed to the signatures on the petition, indicated that the latter signatures had been postdated. The trial court concluded that the candidate Silva had participated in the postdating and by reason of that fraudulent conduct invalidated all of the otherwise valid 91 signatures which the referee found had been obtained by the candidate.

While in some instances misconduct of a candidate soliciting signatures on designating petitions might be of such character or magnitude as to warrant an inference that similar misconduct permeated other signatures obtained by him, we agree with the Appellate Division that this has not been shown to be such a case. Whether to draw an inference of permeation would usually be a question of fact (cf. Matter of Ruiz v McKenna, 40 NY2d 815). Here the Appellate Division made no different factual findings than did Special Term with respect to the postdating of the three signatures on the petition (and for that reason there is no merit to petitioners’ assertion that the Appellate Division was powerless to reverse the judgment of the trial court without a transcript of the hearing held by it before confirmation of the referee’s report); however, it found that conduct alone insufficient to support an inference of permeation such as to invalidate all the signatures procured by Silva. In view, inter alia, of the small number of proved incidents of postdating, we conclude that the determination of the Appellate Division more nearly conforms to the weight of the evidence.

Petitioners’ contention that an examination of petition sheets circulated by Silva, other than those containing the three signatures already discussed, and of the registration forms of the signers of those sheets demonstrates that signatures on those sheets were also postdated was rejected by both courts below. Such rejection, based as it was on factual determinations, is now beyond the scope of our review.

With respect to the appeal by petitioners in the proceeding instituted to invalidate the designating petition of Rivera, Ortiz and Feuer, the arguments advanced are addressed entirely to resolutions of factual issues concerning conduct surrounding the procurement of designating petition signatures and residence qualifications of one of the candidates and of certain subscribing witnesses, and to inferences contended for by petitioners but rejected in total by the trial court and the Appellate Division. In view of our limited jurisdiction, such arguments are of no avail.

For the reasons stated, the order of the Appellate División should be affirmed.

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

Appeal taken as of right by petitioners Quinones and others dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601). Motion by petitioners Quinones and others for leave to appeal granted. Order affirmed, without costs, in a memorandum.


author: Per Curiam.

text:
    In the Matter of Joseph Ferris, Respondent, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, Respondents, and John Jewel et al., Appellants.
    Argued August 30, 1978;
    decided September 1, 1978
    APPEARANCES OF COUNSEL

      Fabian G. Palomino and Galen C. Thomas for appellants.

      John W. Carroll for Joseph Ferris, respondent.
   OPINION OF THE COURT

Per Curiam.

We conclude that there is no occasion in this instance to reject the determination of Special Term, affirmed at the Appellate Division, that the petition designating petitioner as a candidate in the Liberal Party primary election to be held on September 12, 1978 for the office of Member of the Assembly from the 51st Assembly District is valid and in substantial compliance with the Election Law notwithstanding an inaccuracy in the statement of his residence address.

Petitioner, Joseph Ferris, is now the Assemblyman from the 51st Assembly District. On July 27, 1978 two petitions were filed with the New York City Board of Elections, each designating Ferris as a candidate for re-election. The Democratic Party petition accurately listed Ferris’ address as 292 Windsor Place. The Liberal Party petition was inaccurate; it listed his previous address, 974 47th Street. Each petition concededly contained more than a sufficient number of valid signatures for designation.

On July 31 there were filed with the Board of Elections an authorization by the Liberal Party of the designation of Ferris as its candidate, his acceptance of the Liberal Party designation and two affidavits, one by Ferris setting forth that the address on the petition was incorrect and that the error was without his fault or knowledge, the other by the individual who prepared the designating petition stating that he had been unaware of Ferris’ change of address.

Two of the respondents herein filed objections to the Liberal Party petition based on the inaccuracy in the stated address, and the Board of Elections invalidated the petition. The candidate thereupon instituted the present proceeding to validate that petition.

At the hearing in Special Term proof was introduced by the candidate, but none on behalf of the objectants. Ferris testified that he had run for the Assembly from the 51st Assembly District in six previous primary and general elections. He further stated that no other candidate named Joseph Ferris had run for public office in the 51st Assembly District and that he knew of no other person by that name living in the district. When he ran in 1976 his address in both his Democratic and Liberal designating petitions was 974 47th Street, his then residence. On October 1, 1977 he moved to 292 Windsor Place. Special Term declared the petition valid and the Appellate Division unanimously affirmed. We conclude that there is no reason to disturb the order of the Appellate Division.

Much attention has been focused in the argument before us on the time of filing the so-called corrective affidavit — four days after the last day to file designating petitions. (Cf. Matter of Adams v Power, 22 NY2d 783.) In our analysis, however, the determinative issue is whether the designating petition was initially fatally defective. The purpose of inclusion of the residence address of the candidate (Election Law, § 6-132, subd 1) is not only to facilitate the processing of his petition by the Board of Elections and to ease the task of one checking his qualification to run, but perhaps most important to assure that the signers of his petition are aware of the identity of their candidate.

Where, as here, there is no proof of any intention on the part of the candidate or of those who have solicited signatures on his behalf to mislead or confuse, and no evidence that the inaccuracy did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition or seeking to verify his qualification, we hold that there was warrant for the conclusion that the petition should not be invalidated. We note that there is here no explicit provision of the Election Law which manifests an intention on the part of the Legislature to mandate a literal or strict interpretation of the statute as is the case with respect to other provisions of the Election Law (e.g., § 1-106, subd 2; § 6-154, subd 2). (See Matter of Rosen v McNab, 25 NY2d 798; but, compare, Matter of Bayne v Sachs, 41 NY2d 1042 [denial of validation based in part on failure of candidate to list address].) The conclusion we have reached in this case, however, should not be interpreted as reflecting a readiness on our part to accept deviations from the literal requirements of the statute where opportunities for deception or the likelihood of confusion would be present; in such instances strict conformity would be required.

For the reasons stated, the order of the Appellate Division should be affirmed, without costs.

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

Motion for leave to appeal granted (Aug. 30, 1978). Order affirmed, without costs.


text:
    In the Matter of the Claim of Martina Cousin, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted July 31, 1978;
    decided September 1, 1978
   Motion, insofar as it may be regarded as seeking leave to appeal from the order of the Appellate Division denying the motion for reinstatement of appeal, dismissed as nonfinal (Cohen and Karger, Powers of the New York Court of Appeals, § 36, p 144).


text:
    Myron Mayer et al., Respondents-Appellants, v City Rent Agency et al., Appellants-Respondents, et al., Defendant, and Coalition Against Rent Increase Pass-Alongs (CARIP) et al., Intervenors-Appellants.
    Submitted July 31, 1978;
    decided September 1, 1978
   Motion for modification of statutory stay and for a preference dismissed as academic.


text:
    Anthony Baldine et al., Respondents, v John P. Gomulka, as Mayor of the City of Amsterdam, et al., Appellants.
    Submitted July 17, 1978;
    decided September 14, 1978
   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 (Matter of Toro v Malcolm, 42 NY2d 822; Matter of Steele v Board of Educ., 40 NY2d 846; Matter of Clayton v Board of Educ., 40 NY2d 842) and, since it was not entered in a "proceeding”, does not come within the special class of nonfinal orders appealable by permission of the Court of Appeals under CPLR 5602 (subd [a], par 2) (Grace Co. v State Univ. Constr. Fund, 41 NY2d 943; Regenbogen v Rent Stabilization Assn. of N. Y. C., 31 NY2d 668; Ofenloch v Gaynor, 28 NY2d 806).


text:
    Barbara Barrett, Appellant, v State Mutual Life Assurance Company, Respondent.
    Submitted July 10, 1978;
    decided September 14, 1978
   Motion for reargument denied, with $20 costs and necessary reproduction disbursements. Motion for alternative relief, treated as one to amend the remittitur to state that a Federal question was raised and necessarily passed upon, denied. [See 44 NY2d 872.]


text:
    Brenda Calloway, Respondent, v William Dalton et al., Appellants, and New York City Transit Authority, Respondent. City of New York, Third-Party Plaintiff-Respondent, v Broadway Maintenance Corp., Third-Party Defendant-Appellant.
    Submitted August 14, 1978;
    decided September 14, 1978
   Motion to dismiss the appeal herein taken by appellant Broadway Maintenance Corp. granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    William Manowitz, Respondent, v Jonas Senter et al., Appellants, et al., Defendant.
    Submitted August 21, 1978;
    decided September 14, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, 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; Walker v Sears, Roebuck & Co., 36 NY2d 695).


text:
    In the Matter of Thomas L. Baasch, Appellant, v Supreme Court of the State of New York, Appellate Division, Second Judicial Department, et al., Respondents.
    Submitted July 10, 1978;
    decided September 14, 1978
   Motion to vacate the order of this court dated June 13, 1978 transferring the appeal herein to the Appellate Division denied. [See 44 NY2d 929.]


text:
    In the Matter of Morgan Bloodgood, a Judge of the Town Court, Town of Malta, Third Judicial Department, Appellant.
    Submitted July 31, 1978;
    decided September 14, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from is not a final determination within the meaning of the Constitution (NY Const, art VI, § 22, subd j [former]).


text:
    In the Matter of Brooklyn Hospital et al., Respondents, v John F. Lennon, as Acting Superintendent of Insurance of the State of New York, Appellant, and Medical Malpractice Insurance Association, Intervenor-Appellant.
    Submitted August 28,1978;
    decided September 14,1978
   The court takes this occasion to restate the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298).


text:
    In the Matter of Duncan & Hill Realty, Inc., Appellant, v Department of State of the State of New York et al., Respondents.
    Submitted July 24, 1978;
    decided September 14, 1978
   Motion to dismiss the appeal taken as of right herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Respondent-Appellant. Irwin Karassik, Appellant-Respondent.
    Submitted September 5, 1978;
    decided September 14, 1978
   Motion to dismiss the appeal taken by appellant-respondent Karassik herein granted and the appeal dismissed, without costs, upon the ground that said appellant-respondent is not a party aggrieved (CPLR 5511). No appeal lies from an asserted error in the opinion of the court (Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 394-395).


text:
    In the Matter of Ellis Miles, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted July 17, 1978;
    decided September 14, 1978
   Motion to vacate the Court of Appeals order dated April 27, 1978 dismissing as untimely the appellant’s motion for leave to appeal herein denied. [See 44 NY2d 644, 789.]


text:
    In the Matter of Dorothy Mitchell, as Guardian for Keith Randall and Others, Respondent, v Philip L. Toia, as New York State Commissioner of Social Services, Appellant, et al., Respondent.
    Decided September 14, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of Farrone v Toia, 45 NY2d 775).


text:
    Myron Mayer et al., Respondents, v City Rent Agency et al., Appellants, et al., Defendant, and Coalition Against Rent Increase Pass-Alongs (CARIP) et al., IntervenorsRespondents.
    Submitted September 11, 1978;
    decided September 14, 1978
   Motion for modification of stay granted, with $20 costs of motion. The statutory stay under CPLR 5519 (subd [a]) is hereby vacated. The provisions of the judgment of Supreme Court, New York County, dated April 5, 1978 and entered April 6, 1978, except decretal paragraphs (7) and (8), shall take effect, provided, however, that (A) all monthly installments of rental increase pursuant to orders issued under section 33.8 of the Rent and Eviction Regulations, hereafter collected, shall be deposited in individual interest bearing escrow accounts for each building with a banking institution in accordance with the provisions of the order of Supreme Court, New York County, of December 13, 1977; and (B) such escrow collections shall be subject to applicable certification and notification provisions comparable to those of the order of December 13, 1977; and decretal paragraph (8) of said judgment is modified to the extent that all increased rentals heretofore granted but not collected by reason of the enactment of Local Law No. 76 of 1977 of the City of New York made collectible commencing August 1, 1978 pursuant to the order to show cause in this court dated July 11, 1978 in the monthly installments equivalent to the number of months such increases were not collected until such uncollected increases have been fully paid, be continued collectible, provided, however, that (C) all such monthly installments of rent increase hereafter so collected shall be deposited in individual interest bearing escrow accounts for each building with a banking institution in accordance with the provisions of the order of Supreme Court, New York County, of December 13, 1977; and (D) such escrow collections shall be subject to applicable certification and notification provisions comparable to those of the order of December 13, 1977. On the court’s own motion, decision and order of this court dated September 1, 1978 in motion No. 801 is amended to add that the appeal taken as of right by the City of New York is dismissed, without costs, upon the ground that no constitutional question is directly involved. [See 45 NY2d 818.]


text:
    The People of the State of New York ex rel. Sam Amato, Appellant, v Harry Fritz, as Superintendent of Auburn Correctional Facility, Respondent.
    Submitted August 7, 1978;
    decided September 14, 1978
   Motion for leave to appeal dismissed upon the ground that relator, having been released from imprisonment, is not entitled to the relief of habeas corpus (CPLR 7002, subd [a]; People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    James Rumbutis, Appellant, v State of New York, Respondent.
    (Claim No. 53057.)
    Submitted July 24, 1978;
    decided September 14, 1978
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division (CPLR 5601).


text:
    Lonnie Connors, Respondent, v Stewart Bowles, as Police Chief of the City of Poughkeepsie, et al., Appellants.
    Submitted July 31, 1978;
    decided September 21, 1978
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon., 37 NY2d 198).


text:
    Louis T. Di Lorenzo, Appellant, v Hugh Carey, as Governor of the State of New York, et al., Respondents. James A. Farrell, Appellant, v Hugh Carey, as Governor of the State of New York, et al., Respondents.
    Submitted July 24, 1978;
    decided September 21, 1978
   Motion to dismiss the appeal in Di Lorenzo v Carey granted and the appeal dismissed, without costs, upon the grounds that the modification at the Appellate Division is not substantial (CPLR 5601, subd [a], par [iii]) and no substantial constitutional question is directly involved (CPLR 5601, subd [b], par 1). Motion to dismiss the appeal in Farrell v Carey granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (CPLR 5601, subd [b],.par 1).


text:
    Harold G. Lacks, Respondent-Appellant, v Irene R. Lacks, Appellant-Respondent, et al., Defendants.
    Decided September 21, 1978
   Appeals from judgment entered June 7, 1978 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the judgment does not finally determine the action within the meaning of the Constitution (CPLR 5601, subd [d]; Lacks v Lacks, 32 NY2d 939).


text:
    In the Matter of Louis A. De Crosta, Appellant, v Carole Hallenbeck, Respondent.
    Submitted August 7, 1978;
    decided September 21, 1978
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie (CPLR 5601).


text:
    In the Matter of Simon Katz, Doing Business as Elmhurst Manor Home For Adults, et al., Appellants, v Bernard Shapiro, as Executive Director of the Board of Social Welfare of the State of New York, et al., Respondents.
    Submitted August 21, 1978;
    decided September 21, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the grounds that (1) as to the appeal from the May 1, 1978 order of the Appellate Division, no substantial constitutional question is directly involved, and (2) as to the appeal from the July 25, 1978 order of the Appellate Division, the order does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of William J. O’Hara, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted September 11, 1978;
    decided September 21, 1978
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie as of right (CPLR 5601). Motion for a stay dismissed as academic.


text:
    Peter J. Musso et al., Appellants, v Westfield Memorial Hospital et al., Respondents.
    Submitted September 11, 1978;
    decided September 21, 1978
   Motions to dismiss the appeal herein granted and the appeal dismissed, with one bill of costs and $20 costs of motion, upon the ground that no substantial constitutional question is directly involved (CPLR 1012, subd [b]; Colenzo v Kernan, 49 AD2d 809).


text:
    Adirondack Park Agency, Respondent, and Kildare Club, by its Treasurer, Ralph Friedman, et al., Intervenors-Respondents, v Ton-Da-Lay Associates et al., Appellants.
    Submitted July 31,1978;
    decided September 26,1978
   Motion for leave to appeal dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and therefore is not one which comes within the provisions of CPLR 5602 (subd [a], par 2). (See, e.g., Herman Constr. Co. v State Univ. Constr. Fund, 41 NY2d 943.)


text:
    Thomas L. Baasch, Appellant, v Faruolo, Caputi & Weintraub, Respondent.
    Decided September 26, 1978
   Appeal transferred, without costs, by the Court of Appeals sua sponte, on constraint of the Constitution of the State of New York (art VI, § 5, subd b), to the Appellate Division, Second Department, upon the ground that no substantial constitutional question is presented on this direct appeal.


text:
    Charles P. Martin, Appellant, v Alabama 84 Truck Rental, Inc., et al., Respondents, et al., Defendant.
    Decided September 26, 1978
   Cross appeal by defendants Alabama 84 Truck Rental, Inc., and another, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground it does not lie.


text:
    Oneida County Mobile Home Sales, Inc., et al., Respondents, v Niagara Mohawk Power Corporation, Appellant, and John J. Auer et al., Respondents.
    Submitted September 11,1978;
    decided September 26,1978
   Motion to dismiss appeal as to defendants-respondents denied. The dissent was in favor of the party taking the appeal (CPLR 5601, subd [a]; Estate of Canale v Binghamton Amusement Co., 36 NY2d 728).


text:
    The People of the State of New York, Respondent, v Robert E. Sawyer, Appellant.
    Decided September 26, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie.


text:
    Francine Schiffman, Respondent, v Steven Schiffman, Appellant.
    Submitted September 5, 1978;
    decided September 26, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, p 156).


text:
    Robert C. Yates et al., Appellants, and Bernardo S. Evangelista, Plaintiff-Intervenor, v Cohoes Memorial Hospital, et al., Respondents.
    Decided September 26, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    The People of the State of New York, Appellant, v Pierre Limage, Respondent.
    Argued September 14, 1978;
    decided October 19,1978

      APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Michael Halberstam of counsel), for appellant.

      Henry Mark Holzer and Erika Holzer for respondent.
   OPINION OF THE COURT

Order affirmed on the memorandum at the Appellate Division (57 AD2d 906).

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


text:
    In the Matter of Gillette Company, Respondent, v State Tax Commission et al., Appellants.
    Argued September 14, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Francis Dow, Ruth Kessler Toch and Robert W. Bush of counsel), for appellant.

      Francis A. Goodhue, Jr., and Marjorie S. Elkin for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs. The dispositive issue presented on this appeal is whether respondent’s activities within New York State, which are concisely delineated in the opinion by then Justice A. Franklin Mahoney at the Appellate Division (56 AD2d 475), go beyond the bounds of what may reasonably be deemed "mere” solicitation. We agree with the Appellate Division that they do not. Since respondent has not engaged in any additional activities within the State, it is exempt from the tax sought to be imposed by appellant (see US Code, tit 15, § 381, subd [a]; cf. United States Tobacco Co. v Commonwealth, 386 A2d 471 [Pa]).

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

Order affirmed.


text:
    In the Matter of the Arbitration between Richard Spychalski, Respondent, and Continental Insurance Companies, Appellant.
    Argued September 12,1978;
    decided October 19,1978

      APPEARANCES OF COUNSEL

      George G. Mackey for appellant.

      Jon Charles Dupee and Michael J. Kelly for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant insurer is precluded from seeking a judicial stay of arbitration inasmuch as its application therefor was not properly served within the 20 days prescribed by statute (CPLR 7503, subd [c]). Additionally the payment by Utica Mutual Insurance Company of the full $10,000 under the standard New York uninsured motorist indorsement, while relevant to the consideration and determination of the claims of the parties by the arbitrator, is unrelated to appellant’s commitment to submit such claims to arbitration. Finally, we think it impermissible for us to express any view as to "whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute”. (CPLR 7501.)

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

Order affirmed.


text:
    In the Matter of Eugene Gold, as District Attorney of Kings County, Respondent, v J. Irwin Shapiro, as Associate Justice of the Appellate Division of the Supreme Court in the Second Judicial Department, Respondent, and Walfredo Gonzalez, Appellant.
    Argued September 13, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Carol Berkman and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Richard A. Finkel of counsel), respondent pro se.

      Richard Emery for New York Civil Liberties Union, amicus curiae.

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Gerald J. Ryan of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Judgment affirmed, without costs, on the opinion by Mr. Justice Samuel Rabin at the Appellate Division (62 AD2d 62).

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


text:
    The People of the State of New York, Respondent, v George Crandall, Appellant.
    Argued September 14, 1978;
    decided October 19, 1978
    APPEARANCES OF COUNSEL

      Richard A. Kohn for appellant.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While the risk of a coerced verdict is to be carefully avoided, we cannot conclude that the Appellate Division erred when it affirmed the jury’s verdict of guilt in this case. It is true that under the Trial Judge’s instructions this jury was held until the verdict was rendered at 3:27 a.m. — following an afternoon and evening of deliberation after a two-day, second trial. There is nothing in the record, however, to demonstrate fatigue or other distress on the part of the jurors at the time of their note at 2:14 a.m. that they could not reach a unanimous verdict, nor did they ask to be discharged. Defendant’s contention that the bare recital of the law by the Trial Judge at that time should have been accompanied by supplemental instructions is unavailing because he requested none. Nor did defense counsel at any time request that deliberations be recessed to the following morning. Finally, when midway through the final hour of their deliberations the Judge sent for the jury they requested "some additional time”. Twenty-five minutes later they returned their verdict. We agree with the Appellate Division that there is nothing in this record to suggest that the lateness of the hour or the action of the court coerced the verdict.

We have examined defendant’s other contentions and find them to be without merit.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v Larry Brown, Appellant.
    Argued September 12, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Daniel M. Ross and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Leonard G. Kamlet and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division reversed and new trial ordered. The record, unlike as in most "ineffective counsel” cases, demonstrates beyond cavil that defendant was lacking effective counsel throughout the prosecution against him. For whatever reason, despite undoubtedly sincere efforts on his part, assigned defense counsel failed to protect the interests of his client. The result of reversal is unfortunate since the guilt of defendant was, and even with effective counsel most likely would have been, established by overwhelming evidence. Nevertheless, defendant was entitled to a fair trial represented by effective counsel. (See, e.g., People v Droz, 39 NY2d 457, 462, and cases cited; People v Bennett, 29 NY2d 462, 465-467.) Generally, the ineffectiveness of counsel is not demonstrable on the main record, but in this case it is. Consequently, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10 (cf. People v Brown, 28 NY2d 282, 286-287).

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

Order reversed, etc.


text:
    Amsterdam Savings Bank et al., Respondents, v City View Management Corp., Intervenor-Appellant, et al., Defendants.
    Argued September 13, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Jerome D. Brownstein for intervenor-appellant.

      Joel B. Hersch and Louis A. Brevetti for respondents.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed, without costs. Submission by respondents of material outside the record and discussion in respondents’ brief of such material have been disregarded. Because of the inclusion of the offending material costs are not awarded.

Intervenor-appellant was not, as respondent banks argue, just any member of the public, but a serious bidder who had made various commitments to effectuate its bid. In addition, as an alleged assignee it had an equitable ownership interest in the property resulting from a contract of sale made with mortgagor, defendant in this foreclosure proceeding (cf. Flickinger v Glass, 222 NY 404, 409-410). Nevertheless, it is unnecessary to consider whether intervenor has standing to attack the foreclosure sale, because on any view its contentions must fail because of laches. The three-month delay in taking action after having learned within minutes of the irregularity in the foreclosure proceeding was inexcusable, and caused a substantial change in position by respondents, who had contracted to resell the property to third parties. This combination of inexcusable delay and detriment to other parties requires application of the doctrine of laches (see, e.g., Black v Black, 22 AD2d 673). While this is a matter generally left to the discretion of the courts below, which did not expressly pass on the laches question, in this case the record requires application of the laches doctrine as a matter of law.

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

Order affirmed.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Edward Vereen, Appellant.
    Argued September 11, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Oren Root, Alice L. Litter and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Timothy J. McGinn and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this case the court, without request from the defendant, charged the jury that no adverse inference could be drawn from the defendant’s failure to testify at the trial. At the conclusion of the charge defendant objected to the court’s submission of this instruction absent a request from the defendant to do so.

Under CPL 300.10 (subd 2), the court "must deliver” a "no inference” charge to the jury when requested by the defense (People v Britt, 43 NY2d 111). We do not read the statute conversely as establishing an absolute prohibition against the court exercising its discretion in submitting such a charge without a request from the defendant. This discretion, however, should be rarely exercised, since defense counsel, as a tactical matter, in many cases, may wish the charge not given.

Additionally, because of the significant difference from the standpoint of a defendant between the denial of a request for the "no inference” charge and the giving of that charge without request, there is a difference as to the availability of harmless error analysis. Where the request for the charge has been denied there can be no harmless error (People v Britt, supra). Where, however, as here the charge was given without request, there may be an application of the constitutional harmless error doctrine (People v Crimmins, 36 NY2d 230, 237). In this case, since the proof of defendant’s guilt was overwhelming, the error committed in submitting the charge, if even it be, was harmless.

We also reject defendant’s argument that the trial court erred in denying defendant’s motion to reopen the Wade hearing, since the court, having heard the testimony of the identifying officer, found that the identification was untainted by his observation of defendant’s photograph and was based instead on his independent recollection (People v Ramos, 42 NY2d 834, 835).

Fuchsberg, J.

(dissenting). It can hardly be disputed that CPL 300.10 (subd 2) is both a recognition of and an attempt to deal with the sensitive problem that a defendant in a criminal case faces when he chooses not to take the stand. Though no unfavorable inferences are to flow from the exercise of that constitutional privilege (cf. Brooks v Tennessee, 406 US 605; Griffin v California, 380 US 609), failure to recognize that that ideal is seldom achieved would be to ignore reality.

Whether to give or not to give a "no inference” charge in order to attempt to eradicate a lurking adverse inference has long been an unanswerable question (see People v Britt, 52 AD2d 811, 813 [Birns, J., dissenting], revd 43 NY2d 111; 18 ALR3d 1335). Experienced Judges and lawyers know that one course or the other will not necessarily quell whatever degree of prejudice may exist, but, depending on the circumstances of a particular case, indeed may heighten it.

Confronted with this dilemma, the defendant — the person directly affected — should be the only one empowered to make the tactical decision as to whether a trial court should of should not deliver a "no inference” instruction (see Lakeside v Oregon, 435 US 333, 342 [Stevens, J., dissenting]; Gross v State, 261 Ind 489; Russell v State, 240 Ark 97; People v Molano, 253 Cal App 2d 841).

Section 300.10 (subd 2), deliberately worded in terms of responsiveness to a defendant’s request alone, is a vigorous statement consonant with this view. By conditioning the "no inference” charge on a defendant’s request "but not otherwise”, the statute implies the converse as well: not only must the Trial Judge give the charge when a defendant asks for it, but he is not to do so when a defendant fails to so request, usually for fear that spotlighting his failure to testify will cause the jury to believe he has something to hide.

And now a word as to harmless error. I fail to see why, when a refusal to give a "no inference” charge over a defendant’s request is authoritatively regarded as reversible error (People v Britt, 52 AD2d 811, supra), the converse situation which we face here can be characterized as harmless (People v Mulligan, 40 AD2d 165). How can it be said that the statutory mandate has been more obviously violated or that the judicial interference with the defendant’s trial strategy is of greater dimension in the one case than it is in the other?

I would, therefore, vote to reverse and order a new trial.

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

Order affirmed.


text:
    TBS Enterprises, Inc., et al., Appellants, v Dime Savings Bank of New York, Respondent.
    Argued September 12, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Stanley J. Lacher for appellants.

      Dominick Giordano and Eugene U. De Vivo for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (55 AD2d 910).

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


text:
    In the Matter of Vincent R. Balletta, Jr., Appellant, v Secretary of State of the State of New York et al., Respondents, and Conservative Party of Nassau County, Intervenor-Respondent.
    Argued October 18, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Leonard Weintraub and Eileen V. Crowley for appellant.

      Bernard S. Meyer, Harold Ickes, Steven A. Chernis and Michele Turchin for Arthur D. Spatt, respondent and for intervenor-respondent.

      Eli Mellan, respondent pro se.

   OPINION OF THE COURT

Order reversed, without costs, and the judgment of Supreme Court, Nassau County, as modified to provide for the reconvening of the Conservative Party Convention for the Tenth Judicial District on or before October 23, 1978, reinstated on the opinion by Mr. Justice Leo F. McGinity at Special Term. (See, also, dissenting opinion of Mr. Justice Frank A. Gulotta, at the Appellate Division.) It is noted especially that the Judicial District Convention is powerless to vary the party committee rules with respect to the requirement that "[a]ll nominations at any convention shall be made by a majority vote of the delegates present and voting” (Rules and Regulations of the Conservative Party of the State of New York, art VIII, § 4). Application of the State Board of Elections to "permit the immediate printing and distributing of absentee ballots bearing the names of the candidates nominated up to the date of this court’s decision”, and the associated application of the Nassau County Board of Elections, denied.

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


text:
    300 West Realty Co., Appellant-Respondent, v City of New York, Respondent-Appellant.
    Argued September 13, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      George Sassower and Doris L. Sassower for appellant-respondent.

      Allen G. Schwartz, Corporation Counsel (Morris Einhorn and L. Kevin Sheridan of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

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

Examination of the sufficiency of the record on this appeal reveals the inadequate nature of the proof offered at trial by plaintiff, who had the burden of proof. Assessing the divergent findings of fact made by the Supreme Court and the Appellate Division, this court adopts the findings made by the latter. (See Matter of Town Bd. of Town of Clarkstown v Sterngass, 40 NY2d 888, 889; Cohen and Karger, Powers of the New York Court of Appeals, § 112.)

Fuchsberg, J.

(dissenting). Trial Term and the Appellate Division agreed that the city is liable to the plaintiff for the damages to the latter’s property resulting from the fire, exposure to the elements, vandalism and deterioration to which it was subjected during the period when the city had divested the plaintiff of ownership and possession. Both courts having done so, my own examination of the record as a whole convinces me that the elements of inadequacy, conclusoriness and discursiveness of proof and damages theory on both sides, leading as they did in this case to awards as divergent as $226,948 by the one court and $58,147 by the other, call at this juncture for a choice of neither, but instead that the case be remitted to Trial Term to afford further opportunity to each party to more clearly develop its position on compensatory damages. (See Cohen and Karger, Powers of the New York Court of Appeals, § 171, subd [c].)

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur in memorandum; Judge Fuchs-berg dissents and votes to reverse and remit for retrial on the issue of damages in a separate opinion.

Order affirmed.


author:
      Per Curiam.
     Wachtler, Fuchsberg, Cooke, JJ.

text:
    In the Matter of Winthrop Drake Thies, an Attorney and Counselor at Law, Appellant. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Argued September 11, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Alfred Berman for appellant.

      Nicholas C. Cooper for respondent.
   OPINION OF THE COURT

Per Curiam.

We decline the invitation to reconsider our decision of but a year ago in Matter of Chu (42 NY2d 490) in which we held that, under subdivision 4 of section 90 of the Judiciary Law, conviction of a Federal felony works an automatic disbarment in New York State of a defendant attorney. We then held that it is immaterial that there is no felony analogue under our State statutes matching the Federal felony. As we then noted, this marked a significant departure from our prior holding in Matter of Donegan (282 NY 285).

The thrust, if not the particular application, of the expressions of concern by our dissenting brothers pertains to the statutory mandate that "[a]ny person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellorat-law, or to be competent to practice law as such” (Judiciary Law, § 90, subd 4). If, as they urge, consideration should be given to the gravity of the offense and to mitigating circumstances, on principle this would seem to be equally true with respect to convictions for New York felonies. Yet, as the dissenters recognize, the validity of the concept of automatic disbarment as applied to New York felonies has long been upheld.

In Chu, for the reasons there articulated we concluded "that conviction of an attorney for criminal conduct judged by the Congress to be of such seriousness and so offensive to the community as to merit punishment as a felony is sufficient ground to invoke automatic disbarment. * * * we now perceive little or no reason for distinguishing between conviction of a Federal felony and conviction of a New York State felony as a predicate for professional discipline” (pp 493-494). Nothing has occurred in the intervening months to compel a different conclusion.

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

Wachtler, Fuchsberg, Cooke, JJ.

(dissenting). While we agree with the majority that summary disbarment of a New York attorney convicted of a New York State felony is mandated by statute (Judiciary Law, § 90, subd 4) as interpreted by prior decisional law (Matter of Donegan, 282 NY 285), we dissent from an unwarranted extension of this disbarment rule to all Federal felony convictions. Today’s decision may be viewed only as a direct overruling of Donegan and the establishment of a per se rule which compels the summary disbarment of a New York attorney convicted of any felony in a Federal court in this or any other State, regardless of whether our Legislature has denominated the offense as felonious. No longer may consideration be given to the gravity of the offense and mitigating circumstances, no matter how compelling; the drastic result is fixed. This inflexibly harsh rule needlessly rejects the principle that firm discipline can be achieved without sacrificing fairness and reason (see concurring opn Matter of Chu, 42 NY2d 490, 495). The abberational results which today’s determination will bring may now be avoided only by legislative action.

Chief Judge Breitel and Judges Jasen, Gabrielli and Jones concur in Per Curiam opinion; Judges Wachtler, Fuchsberg and Cooke dissent and vote to reverse in a memorandum.

Order affirmed.


text:
    The People of the State of New York, Respondent, v James Watson, Appellant.
    Argued September 12, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Abraham Werfel for appellant.

      John J. Santucci, District Attorney (Michael R. Berlowitz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

To sustain the conviction of rape in the first degree under the then applicable provisions of the Penal Law (§§ 130.35, 130.15), there must have been corroborative evidence, inter alia, of the element of "forcible compulsion”. The People urge three items of proof as meeting this requirement — evidence of prompt complaint, evidence of the complainant’s distraught emotional state immediately after the alleged assault, and evidence of bruises on the complainant’s body. We conclude that the proof in this record is insufficient as a matter of law. The proof of prompt complaint and distraught emotional state on the part of this complainant might go to an issue of consent, but would not tend to establish "forcible compulsion” as that term is defined (§ 130.00, subd 8). There was proof by the complainant’s mother that she was shown "a bruise on her back” — not otherwise located or described. The only further evidence that might in any way suggest that this bruise was referable to the alleged rape came from the complainant herself and accordingly cannot be accepted as satisfying the requirement of corroboration independent of the testimony of the alleged victim.

Defendant’s related convictions for possession of a weapon as a felony and for unlawful imprisonment must be reversed in consequence of the reversal of his conviction for rape. The other convictions are factually dependent on the conviction for rape in this instance. There is no occasion, however, to consider any doctrine of merger.

In view of this disposition it is unnecessary to reach the other contentions advanced by appellant.

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

Order reversed, etc.


text:
    United States Trust Company of New York, as Successor Indenture Trustee, Respondent, v First National City Bank, Appellant.
    Argued September 12, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      George J. Wade, Robert S. Blanc, JII, and Gary G. Lyons for appellant.

      Dugald Campbell Brown, James C. Sargent, James H. Bell, Hollace T. Cohen and Renee E. Ring for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the opinion by Mr. Justice Samuel J. Silverman at the Appellate Division (57 AD2d 285). Question certified answered in the affirmative.

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


text:
    In the Matter of the Arbitration between Aetna Casualty and Surety Company, Appellant, and Wilbert Bruton et al., Respondents.
    Argued September 13, 1978;
    decided October 19, 1978

      APPEARANCES OF COUNSEL

      Joseph D. Ahearn and J. Robert Morris for appellant.

      Larry E. Ribowsky for respondents.
   OPINION OF THE COURT

Order reversed and the matter remitted to Supreme Court, New York County, with costs to abide the event, for a hearing on the issue of coverage on the dissenting memorandum by Mr. Justice Samuel J. Silverman at the Appellate Division (58 AD2d 553-554).

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


text:
    300 West Realty Co., Appellant, v City of New York, Respondent.
    Argued September 13, 1978;
    decided October 19, 1978
   OPINION OF THE COURT

Appeal dismissed, without costs, upon the ground that the issues presented are moot.


text:
    In the Matter of Henry Pollak, Appellant, v Board of Assessors of the County of Nassau, Respondent.
    Submitted August 21,1978;
    decided October 19,1978
   OPINION OF THE COURT

Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    Clove Lakes Nursing Home et al., Appellants, v Robert P. Whalen, as Commissioner of the New York State Department of Health, Respondent.
    Argued September 15, 1978;
    decided October 24, 1978
    APPEARANCES OF COUNSEL

      Paul K. Rooney and Elliot L. Evans for appellants.

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

Per Curiam.

At issue in this declaratory judgment action is whether the State Commissioner of Health may, without first holding an evidentiary hearing, retroactively reduce reimbursement rates and recoup alleged overpayments to nursing homes receiving Medicaid reimbursement. Special Term held invalid such recoupment without a prior departmental hearing, but the Appellate Division reversed, holding a prerecoupment hearing unnecessary. Since it is concluded that adequate protection is provided so long as a hearing is held promptly after the adjustments and installment recoupments are ordered, failure to hold a prerecoupment hearing does not deprive nursing homes of property without due process of law. Hence, the order of the Appellate Division should be modified to declare valid the provisional recoupment of excess reimbursements without a hearing, and otherwise affirmed (see Matter of Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74).

For the years 1969-1973, Clove Lakes Nursing Home reported to the State Health Department its allowable costs for each year. The department used each year’s costs, adjusted for inflation, to compute the reimbursement rates for the following year (see, generally, Public Health Law, §§ 2803-2808, for the current provisions governing required reports and reimbursement rates for hospitals and nursing homes). Subsequently, however, the department audited Clove Lakes’ cost reports, and on December 4, 1975, notified the nursing home that numerous expenses included in the reports had been disallowed. Hence, the reimbursement rates computed on the basis of those reports were overly generous to the nursing home, to the extent of $450,000. The department seeks to collect this amount by reducing retroactively the reimbursement rates for the period from July 1, 1970 to December 31, 1975.

Clove Lakes contends that this adjustment, because it was without a prior evidentiary hearing, constitutes a deprivation of property without due process of law (Goldberg v Kelly, 397 US 254, 260-266). There should be little doubt that the nursing home is entitled to a hearing at which it may contest the department’s audit (see White Plains Nursing Home v Whalen, 42 NY2d 838, cert den 434 US 1066; see, also, 10 NYCRR 86-2.7 [f], the regulation now in effect). But that does not mean that the department is compelled, constitutionally, to hold the hearing before it recoups the alleged overpayments (Matter of Bradley v Whalen, 58 AD2d 664, app dsmd 42 NY2d 1103; Matter of Park Crescent Nursing Home v Whalen, 55 AD2d 801, 802-803, app dsmd 42 NY2d 975). Prerecoupment hearings are mandated, the Supreme Court has held, when "termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits” (Goldberg v Kelly, 397 US 254, 264, supra [emphasis in original]). In the Goldberg case, welfare benefits were involved. The rule has, however, been narrowly limited, and it has been held inapplicable even to disability benefits (Mathews v Eldridge, 424 US 319, 349).

Particularly instructive is the Mathews case in which it was said (p 349): "All that is necessary is that the procedures be tailored, in light of the decision to be made, to 'the capacities and circumstances of those who are to be heard,’ Goldberg v. Kelly, 397 U.S., at 268-269 (footnote omitted), to insure that they are given a meaningful opportunity to present their case. In assessing what process is due in this case, substantial weight must be given to the good-faith judgments of the individuals charged * * * with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals. * * * This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as to subsequent judicial review, before the denial of his claim becomes final.” The analysis is directly applicable to the case at bar. Clove Lakes is a business, not beset by subsistence problems of a welfare recipient. Moreover, the department afforded Clove Lakes the opportunity to challenge the audit through written submissions before the rate adjustment was effected. In addition, Clove Lakes participated in an earlier hearing, called an "Exit Conference”, held by the department before the audit was made final. Under these circumstances, failure to hold a prerecoupment hearing did not produce a due process violation.

This is not to say, of course, that Clove Lakes is not entitled to a prompt evidentiary hearing on its challenge to the audit. If such a hearing were not held promptly, the remedy would be a CPLR article 78 proceeding to compel the department to hold a hearing (CPLR 7803, subd [1]; cf. Matter of White Plains Nursing Home v Whalen, 60 AD2d 726, 727). In this case, however, no constitutional infirmity is perceived.

Accordingly, the order of the Appellate Division should be modified, with costs to respondents, to declare valid the provisional recoupment of excess reimbursements without a prior hearing, and otherwise affirmed.

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

Order modified, with costs to respondent, in accordance with the opinion herein and, as so modified, affirmed.


text:
    In the Matter of Louis R. Barone, Appellant, v City of Dunkirk et al., Respondents.
    Argued September 18, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Anthony J. De Marie for appellant.

      Daniel R. Polowy for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (57 AD2d 1040; see, also, Matter of Antonucci v Port Chester-Rye Union Free School Dist, 42 NY2d 878; but cf. Matter of Harris v Mechanicville Cent School Dist., 45 NY2d 279, 284-285).

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


text:
    Thalia Corcillo, Respondent, v Martut, Inc., et al., Defendants, and Erhal Holding Corp., Appellant.
    Argued September 20, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Gerald H. Markowitz and Ronald A. Markowitz for appellant.

      Solomon Abrahams for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (58 AD2d 617).

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


text:
    The People of the State of New York, Respondent, v Jeffrey H. Rumble, Appellant.
    Argued September 21,1978;
    decided October 24,1978

      APPEARANCES OF COUNSEL

      Richard V. Maiming for appellant.

      William H. Power, Jr., District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed. Defendant’s statement to his brother that "I’m not responsible for what I did”, if interpreted by the fact finder as a relevant admission of guilt, distinguishes this case from those based exclusively on circumstantial evidence (e.g., People v Benzinger, 36 NY2d 29, 32). Hence, the rigorous standards which obtain in circumstantial cases are not applicable.

The memorandum at the Appellate Division contains several unfortunate references to the lack of explanation for the cause of decedent’s catching fire. In context, however, it is evident that that court was not suggesting that defendant had an obligation to explain, through his own testimony or otherwise, the events leading up to the fire. Instead, the court was indicating that, in the absence of countervailing evidence, defendant’s admission, combined with the circumstantial evidence, was sufficient to establish guilt beyond a reasonable doubt, as indeed it was. This is true despite discomfort arising from absence of evidence of motive and the strange circumstance that the grandfather and defendant, in struggling over the hose valve, according to the grandfather, exchanged no words.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Vincent Caruso, Appellant.
    Argued September 21, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      J. Jeffrey Weisenfeld and Steven M. Jaeger for appellant.

      Eugene Gold, District Attorney (Laura A. Brevetti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order of the Appellate Division affirmed. Despite the inexcusable character of the prosecutor’s summation in stressing the role of defense counsel, without objective justification, the error does not call for reversal because it was without practical effect. The improprieties are sufficiently detailed in the dissenting opinion at the Appellate Division. A jury would hardly be moved by the rhetorical efforts of the young and inexperienced prosecutor. Her improper efforts were not such as to make the conduct of defense counsel, instead of that of defendant, the subject of the jury’s inquiry.

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

Order affirmed in a memorandum.


text:
    Charles O. Desch, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 58666.)
    Argued September 20, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Leslie F. Couch and Mary Anne Tommaney for appellant.

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

Order affirmed, without costs, on the memorandum at the Appellate Division (60 AD2d 678). In affirming the court does not consider the scope of governmental liability for ministerial acts of government officers and employees.

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


text:
    In the Matter of Lyndon Gibson, Appellant, v Board of Education of the Norwood-Norfolk Central School, Respondent.
    Argued September 18, 1978;
    decided October 24, 1978
    APPEARANCES OF COUNSEL

      William F. Maginn, Jr., for appellant.

      William F. Roberts, Jr., and Lee H. Turner for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, on the memorandum at the Appellate Division (59 AD2d 963; cf. Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279).

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


text:
    Richard L. Patterson, Appellant, v State of New York, Respondent.
    Submitted September 21, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      James I. Myerson and Thomas Hoffman for appellant.

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

Order affirmed, with costs, on the opinion by Mr. Justice G. Robert Wither at the Appellate Division (54 AD2d 147).

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


text:
    Donald Rubin et al., Appellants, v Thomas A. Harnett, as Superintendent of Insurance of the State of New York, et al., Respondents, and Health Insurance Plan of Greater New York, Inc., Intervenor-Respondent.
    Argued September 20, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Richard M. Asche and Martin I. Kaminsky for appellants.

      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel I. Hirshowitz of counsel), for respondents.

      Charles G. Moerdler, Vivienne W. Nearing, Burton N Lipshie, Karen Wagner and William Kutner for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the reasoning of the Appellate Division in its memorandum. In addition, we would note that the amendment to section 255 of the Insurance Law (L 1970, ch 572, now Insurance Law, § 255, subd 2-a, par [d]), following our decision in Matter of Procaccino v Stewart (25 NY2d 301, 305) removes any doubt that the requirements of section 2807 of the Public Health Law and section 255 of the Insurance Law are not necessarily dependent.

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

Order affirmed.


text:
    Helena A. Wood, Respondent, v Walter A. Wood, Appellant.
    Argued September 21, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Myrna Felder and Raoul Lionel Felder for appellant.

      James A. Janowitz and Gayle A. Yeomans for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division (60 AD2d 567).

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


author:
      Per Curiam.
     Fuchsberg, J.

text:
    Robert Baden et al., Respondents, v Scott Staples et al., Appellants.
    Argued September 21, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Thomas R. Newman, Mark L. Rosen and Susan A. Shafer for appellants.

      Herman Schmertz and Jerome I. Katz for respondents.
   OPINION OF THE COURT

Per Curiam.

The issue is whether Seider v Roth (17 NY2d 111) should be overruled. The issue is not new for the court; it has been raised with frequency in the 12 years since the Seider case was first decided (see Donawitz v Danek, 42 NY2d 138; Neuman v Dunham, 39 NY2d 999; Simpson v Loehmann, 21 NY2d 305, mot for rearg den 21 NY2d 990). Considerations of stare decisis and institutional stability, absent compelling grounds to the contrary, require that this challenge, like the others, be rejected.

In this negligence action, plaintiffs seek recovery for personal injuries arising out of a collision between the automobile in which they were riding and one owned by defendant Dean Staples and driven by defendant Scott Staples. Defendants are residents of New Hampshire, where the accident took place. Plaintiffs, although the driver plaintiff Robert Baden had exhibited a Florida operator’s license at the time of the accident, are apparently residents of New York.

Personal jurisdiction over defendants is not available in New York. Plaintiffs instead seek to obtain jurisdiction by attaching the insurance obligation owed defendants by their liability insurance carrier, St. Paul Insurance Company, a corporation doing business in New York. This procedure was, of course, first sanctioned in Seider v Roth (17 NY2d 111, 112, supra). Plaintiffs’ motion for attachment was therefore granted by Special Term, and the Appellate Division affirmed. Defendants appeal.

Defendants argue principally that, in light of Shaffer v Heitner (433 US 186), the Seider attachment procedure is unconstitutional. They argue that since the Seider holding was premised on Harris v Balk (198 US 215), Seider must fall with Harris, which was overruled by the Shaffer case.

In Simpson v Loehmann (21 NY2d 305, 310, supra), in which the rationale for the Seider rule was more fully developed, this court cited the Harris case as support for the constitutionality of the procedure. But the court, through Chief Judge Fuld, recognized and indeed foresaw the emergence of more flexible jurisdictional principles for constitutional purposes (id., p 311). The opinion in the Shaffer case parallels this analysis; certainly the Supreme Court has not repudiated it (see Shaffer v Heitner, 433 US 186, esp pp 207-212, supra; see, also, Silberman, Commentaries on Shaffer v Heitner, End of an Era, 53 NYU L Rev 33, 96-97). The Seider rule therefore satisfies the jurisdictional standards set forth in the Shaffer case.

Indeed, two appellate courts have written thoughtful opinions holding that the Seider doctrine survives the constitutional principles expressed in the Shaffer case (O’Connor v Lee-Hy Paving Corp., 579 F2d 194, 197-202 [Friendly, J.]; Alford v McGaw, 61 AD2d 504, 506-509, app dsmd 45 NY2d 776). The gist of the analysis is that the primary risks and burdens of defending a Seidfer-type action rest on the insurer, who does business in New York, and over whom even personal jurisdiction may, of course, be obtained. The burdens on the nonresident insured, although existent, are not sufficient to prevent, constitutionally, the New York courts from adjudicating a dispute principally between a New York plaintiff and an insurance company doing business in New York.

Remaining is the basic policy question: should the much-criticized Seider case be overruled? The merits of the rule are still in dispute (compare, e.g., Donawitz v Danek, 42 NY2d 138, 147-151 [concurring opn], supra, with id., pp 151-153 [dissenting opn]). Whatever the deficiencies in its logical foundation, application of the rule does not appear to have worked extensive injustice during its 12-year history. As has been noted, should injustice there be, the Legislature is free to change the rule (see Donawitz v Danek, supra, 142, and 149-150 [concurring opn]; Simpson v Loehmann, 21 NY2d 305, 312, supra).

"Distinctions in the application and withholding of stare decisis require a nice delicacy and judicial self-restraint. At the root of the techniques must be a humbling assumption, often true, that no particular court as it is then constituted possesses a wisdom surpassing that of its predecessors. Without this assumption there is jurisprudential anarchy” (People v Hobson, 39 NY2d 479, 488).

The Seider rule well illustrates the principle. It provoked sharp disagreement at its inception; it is still the subject of controversy. The balance of those in support and in opposition to the rule may have shifted, as it may shift again. Yet, if such shifts are reflected in decisional law, stability is lost, and to no commensurate gain. The practical effect of the rule is so insignificant that, in this instance, there is validity in the aphorism, always to be charily applied, that it is more important that the law be settled than that it be settled "correctly”.

Stare decisis, of course, is necessary only because Judges might disagree with the analysis and conclusion of their predecessors. Were there always agreement with the judgments and reasonings of the past, stare decisis would be a superfluous judicial economy doctrine enshrouded in the mysteries of a Latin phrase. But stare decisis is more than that. It is a doctrine born of recognition that judicial chaos would result if every judgment of the past were overturned because it fails to persuade the Judges of the present. True, there may be instances where strict adherence to precedent would be folly. But mere disagreement with the conclusions of the past, absent compelling reasons or changes in circumstances, cannot serve as a sufficient basis for abandoning what are for the transient present considered to be errors of the past, lest courts of the future consider the abandonment to be the error, thus repeating the process and compounding the uncertainty.

Not enough has appeared to have happened in the last 12 years to make the Seider decision demonstrably more wrong, or more right, than it was when originally decided. Its merit is still debated, and will undoubtedly continue to be debated no matter how settled the rule ultimately becomes. But the debates have not produced, and are not likely to, the "cogent reasons” necessary to abandon a precedent that has evidently wrought no great injustice (see Matter of Eckart, 39 NY2d 493, 499; see, also, Simpson v Loehmann, 21 NY2d 305, 314-316 [concurring opn per Breitel, J.], supra).

The modern doctrine of stare decisis with the flexibility essential if it is to be a socially useful one has never been better stated than by Chief Judge Cardozo in his Nature of the Judicial Process (Cardozo, Nature of the Judicial Process, esp pp 149-152). His teachings of a half century ago bear constant reminder.

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

Fuchsberg, J.

(concurring). Stare decisis, even without more, requires affirmance, but that doctrine deserves greater support than comes merely from the concept that it is more important for the law to be settled than for it to be settled "correctly”. Furthermore, stare decisis is not well served by comments which in effect subvert the rule of law purportedly upheld.

Law should reflect the convictions of the present more than the past. It follows that one of the truest tests of a principle of law, whether founded on case or statute, is to be ascertained in how it has actually functioned. (See Cardozo, Growth of the Law, pp 112, 114.) We apparently all agree that the dire consequences prophesied by Seider critics have not eventuated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchs-berg concurs in a separate opinion in which Judge Cooke concurs.

Order affirmed, with costs. Question certified answered in the affirmative.


text:
    Keystone Associates, Appellant, v State of New York, Respondent.
    (Claim No. 49592.)
    Argued September 19, 1978;
    decided October 24, 1978

      APPEARANCES OF COUNSEL

      Carl Golden, Martin Blackman and Alan G. Weiler for appellant.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and the case remitted to the Court of Claims for a new trial on the issue of damages on the concurring in part and dissenting in part opinion by Mr. Justice Louis M. Greenblott at the Appellate Division (55 AD2d, at pp 89-91).

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


text:
    In the Matter of Janice Gunn et al., on Behalf of Themselves and Their Dependent Children, Appellants, v Philip Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted September 11, 1978;
    decided October 24, 1978
   Motions to dismiss the appeal herein denied.


text:
    In the Matter of the Arbitration between the State of New York, Respondent, and Civil Service Employees Association, Inc., Appellant.
    Decided October 24, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (see Matter of Matofsky [Lisa Wigs & Wiglets], 29 NY2d 548; Cohen and Karger, Powers of the New York Court of Appeals, § 11, pp 42-46).


text:
    Cecilia Outley et al., Appellants, v Patsy Pearson, as Agent for Sherwood Associates, et al., Defendants, and Sherwood Associates, Respondent.
    Submitted September 25, 1978;
    decided October 24, 1978
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from involves the exercise of discretion of a type not reviewable by the Court of Appeals (Williams v Mallinckrodt Chem. Works, 34 NY2d 567).


text:
    The People of the State of New York, Respondent, v Randolph Peter Tompkins, Appellant. (And Another Action.)
    Submitted September 5, 1978;
    decided October 24, 1978
   Motion to amend remittitur in the Dutchess County case granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: "Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Does the New York rule precluding a defendant in police custody from waiving his right to counsel, outside the physical presence of his attorney, once that attorney has entered the criminal proceedings, violate the defendant’s right to dispense with the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.” [See 45 NY2d 748.]


text:
    Maria Spremo, Respondent, v Alfred Spremo, Jr., Appellant.
    Decided October 24, 1978
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that the order appealed from did not finally determine the action within the meaning of the Constitution and involves a question of discretion of the type not reviewable by the Court of Appeals.


text:
    Whitmyer Bros., Inc., Respondent-Appellant, v State of New York, Appellant-Respondent.
    (Claim No. 57565.)
    Submitted October 2, 1978;
    decided October 24,1978
   Motion to dismiss cross appeal taken by claimant granted and the cross appeal dismissed, without costs, upon the ground that claimant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Michael P. Murphy, Appellant, v Remo J. Acito et al., Constituting the New York State Board of Elections, et al., Respondents. (And Two Additional Proceedings.)
    Submitted October 24, 1978;
    decided October 24, 1978
   Motions for leave to appeal denied. On the court’s own motion, appeal taken by petitioner dismissed, without costs, upon the ground that the appeal does not lie as of right from the Appellate Division order of unanimous affirmance.