text:
    The People of the State of New York, Appellant, v Rickey L. Bachert, Respondent.
    Argued April 24, 1987;
    decided June 4, 1987

      POINTS OF COUNSEL

      James T. Hayden, District Attorney, for appellant.

      William E. Hellerstein for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The parties concede the necessity to find a procedure and a forum in which to address claims of ineffective assistance of counsel allegedly occurring in the intermediate appellate court. We hold that, inasmuch as the Criminal Procedure Law failed to anticipate and to provide for this particular situation, the remedy lies in the intermediate appellate court itself by the invocation and determination there of the traditional writ of error coram nobis.

A synopsis of the procedural context of the case before us begins with the entry of a judgment on October 29, 1982 convicting Rickey Bachert, after jury trial, of the crimes of burglary in the second degree, criminal trespass in the second degree and petit larceny. The conviction was affirmed by the Appellate Division on June 7, 1984 (102 AD2d 904), and leave to appeal to this court was denied in October 1984 (63 NY2d 945).

Bachert subsequently sought to attack his judgment collaterally by bringing a motion to vacate, in the court of conviction, pursuant to CPL 440.10 (1) (h). The ground asserted was ineffective assistance of appellate counsel in violation of his Sixth and Fourteenth Amendment rights. Specifically, Bachert emphasized appellate counsel’s failure to raise any question as to prosecutorial misconduct or to challenge the verdicts as repugnant. The nisi prius court ¿enied Bachert’s motion, holding that it lacked jurisdiction under CPL 440.10 to review a claim of ineffective assistance of appellate counsel. The court reasoned that CPL 440.10 limits collateral attacks on convictions to errors committed at the trial level and since questions regarding appellate counsel can only arise subsequent to the entry of judgment, CPL 440.10 did not confer jurisdiction.

On appeal, the Appellate Division reversed on the law and remitted for further proceedings, in a memorandum decision (121 AD2d 802), stating that ”[s]ince a defendant is entitled to an appeal as of right [from the judgment of conviction] a broad reading of CPL 440.10 (1) (h) would arguably incorporate an ineffective appellate counsel claim” (id., at 804, citing People v Ramos, 108 AD2d 209, 212). The Appellate Division noted the line of precedents using coram nobis to protect defendants wrongfully deprived of the right to counsel (People v Lampkins, 21 NY2d 138; People v Adams, 12 NY2d 417); this court’s willingness to expand the applicability of the writ (People v Hairston, 10 NY2d 92); and the fact that legislative adoption of CPL article 440 was not intended to abolish the common-law writ (People ex rel. Douglas v Vincent, 50 NY2d 901, 905 [Meyer, J., dissenting]). It concluded that a motion pursuant to CPL 440.10 was the appropriate procedural vehicle to challenge the foundation judgment of conviction based on ineffective appellate counsel grounds. On the People’s appeal to this court, we disagree and conclude that CPL 440.10 is not available or appropriate for this purpose.

We reverse and remit to the Appellate Division because a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel until such time as the Legislature enacts a particular and comprehensive remedy. The absence of a codified form of relief and the long-standing recognition of coram nobis flexibility help lead us to the conclusion that challenges to an intermediate appellate court determination, based upon a claim of ineffective assistance of appellate counsel, whether appointed or retained, should be initiated by writ of error coram nobis before that very court.

The right to effective assistance of counsel on appeal is settled under both the Federal and State Constitutions (see, Evitts v Lucey, 469 US 387, 396 [nominal representation on appeal is like no representation and is constitutionally inadequate]; Anders v California, 386 US 738, 741 [an indigent person has the right to appellate representation equal to that of a nonindigent person]; Douglas v California, 372 US 353, 356-357 [the 14th Amendment requires States to provide indigent persons representation on their appeals as of right]; People v Casiano, 67 NY2d 906, 907 [failure to assign new counsel upon discovering nonfrivolous issues deprived appellant of right to effective assistance of counsel]; People v Gonzalez, 47 NY2d 606, 610 [an indigent appellant must receive substantially the same assistance as one who can afford retained counsel]).

The parties agree that a defendant is entitled to a procedure and forum in which to address claims of ineffective assistance of appellate counsel. They disagree as to what procedural mechanism is best suited or available.

The People, as appellant here, argue that CPL 440.10 (1) (h) is a collateral remedy to address the judgment of conviction itself on matters outside the trial record and that ineffective assistance of appellate counsel claims are by nature postjudgment. They argue that the complaint of ineffective assistance of appellate counsel should be made in the Appellate Division through a motion for reargument, reconsideration or writ of error coram nobis. They point, by parallel argument, to the Legislature’s provision in CPL 460.30 for extensions of time to appeal when, due to counsel’s error, an appeal was not timely filed (see, People v Montgomery, 24 NY2d 130). They further argue that an application for reargument or reconsideration under CPL 470.50 is not limited to prejudgment claims as is CPL 440.10, by its terms.

Bachert, on the other hand, as respondent here, argues that the Appellate Division was correct in concluding that CPL 440.10 should be construed broadly to permit motions to vacate a judgment of conviction on the basis of appellate counsel ineffectiveness. He adopts the Appellate Division’s reasoning that since he is entitled to an appeal as of right from a judgment of conviction (CPL 450.10 [1]), ineffective assistance of counsel on appeal could be folded into a motion under CPL 440.10. He argues that this is an appropriate extension of relief under CPL article 440, which was intended to embrace the deprivation of constitutional rights outside the record, even though the category of ineffective assistance of appellate counsel was not specified by the Legislature at the time of its enactment of CPL 440.10 and the Criminal Procedure Law itself.

A motion to vacate judgment under CPL 440.10 (1) (h) does not include the claim of ineffective assistance of appellate counsel and to force the fit would constitute legislation by judicial fiat. A motion under CPL 440.10 (1) (h) limits the collateral attack to a judgment and to whether the judgment itself was obtained in violation of the defendant’s constitutional rights (People ex rel. Douglas v Vincent, 50 NY2d 901, 905 [Meyer, J., dissenting], supra; People v Corso, 40 NY2d 578, 580; United States ex rel. Johnson v Vincent, 507 F2d 1309, 1312). Appellate courts do not render judgments of conviction; they only affect them. To force this relatively new claim of appellate court error into that tight legislative formulation and into the trial courts for review is ill fitting to the statute and ill suited to the nisi prius court.

Likewise, a motion for reargument (CPL 470.50) is not an acceptable solution since "[a] motion for reargument is not an appropriate vehicle for raising new questions * * * which were not previously advanced either in this court or in the courts below” (see, Simpson v Loehmann, 21 NY2d 990). Also, the lack of uniformity and the relative shortness of time among the State’s various appellate tribunals for making reargument motions, the longest time frame of which is 60 days from service of the order with notice of entry, would lead to disparate treatment of persons seeking review of ineffective assistance of appellate counsel claims. Moreover, reargument is not traditionally perceived as providing the fresh, clean examination which should be given to alleged deprivations of counsel.

As we have done in other times of need, we turn instead to coram nobis as the best available remedy under all the circumstances. In 1943 this court recognized and employed the writ of error coram nobis in Matter of Lyons v Goldstein (290 NY 19, 25) which resurrected the dormant writ in this State (for the history of the writ see, Fuld, Writ of Error Coram Nobis, 117 NYLJ 2212, col 1 [June 5, 1947]; and Cohen, Post-Conviction Relief in the New York Court of Appeals: New Wine and Broken Bottles, 35 Brooklyn L Rev 1). In its modern context a motion for a writ "presupposes a violation of the defendant’s constitutional rights not appearing on the record, no negligence which could be attributed to the defendant for failure to have brought the alleged error to the attention of the court at the time of the trial, and further, that the current proceeding is not a substitute for a new trial, appeal or other statutory remedy” (Frank, Coram Nobis, fl 3.01, at 23; 18 Am Jur 2d, Coram Nobis, § 12, at 632). "Historically the writ issued to correct errors at trial” (Cohen, Post-Conviction Relief in the New York Court of Appeals: New Wine and Broken Bottles, 35 Brooklyn L Rev 1, 14; see also, Matter of Bojinoff v People, 299 NY 145 [minor not asked at arraignment if he wanted counsel and none was appointed]; People ex rel. Sedlak v Foster, 299 NY 291 [denied right to counsel at trial]; Matter of Hogan v Culkin, 18 NY2d 330 [coram nobis to be used to address deprivation of counsel]).

Our court enlarged the purview of the writ to include issues on appeal since we have "not hesitated to expand its scope when necessary to afford the defendant a remedy in those cases in which no other avenue of judicial relief appeared available” (People v Hairston, 10 NY2d 92, 93-94, supra). We recognized that a motion for a writ of error coram nobis lies where it was asserted that a court-appointed lawyer failed to prosecute an appeal (People v De Renzzio, 14 NY2d 732; People v Adams, 12 NY2d 417, supra); that correction authorities interfered with efforts at perfecting an appeal (People v Hairston, 10 NY2d 92, supra); that the defendant’s indigency prevented the perfection of the appeal (People v Ludwig, 16 NY2d 1062; People v Stanley, 12 NY2d 250); that the appellant’s insanity prevented perfection (People v Hill, 8 NY2d 935); and that counsel failed to prosecute the appeal despite the appellant’s wishes that he do so (People v Lampkins, 21 NY2d 138, supra). A foreshadowing of the result we reach today and a recognition of the continued exceptional vitality of the writ of coram nobis, postcodification of CPL article 440, may be found in People ex rel. Douglas v Vincent (50 NY2d 901, supra).

In reaching our holding, we are cognizant that claims of ineffective assistance of appellate counsel were reviewable, under the common law, through two distinct procedural channels. As represented by our decision today in People v Vasquez (70 NY2d 1), if such a claim was timely raised on direct appeal with an adequate record, it was properly reviewable (see, People v Casiano, 67 NY2d 906, supra; People v Gonzalez, 47 NY2d 606, supra). If this potential constitutional deficiency was not apprehended on direct appeal or if the record was not adequate then, under the common law, coram nobis was not simply an appropriate avenue for addressing claims of unconstitutional deprivation of the assistance of counsel, it became the exclusive collateral remedy (see, People ex rel. Douglas v Vincent, 50 NY2d 901, 904-905 [Meyer, J., dissenting], supra [habeas corpus relief inappropriate on claim of ineffective assistance of appellate counsel]; Matter of Hogan v Culkin, 18 NY2d 330, 332, supra [claim that appellant was not represented by counsel at sentence is not redressable by habeas corpus]; People ex rel. Sedlak v Foster, 299 NY 291, 294, supra [coram nobis will lie as remedy for deprivation of right to counsel]).

The codification of criminal procedures in this State in 1971 subsumed most of the common-law postconviction collateral remedies under CPL 440.10, but the Legislature did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior or unanticipated functions within CPL 440.10 (see, People v Corso, 40 NY2d 578, supra; CPL 460.30; Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 440.10, at 319). The remedy we make available today to address claims of ineffective assistance of appellate counsel is another recognition of the exceptional availability of coram nobis to fill yet another interstice of the law and human experience.

We also conclude that the natural venue for coram nobis review of ineffective assistance of appellate counsel claims is in the appellate tribunal where the allegedly deficient representation occurred. Coram nobis proceedings have traditionally been "addressed [in] the court which rendered the judgment or order from which relief is sought. Where, as here, it is the Appellate Division’s order that is questioned, the application should be to that court” (People ex rel. Douglas v Vincent, 50 NY2d 901, 905 [Meyer, J., dissenting], supra; People v Wurzler, 300 NY 344; 18 Am Jur 2d, Coram Nobis, § 28). The Appellate Division even has the flexibility, should the need arise, to refer factual disputes for hearings to the nisi prius court or perhaps to judicial hearing officers. That court can also adopt rules as are appropriate and necessary to provide for orderly review of coram nobis motions stemming from claims of ineffective assistance of appellate counsel. Indeed, prompt attention to the adoption of uniform rules would be prudent to avoid the results experienced after Matter of Lyons v Goldstein (290 NY 19, supra), where "applications for coram nobis came fast and furiously” (Fuld, Writ of Error Coram Nobis [Part 3], 117 NYLJ 2248, col 1 [June 7, 1947]). Rules could, for example, have discrete criteria for summary consideration and disposition, for minimum standards of sufficiency of motion papers for hearings, or referrals and for other facets which the respective Appellate Division may deem appropriate and necessary (cf., People v Gruden, 42 NY2d 214; CPL 440.30).

Coram nobis relief is the best available, albeit imperfect, solution given the more significant limitations inherent in the alternatives. Thus, even as we render our decision, "we are also obliged to take this opportunity to express our discomfiture” (see, People v Belge, 41 NY2d 60, 62) with the absence of a comprehensive statutory mechanism to address collateral claims of ineffective assistance of appellate counsel. The dimensions of the issue and the policy choices involved require that the more permanent solution should come from the Legislature, for example, even on so important an issue as appealability of this new coram nobis determination (under CPL art 450 and 450.70, such orders would not be appealable by permission or as of right). We invite the Legislature’s prompt attention to this problem.

Until such time as a proper statutory remedy is enacted, an appellant is entitled to bring a motion for a writ of error coram nobis, on the ground of ineffective assistance of appellate counsel, in the appellate tribunal which considered the primary appeal in which counsel was allegedly deficient.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel J. Giovannetti, Appellant, v Dormitory Authority of the State of New York, Respondent.
    Argued November 11, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Robert T. DeCataldo for appellant.

      Thomas A. Hickey and Joseph J. Ceccarelli for respondent.

      Robert Abrams, Attorney-General (Judith T. Kramer and Charles R. Fraser of counsel), for State of New York, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in so much of the opinion of the Appellate Division as held that the complaint failed to state a cause of action (115 AD2d 851).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


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    Vilma Burgess et al., Respondents, v Otis Elevator Company, Defendant and Third-Party Plaintiff-Appellant. Morgan Guaranty Trust Company of New York, Third-Party Defendant-Respondent.
    Argued November 10, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Steven J. Ahmuty, Jr., for appellant.

      Marvin V. Ausubel for Vilma Burgess and another, respondents.

      James P. McCall for Morgan Guaranty Trust Company of New York, respondent.
   OPINION OF THE COURT

Judgment appealed from and prior nonfinal order of the Appellate Division brought up for review affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (114 AD2d 784). Insofar as defendant Otis Elevator now urges that the charge on res ipsa was improperly given in view of plaintiffs contributory negligence, that issue was not preserved at the trial court.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Judge Meyer.


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    Tip Top Farms, Inc., Appellant-Respondent, v Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 1.) Park Lane Dairies, Inc., et al., Appellants-Respondents, v Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 2.) Jerome Dairy Co., Inc., Appellant-Respondent, v Dairylea Cooperative, Inc., Respondent-Appellant. (Action No. 3.)
    Argued November 11, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Lawrence K. Katz for Tip Top Farms, Inc. and another, appellants-respondents.

      David A. Field and Kevin J. Nolan for Park Lane Dairies, Inc. and another, appellants-respondents.

      Ronald C. Berger and John M. Freyer for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Justice Isaac Rubin at the Appellate Division (114 AD2d 12). Question certified answered in the affirmative. Cross appeal by defendant as to actions Nos. 2 and 3 dismissed, without costs, upon the ground that defendant is not aggrieved by the order of the Appellate Division insofar as it affirmed the orders in those actions (CPLR 5511).

Concur: Judges Simons, Kaye, Alexander and Titone. Chief Judge Wachtler and Judges Meyer and Hancock, Jr., dissent in part and vote to modify by denying branches of defendant’s motions for summary judgment in accordance with and for the reasons stated in the concurring in part and dissenting in part opinion of Justice Leon D. Lazer at the Appellate Division (114 AD2d 12, 27-37).


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    The People of the State of New York, Appellant, v Alberto Guerrero, Respondent.
    Argued November 13, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Andrew J. Frisch, Barbara D. Underwood and Lisa Margaret Smith of counsel), for appellant.

      Elaine D. McKnight for respondent.
   OPINION OF THE COURT

Order reversed, verdict reinstated and case remitted to Supreme Court, Kings County, for sentencing for reasons stated in the dissenting memorandum by then Justice Vito J. Titone at the Appellate Division (111 AD2d 350, 355-356; see also, People v Colon, 65 NY2d 888).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr. Taking no part: Judge Titone.


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    In the Matter of East Ramapo Central School District, Appellant, v East Ramapo Teachers Association, Respondent.
    Argued November 13, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Carl L. Wanderman for appellant.

      Robert S. Hite and Richard R. Rowley for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (116 AD2d 645).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of National Fuel Gas Distribution Corporation et al., Appellants, v Roderick G. W. Chu et al., Constituting the New York State Tax Commission, et al., Respondents. In the Matter of Envirogas, Inc., Appellant, v Roderick G. W. Chu et al., Constituting the New York State Tax Commission, et al., Respondents.
    Argued November 19, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Paul Taylor for National Fuel Gas Distribution Corporation and another, appellants.

      Daniel M. Darragh for Envirogas, Inc., appellant.

      Robert Abrams, Attorney-General (Nancy A. Spiegel of counsel), for respondents.
   OPINION OF THE COURT

In Matter of National Fuel Gas Distrib. Corp. v Chu: Judgment affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (114 AD2d 38).

In Matter of Envirogas, Inc. v Chu: Order insofar as appealed from affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (114 AD2d 38).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Standard Manufacturing Company, Inc., Appellant, v Tax Commission of the State of New York et al., Respondents.
    Argued November 12, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Michael T. McGarry and Anthony J. Amodeo, Jr., for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the opinion by Justice Robert G. Main at the Appellate Division (114 AD2d 138; see also, Matter of Wurlitzer Co. v State Tax Commn., 35 NY2d 100; Matter of Campbell Sales Co. v New York State Tax Commn., 68 NY2d 617).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


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    The People of the State of New York, Respondent, v Jeffrey Alling, Appellant.
    Argued November 17, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Fernande Rossetti for appellant.

      Sol Greenberg, District Attorney (Paul A. Clyne of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and a new trial ordered for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division (118 AD2d 960, 963-965).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    In the Matter of Frank Klein, Doing Business as Fairview Nursing Home, Respondent, v David Axelrod, as Commissioner of the New York State Department of Health, et al., Appellants.
    Argued November 19,1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein, O. Peter Sherwood and Peter H. Schiff of counsel), for appellants.

      Marvin L. Temer, Lawrence H. Cooke, Scott B. Lunin and David J. Larkin, Jr., for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


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    The People of the State of New York, Respondent, v Victor Balls, Appellant.
    Submitted November 11, 1986;
    decided December 16, 1986
    APPEARANCES OF COUNSEL

      Douglas P. Rutnik, Public Defender (Shawn D. Flaherty of counsel), 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.

The defendant has been convicted of criminally negligent homicide for causing the death of his seven-week-old daughter. On this appeal he contends that the prosecutor made prejudicial remarks during his summation. Specifically, the defendant urges the prosecutor improperly commented on the defendant’s silence prior to his arrest, improperly bolstered the credibility of his expert by introducing evidence that the defendant’s attorney had also retained the expert in other cases, vouched for the credibility of another prosecution witness and misrepresented the testimony of another expert by claiming that he determined the child’s death was a homicide. At the trial, however, the defendant made only one general objection during the summation and after the summation stated: "mr. gray: At this time I am moving respectfully for a mistrial on the conduct of the prosecutor throughout the summation, on constantly referring to speculative facts not in evidence from this witness chair, the raising of his voice and the screaming, as he has just done. The entire summation was so prejudicial and so speculative, not based on fact, that a mistrial should be granted.” Although the Appellate Division concluded that this mistrial motion preserved the issues he raises on the appeal, the unelaborated general objection to "speculative facts” did not alert the court to any of the comments now in issue and therefore was not sufficient to preserve the alleged prejudicial statements for appellate review (cf. People v Nuccie, 57 NY2d 818).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Scott W. Westergard, Appellant.
    Argued November 14, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      David Steinberg for appellant.

      William V. Grady, District Attorney (Bridget Rahilly Steller and Joan H. McCarthy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, charged with burglaries of several Poughkeepsie businesses in the early morning of January 24, 1983, at trial contended that his chronic alcoholism and drug abuse constituted a disease or serious mental disorder short of insanity that relieved him of liability for those crimes. This defense was supported by his own testimony, as well as that of his brother and a psychologist. Defendant testified that in January 1983 he was an active alcoholic. On the evening in question, he had gone from bar to bar drinking and eating dried mushrooms, then he entered a store and took money from the cash register, kicked a hole in a wall and stole change from the cash register in an adjoining store, and tore the coin box from a cigarette machine. His brother testified that defendant had been drinking the evening of the burglaries, that defendant (then 21) had been drinking heavily since he was 12 or 13 years old, that when he drank he became violent and uncontrollable, and that he also used drugs, often in combination with alcohol. A psychologist testified that alcoholism is a recognized disease. Having twice interviewed defendant in late 1983, he gave his opinion that defendant is an alcoholic, that he behaved typically for an alcoholic the night in question, that he was intoxicated, and that he was incapable of "acting purposefully with regard to a conscious objective” but acted out of rage. Three prosecution witnesses who had seen defendant in the critical hours of January 24, 1983 gave their opinion that defendant was not intoxicated.

Defendant’s requested charges of diminished capacity and diminished capacity to form a specific mental state were both denied. His request for an intoxication charge was granted. The jury was instructed that, while intoxication is not a defense to a criminal charge, intent to commit a burglary — a conscious objective to engage in such conduct — must be established and that evidence of defendant’s alleged intoxication could be considered in determining whether or not his mind was so obscured by the consumption of alcohol or drugs that he was incapable of forming the requisite intent. The jury returned a verdict of guilty of two counts of burglary in the third degree and one count of criminal trespass in the third degree, and the Appellate Division affirmed, one Justice dissenting. On appeal to this court, defendant challenges the refusal of his request to charge diminished capacity as bearing on the issue of intent, and also the trial court’s limitation of his parents’ testimony.

The trial court did not err in its refusal to charge diminished capacity as bearing on the issue of intent. While proof of a mental defect other than insanity may "in a particular case negate a specific intent necessary to establish guilt” (People v Segal, 54 NY2d 58, 66), the Legislature has made specific provision regarding proof of intoxication. Evidence of intoxication "may be offered by the defendant whenever it is relevant to negate an element of the crime charged.” (Penal Law § 15.25.) Such evidence was received here, including expert testimony that on January 24, 1983 defendant, acting as a functioning alcoholic, became intoxicated and was rendered "incapable of acting purposefully with regard to a conscious objective.” On this record, the court adequately instructed the jury regarding the possible effect of defendant’s condition on January 24, 1983 on his state of mind. No additional instruction was required.

Nor did the court abuse its discretion by limiting the testimony of defendant’s parents to events of the night of the burglaries and excluding their testimony concerning past events.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


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    In the Matter of 425 Park Avenue Company (A Limited Partnership), Respondent-Appellant, v Finance Administrator of the City of New York et al., Appellants-Respondents.
    Argued November 10, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Gerald A. Rosenberg, Jay A. Segal and Dana L. Gross for respondent-appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Reed G. Schneider, Edith I. Spivak and Joseph I. Lauer of counsel), for appellants-respondents.

      Eugene J. Morris for Real Estate Board of New York, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellants-respondents, by reversing so much of the order which granted petitioner’s motion for discovery of data with the S/I notations, and as so modified, affirmed, and the certified question answered in the negative.

In these proceedings brought pursuant to article 7 of the Real Property Tax Law seeking to review the correctness of assessments on petitioner’s property, respondents Finance Administrator and the Tax Commission of the City of New York appeal and petitioner taxpayer cross-appeals, by permission of the Appellate Division, from an order of the Appellate Division affirming a modified discovery order of Supreme Court. The Appellate Division has certified to us the question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

The order of the Appellate Division granted petitioner’s motion for production, inspection and copying of various data regarding sales of real property in the City of New York including verifications of sales together with notations of the assessment staff as to the significance or insignificance of reported transfers (S/I notations) but denied the request for computation sheets, guidelines or reports showing the fractional assessment rates used by the city assessors and denied the request to examine before trial employees of the city without prejudice to seek leave to conduct such examinations after the production of documents.

The grant or denial of discovery being discretionary, we interpret the question certified as asking whether the Appellate Division had the power to grant in part and deny in part the discretionary relief. We conclude that the Appellate Division had that power (Herrick v Second Cuthouse, 64 NY2d 692, 693; Brady v Ottaway Newspapers, 63 NY2d 1031, 1033). Having so determined, the only issue reviewable by this court is whether the exercise of that power was an abuse of discretion as a matter of law (Herrick v Second Cuthouse, supra; Brady v Ottaway Newspapers, supra).

On July 26, 1986, the Legislature amended Real Property Tax Law § 720 (3) (L 1986, ch 679) to limit the evidence admissible in a proceeding pursuant to article 7 on the issue of inequality so as to permit the class ratios promulgated by the State Board of Equalization and Assessment (SBEA) to be received in evidence to prove the ratio of assessment and to eliminate the use of actual sales in making such proof. The information provided by S/I notations is only relevant to proof of ratio by actual sales, a method no longer available to prove inequality of assessments. Under these circumstances, the requested data would have no relevancy to any issues that may be raised in this proceeding (CPLR 3101). Accordingly, it was an abuse of discretion as a matter of law to grant petitioner’s motion for discovery of the verification of sales data with the S/I notations.

Petitioner contends that the relevance of the computation sheets, guidelines or reports used by the city assessors is unaffected by the legislation as they are potentially admissible to create an estoppel against the city or as admissions or declarations against interest. However, the assessment ratio guidelines used by the city are not material and necessary to the prosecution or defense of this proceeding as the formulas or policies used by the city assessors are irrelevant to the issues raised in the judicial proceeding authorized by RPTL article 7. The assessment review proceeding is limited to a determination of the correctness of the assessment and not a review of what the assessor did or how he arrived at his conclusion (RPTL 720 [3]). Accordingly, the denial of petitioner’s request for discovery of the computation sheets, guidelines or reports was not an abuse of discretion as a matter of law. Likewise, we find no abuse of discretion as a matter of law in the denial of petitioner’s request for examinations before trial of city employees (CPLR 3101).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order modified, with costs to appellants-respondents, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.

      The legislation requires the SBEA to promulgate class ratios for 1982 and 1983 as soon as practicable but not later than January 1, 1987. If such ratios are not promulgated by such date, actual sales of real property within the assessing unit may be given as evidence on the issue of whether an assessment is unequal but only until the SBEA class ratios are established. Petitioner argues that it is not yet certain that the SBEA will establish the required ratios and hence that evidence of actual sales will be inadmissible. In rejecting this argument, we would note that it was conceded at oral argument that the relevant ratios have been published and issued as of October 27, 1986.


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    In the Matter of Larry Barnes, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, et al., Respondents.
    Argued November 12, 1986;
    decided December 16, 1986
    APPEARANCES OF COUNSEL

      Robert F. Bensing and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, and under the circumstances of this case, the petition granted, the determination of respondents annulled and respondents directed to expunge all references to the proceeding from petitioner’s file and to restore the good behavior allowance lost.

Petitioner, an inmate at Clinton Correctional Facility, challenges the determination of an inmate disciplinary hearing on the ground that prison officials improperly denied his right to call witnesses (see, 7 NYCRR 254.5). During the course of his testimony, petitioner indicated that a certain inmate, whose name was unknown to him, might have witnessed the incident. The hearing was adjourned and the requested witness was located. The correction officer who had ascertained the identity of the witness reported to the hearing officer that the witness refused to testify. The record neither reflects any reason for the witness’ refusal nor any indication of any effort by the respondents to ascertain any reason. The fact of the refusal was made known to petitioner upon the recommencement of the hearing which concluded with a finding of petitioner’s guilt.

Under these circumstances, we conclude that respondents have impermissibly denied to petitioner his right to call witnesses in violation of their own regulations (see, 7 NYCRR 254.5). The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the hearing officer for such refusal is not a sufficient basis upon which an inmate’s conditional right to call witnesses can be summarily denied. Here, where the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate’s right to call witnesses as provided in the regulations.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment reversed, without costs, petition granted, determination of respondents annulled and respondents directed to expunge all references to the proceeding from the petitioner’s file and restore the good behavior allowance lost, in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert Anderson, Appellant.
    Argued November 14, 1986;
    decided December 16, 1986
    APPEARANCES OF COUNSEL

      Kent V. Moston, Matthew Muraskin, Michael J. Obús and Michael R. Schneider for appellant.

      Denis Dillon, District Attorney (Douglas Noll and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s plea of guilty vacated, defendant’s motion to suppress granted to the extent of suppressing his oral statements and the matter remitted to the Nassau County Court for further proceedings on the indictment.

The only issue presented on this appeal is whether the People established the voluntariness of the defendant’s confession beyond a reasonable doubt as having been obtained consistent with defendant’s right to counsel. At the suppression hearing, the People presented the testimony of Steven Hoffman, the arresting officer and Dennis Gannon, the detective to whom defendant confessed. This testimony revealed that Hoffman brought defendant to the station house and relinquished custody of him to another detective. Later on, Hoffman was instructed to search his police car for stolen property. Although no stolen property was located, a gun was found in the car near where defendant had been seated. Hoffman testified that he turned the gun over to detectives in the precinct and did not participate in any interrogation of the defendant. Gannon testified that he arrived at the precinct a good while later and informed defendant of his constitutional rights, which he voluntarily waived, and defendant subsequently made certain oral statements which are the subject of this appeal. Gannon further testified that he never told defendant that the gun was found in the police car but that defendant had been told that by someone. Gannon also revealed that another detective, Carmine Susa, was present during the interrogation and took part in the questioning of the defendant.

Defendant testified that subsequent to his arrest, the arresting officer transported him to the precinct and turned him over to a "stocky, white, short” police officer who handcuffed him to a desk and interrogated him prior to any interrogation by Gannon. This officer told defendant that there were footprints by the scene of the crime and requested defendant’s sneakers to investigate whether they matched the footprints. Defendant testified further that after he turned his sneakers over, he asserted his right to counsel and asked to call Steven Singer, an attorney whom he knew. At this point, Hoffman returned and spoke to the unknown officer who confronted defendant a short time later with a gun, which the officer told defendant was found in the police car that had transported defendant. It was only after this interrogation by the "stocky, white short” officer, according to defendant, that Gannon returned and began questioning him, at which time defendant waived his rights and confessed.

Defendant’s version of the events transpiring after he arrived at the precinct and before the interrogation by Gannon was corroborated by the testimony of the People’s witnesses. Hoffman testified that upon arriving at the precinct he relinquished custody to another officer and that he gave the gun to detectives in the precinct. Gannon’s testimony indicated that he was not the first officer to confront defendant with the gun, that another detective, Carmine Susa, had access to defendant, and that Gannon’s interrogation of the defendant did not begin until sometime after defendant’s arrival at the precinct.

While it is true that the People have no obligation to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited (People v Witherspoon, 66 NY2d 973, 974), this record does not support the determination by the lower courts that the defendant’s right to counsel was not violated by questioning him after he had requested counsel.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Anthony Pettinato, Appellant.
    Argued November 18, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Alan M. Dershowitz, of the Massachusetts Bar, admitted pro hac vice, Nathan Z. Dershowitz and Ellen J. Schneider for appellant.

      Robert M. Morgenthau, District Attorney (Debora K. Grobman and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress granted and the indictment dismissed.

Because a warrantless intrusion by a government official is presumptively unreasonable, it is the People’s burden in the first instance to establish justification (People v Calhoun, 49 NY2d 398, 402; see, People v Knapp, 52 NY2d 689, 694). Only after it has done so is it defendant’s burden to prove illegality. Here there is nothing in the record, on either defendants case or on the People’s presentation, to support the Hearing Judge’s finding that Officer McGovern "was told that it [defendant’s canvas bag] had been opened and a bag of white pills taken out.” It was, therefore, error to deny suppression.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

Order reversed, etc.


text:
    Shirley Gregory et al., Appellants, v Town of Cambria et al., Respondents.
    Argued November 14, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Kenneth F. Astarita for appellants.

      Gary M. Billingsley for Town of Cambria and others, respondents.

      William M. Feigenbaum for Thomas Carter, doing business as Carter Trucking and Excavating Co., respondent.
   OPINION OF THE COURT

Memorandum.

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

Under Town Law § 267 (5) an area variance may be granted on a showing of practical difficulty (Matter of Fuhst v Foley, 45 NY2d 441; Matter of Cowan v Kern, 41 NY2d 591; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). We agree with the Appellate Division that the evidence before the Zoning Board of Appeals was sufficient to establish practical difficulty.

We also agree with the Appellate Division that to the extent that the town ordinance requires proof of hardship for an area variance it is in conflict with Town Law § 267 (5) and cannot be sustained under the Municipal Home Rule Law. As the Appellate Division noted, Municipal Home Rule Law § 10 (1) (ii) (d) (3) applies to local laws and not to ordinances. We have not considered the appellant’s alternative argument, that the ordinance is authorized by Town Law § 261, since that issue was not raised in the petition and thus has not been preserved for review.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander and Titone concur; Judges Simons and Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Spring Realty Co. et al., Appellants-Respondents, v New York City Loft Board et al., Respondents-Appellants, et al., Defendant.
    Argued November 13, 1986;
    decided December 16, 1986

      APPEARANCES OF COUNSEL

      Allen Green for appellants-respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Lee Fawkes and Stephen J. McGrath of counsel), for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified in accordance with this memorandum, with costs to respondents-appellants, and, as so modified, affirmed.

We agree with Special Term and the Appellate Division that article 7-C of the Multiple Dwelling Law (legalization of interim multiple dwellings) is not in conflict with the due process clauses of the Fourteenth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. It is apparent from the legislative findings that the enactment is supported by a legitimate concern that loft buildings are being converted to residential use "without compliance with applicable building codes”, that many of these buildings "do not conform to minimum standards for health, safety and fire protection”, and that an "acute shortage of housing” already exists (Multiple Dwelling Law § 280). The statute establishes a reasonable means to meet these legislative concerns and is, therefore, a valid exercise of the police power (Goldblatt v Town of Hempstead, 369 US 590, 594-595; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 489). We find no merit to the claim that the statute violates the equal protection clauses of the State or Federal Constitutions (US Const 14th Amend; NY Const, art I, § 11; see, e.g., McGowan v Maryland, 366 US 420, 425; 8200 Realty Corp. v Lindsay, 27 NY2d 124, 137), nor is there any showing that the statute, as applied to the particular properties of plaintiff, contravenes the State or Federal Constitutions as a taking without just compensation (see, e.g., Penn Cent. Transp. Co. v New York City, 438 US 104, 127-128; Modjeska Sign Studios v Berle, 43 NY2d 468, 473-475, 477; cf. French Investing Co. v City of New York, 39 NY2d 587, appeal dismissed 429 US 990). There is no merit to plaintiffs’ other attacks on the statute’s validity.

Special Term erred, however, in ordering hardship hearings, because mandamus is an extraordinary remedy which lies only "to compel the performance of a purely ministerial act where there is a clear right to the relief sought” (Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16; see, Legal Aid Socy. v Ward, 61 NY2d 744). Although the statute requires respondent Loft Board to resolve hardship applications, it does not require the Board to schedule hearings when it does so (see, Multiple Dwelling Law § 282). Thus, the remedy did not lie to compel the Loft Board to schedule hardship hearings, and that direction should be stricken.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

Order modified, etc.


text:
    In the Matter of the Church of Scientology of New York, Appellant, v Tax Commission of the City of New York, Respondent.
    Submitted October 27, 1986;
    decided December 16, 1986
   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 and it is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Colonial Penn Insurance Company, Appellant, v Ronnie Brabham et al., Respondents.
    Submitted October 27, 1986;
    decided December 16, 1986
   To the extent that movant seeks leave to appeal from the Appellate Division order dated May 18, 1986, motion dismissed upon the ground that movant has failed to supply a copy of that order although requested to do so and thus failed to comply with section 500.11 (d) (1) (C) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1] [C]).

To the extent that movant seeks leave to appeal from the Appellate Division order dated September 24, 1986, motion dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Carmen Guzman, Respondent, v Haven Plaza Housing Development Fund Company, Inc., Defendant, and Village East Towers, Inc., Defendant and Third-Party Plaintiff-Appellant. Daitch-Shopwell, Third-Party Defendant-Respondent. (And a Second Third-Party Action.)
    Submitted July 14, 1986;
    decided December 16, 1986
   On the court’s own motion, the prior decision and order dated September 18, 1986 is hereby amended to read:

Motion by Village East Towers, Inc. for leave to appeal granted.

Cross motion for leave to appeal, insofar as made by Daitch-Shopwell, granted. Cross motion for leave to appeal, insofar as made by Shopwell, Inc., dismissed upon the ground that movant is not aggrieved by the order sought to be appealed from (CPLR 5511). [See, 68 NY2d 608.]


text:
    In the Matter of Martin L. Schmukler, as Attorney for Robert Mont, Appellant, v Edward J. McLaughlin, as Acting Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted October 27, 1986;
    decided December 16, 1986
   Motion for leave to appeal and for a sta}r denied.


text:
    Elena Skibinski, Appellant, v Angel D. Cardenas, Respondent.
    Submitted October 27, 1986;
    decided December 16, 1986
   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 (NY Const, art VI, § 3; CPLR 5602), and upon the further ground that this court does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action originating in a court other than those specified in CPLR 5602 (a) (1) (see also, NY Const, art VI, § 3 [b] [7]).


text:
    Carmella Valenti et al., Appellants, v Joseph Trunfio, Defendant, and Le Roy Hospital, Respondent.
    Submitted October 27, 1986;
    decided December 16, 1986
   Motion for leave to appeal dismissed as untimely, insofar as the movant seeks leave to appeal from the Appellate Division order which granted summary judgment. Insofar as movant seeks leave to appeal from the Appellate Division order denying reargument or renewal, motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Russell Thompson, Appellant.
    Argued November 20, 1986;
    decided December 18, 1986

      APPEARANCES OF COUNSEL

      David J. Williams and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Elisa F. Spatola and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that he was denied effective assistance of counsel because his trial attorney failed to interview and to call to the stand an exculpatory eyewitness who had told the police that she was "eighty percent sure” of her identification of the robbers, but had identified from a photo array two other men as the perpetrators. At a CPL 440.10 hearing, defendant’s attorney testified that he had decided to conduct his defense by cross-examining the People’s sole identification witness, the complainant, who had identified defendant in a lineup conducted nine months after the crime.

As defendant concedes on this appeal, the complainant’s identification testimony objectively could be viewed as weak because of this witness’ limited opportunity to observe the robbers. In these circumstances, the strategy chosen by defense counsel to expose the deficiencies of the evidence of identification through cross-examination of the prosecutor’s own witness, rather than to explore and present other evidence of misidentification, was reasonable (see, People v Baldi, 54 NY2d 137, 146-147).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant-Respondent, v Jose Tabarez, Also Known as Primo Fernandez, Respondent-Appellant.
    Argued November 10, 1986;
    decided December 18, 1986

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Lois A. Cullen and Anthony J. Servino of counsel), for appellant-respondent.

      David B. Weisfuse and Stephen J. Pittari for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People did not argue in opposition to defendant’s request for a charge on extreme emotional disturbance that such a defense is inapplicable to attempted murder and, therefore, have not preserved the issue for review (People v Villani, 59 NY2d 781, 783-784).

The sufficiency of the evidence to present a jury question concerning whether defendant was acting under the influence of extreme emotional disturbance (Penal Law § 125.27 [2] [a]) and whether there was a reasonable explanation or excuse for such disturbance requires assessment of “the subjective, internal situation in which defendant found himself and the external circumstances as he perceived them at the time” (People v Casassa, 49 NY2d 668, 679). Under the unusual circumstances of this case and viewing the evidence in the light most favorable to defendant, as we must (People v Moye, 66 NY2d 887, 889), we conclude that it was error to refuse to charge the defense.

Defendant cross-appeals, by leave, from the Appellate Division’s failure to remit for resentence. Under the circumstances of this case, it was not an abuse of discretion as a matter of law for it not to do so (cf. People v Cohen, 50 NY2d 908).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


text:
    Claire S. Black et al., Appellants, v Ralph Chittenden, Respondent.
    Decided December 18, 1986

      APPEARANCES OF COUNSEL

      Francis J. Roche for appellants.

      Robert D. Wilcox for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to reinstate the first cause of action and to dismiss the Statute of Limitations defense and, as so modified, affirmed.

The allegations contained in the first cause of action, as amplified by the supporting affidavits (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 182), state facts from which a jury may infer that "the defendant knowingly uttered a falsehood intending to deprive the plaintiff of a benefit and that the plaintiff was thereby deceived and damaged” and, therefore, states a cause of action in fraud (Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 406407). Contrary to the conclusion of the majority at the Appellate Division (121 AD2d 819, 821), the allegations in the fourth paragraph of the complaint that the statements "were false and were known by the defendant to be false when made by [defendant]” are sufficient to plead defendant’s knowledge of falsity (Sabo v Delman, 3 NY2d 155, 159). Furthermore, none of the agreements annexed to defendant’s motion papers contain any discliamer of reliance on oral representations such as was involved in Citibank v Plapinger (66 NY2d 90, rearg denied 67 NY2d 647).

The complaint also contains "sufficient detail to clearly inform [the] defendant with respect to the incidents complained of’ (Lanzi v Brooks, 43 NY2d 778, 780) and, therefore, complies with the additional requirement of CPLR 3016 (b) that in an action for fraud, "the circumstances constituting the wrong shall be stated in detail.” It is not necessary to satisfy this requirement that the measure of damages be pleaded, "so long as facts are alleged from which damages may properly be inferred” (A. S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 383; Kensington Pub. Corp. v Kable News Co., 100 AD2d 802). The allegations of deterioration to the bowling lanes and their need for extensive repairs satisfy this requirement.

The misrepresentation here alleged is that the lanes were in "good repair and operating condition.” Like the statement held actionable in Hickey v Morrell (102 NY 454 [that a warehouse was "fire-proof on the exterior”]), defendant’s representation may reasonably be construed as a matter of "description and affirmation” (102 NY, at p 459) actionable in fraud as an expression of fact rather than opinion. Further, defendant’s failure to inform plaintiff’s representative that he had in the past employed certain stopgap maintenance procedures which shorten the life of the lanes supports the inference that he intended the representation as one of fact aimed at "diverting] attention and [further] inquiry” from the condition of the lanes (Gray v Richmond Bicycle Co., 167 NY 348, 357). Here, as in Schumaker v Mather, 133 NY 590, 594-595), therefore, the "meaning and intention of the speaker” presents a fact question for the jury.

Whether, pursuant to the rule of Schumaker v Mather (supra), the condition of the lanes was a matter "peculiarly within [defendant’s] knowledge” (133 NY, at p 596, supra) and whether plaintiffs could have discovered the truth about them through the "exercise of ordinary intelligence” (ibid.) likewise present questions of fact mandating the denial of defendant’s summary judgment motion. As recognized by the dissenters below (121 AD2d, at p 821), not only was defendant the sole shareholder and manager of the bowling alley for the seven years prior to its sale, but also he attested in the parties’ noncompetition agreement to his expertise in the management of its affairs. In contrast, the individual plaintiff , had no prior involvement with the corporation and no prior expertise in the bowling business, and the condition of which she now complains was, according to plaintiffs’ expert, not detectable to the untrained eye at the time when the misrepresentation allegedly was made.

Furthermore, the fact that plaintiffs solicited and received assurances from defendant that the lanes were in "good repair and operating condition” can hardly be deemed so implausible as to permit the conclusion that plaintiffs’ allegations are necessarily feigned (see, Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57). In concluding otherwise, the Appellate Division erred in focusing on the fact, that plaintiffs did not commence the action until in default (see, ibid., at p 63) and resolved credibility questions properly left for the trier of fact (compare, Curry v Mackenzie, 239 NY 267, with General Inv. Co. v Interborough R. T. Co., 235 NY 133).

We have considered defendant’s remaining contentions and find them to be without merit.

The Appellate Division, therefore, erred in affirming Special Term’s order insofar as it granted summary judgment dismissing plaintiffs’ first cause of action.

Finally, for the reasons stated in the dissenting memorandum at the Appellate Division (121 AD2d, at p 821), we agree that while Special Term correctly denied plaintiffs’ cross motion to dismiss the defense of laches, that court erred in refusing to grant so much of the motion as seeks the dismissal of the Statute of Limitations defense.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to plaintiffs, in accordance with the memorandum herein and, as so modified, affirmed.

      On their appeal to this court, plaintiffs have abandoned their second and third causes of action.


text:
    Ltown Limited Partnership, Respondent, v Sire Plan, Inc., et al., Defendants, and Perry E. Berger, as Successor in Interest to Kassin & Glass, Appellant. Robert Eisenhoff, Intervenor-Respondent.
    Argued September 3, 1986;
    decided December 18, 1986

      APPEARANCES OF COUNSEL

      Norman Bard and Joel Paul Berger for appellant.

      Brian Michael Seltzer and Ronald J. Offenkrantz for respondent.

      John M. Downing for intervenor-respondent.
   OPINION OF THE COURT

Order modified by annulling the award of additional allowances for attorney’s fees and, as so modified, affirmed, with costs to plaintiff. Question certified answered in the negative. (See, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1.)

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr. Taking no part: Judges Meyer and Titone.


text:
    In the Matter of Rose Wagschal, Appellant, v Board of Examiners of the Board of Education of the City of New York, Respondent.
    Decided December 18, 1986

      APPEARANCES OF COUNSEL

      Donald Congress and James R. Sandner for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Stephen J. McGrath of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As stated in the Per Curiam opinion of the Appellate Division, petitioner has not established that respondent’s denial of her application for a permanent school psychologist license lacked a rational basis. Accordingly, the lower courts properly refused to substitute their judgment for those of public officials in charge of the educational system (see, Morley v Arricale, 66 NY2d 665, 666-667; Matter of Pell v Board of Educ., 34 NY2d 222).

We find no merit in petitioner’s contention that she was arbitrarily deprived of an opportunity to qualify for a license under temporarily amended Chancellor’s regulation C-286 because of respondent’s purported delay in informing her of the denial of her license.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Amanda Broun, Respondent, v Equitable Life Assurance Society of the United States, Appellant.
    Decided December 18, 1986

      APPEARANCES OF COUNSEL

      Werner Weinstock and Norman L. Tolle for appellant.

      Howard R. Slonim for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

On this record and in light of the strong presumption against suicide, it cannot be said that a fair question of fact as to accident has not been presented (Wellish v John Hancock Mut. Life Ins. Co., 293 NY 178, 185). Where, as here, there is a reasonable hypothesis of accidental death, however unlikely, it is the jury’s business to resolve the doubt (id., at p 185; see also, Begley v Prudential Ins. Co., 1 NY2d 530). The jury verdict cannot, therefore, be set aside for want of sufficient evidence (Cohen v Hallmark Cards, 45 NY2d 493).

There must, nevertheless, be a reversal, for the exclusion of Dr. Baden’s opinion that decedent’s death was a suicide was an abuse of discretion as a matter of law. Although the jury may have been able to evaluate some of the evidence presented, whether the number of pills required to reach the level of toxicity found in decedent’s body could have been taken inadvertently or whether the circumstances surrounding the body were consistent with general patterns of behavior exhibited by other suicide victims were not matters within their ken (see, People v Keindl, 68 NY2d 410; People v Cronin, 60 NY2d 430; People v Smith, 59 NY2d 156; People v Fisher, 53 NY2d 907; People v Henson, 33 NY2d 63; cf. People v Creasy, 236 NY 205) particularly in view of the expert testimony introduced by the plaintiff.

As the Trial Judge in his ruling agreed, it necessarily follows that redaction of the death certificate and autopsy report, both signed by Dr. Baden, to omit the "suicide” conclusion was error (see also, County Law § 674 [3]; CPLR 4520; Public Health Law § 4103 [3]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in memorandum.

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


text:
    In the Matter of Ronald Davidson, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent. In the Matter of Edwin Valles, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Argued November 18, 1986;
    decided December 18, 1986

      APPEARANCES OF COUNSEL

      Daniel J. Weinstein and Norman P. Effman for appellants.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

In each appeal, the order of the Appellate Division should be reversed, the institutional findings of guilt nullified, and the proceedings expunged from petitioners’ records.

In these article 78 proceedings challenging prison disciplinary board determinations that petitioner inmates had violated inmate rules, petitioners contend that the rules were not on file with the Secretary of State at the time they were charged, that the rules were therefore ineffective, and that the findings of guilt based on those rules must be annulled in accordance with People ex rel. Roides v Smith (67 NY2d 899). Respondent acknowledges that the rules were not on file, but claims that there was no need to file them since there was a "parent regulation” on file proscribing the conduct of which petitioners were found guilty (7 NYCRR 250.1). Respondent’s attempt to distinguish Roides, however, is unpersuasive for, as respondent acknowledges, the same regulation was equally applicable in the Roides cases. Moreover, petitioners here were not charged under the filed "parent regulation”; they were charged with having violated the unfiled inmate rules. At the time petitioners were charged, the inmate rules were not effective owing to the lack óf filing (People v Cull, 10 NY2d 123), and the proceedings must therefore be annulled in accordance with People ex rel. Roides v Smith (67 NY2d 899, supra) and Matter of Jones v Smith (64 NY2d 1003).

Whether or not new charges under filed regulations can hereafter be lodged against petitioners for the alleged misconduct is an issue we do not reach on this appeal.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

In each case: Order reversed, without costs, the institutional findings of guilt nullified, and the proceedings expunged from petitioner’s records, in a memorandum.


text:
    In the Matter of the Claim of Juan F. Rivera, Respondent. State Line Delivery Service, Inc., Respondent; Lillian Roberts, as Commissioner of Labor, Appellant. (Proceeding No. 1.) In the Matter of the Claim of James P. Ross et al., Respondents. Majestic Messenger Service, Inc., Appellant; Lillian Roberts, as Commissioner of Labor, Respondent. (Proceeding No. 2.) In the Matter of Joan M. Fox, Appellant. James Whalen, Doing Business as Whalen’s Service, Respondent; Lillian Roberts, as Commissioner of Labor, Appellant. (Proceeding No. 3.)
    Decided December 18, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard S. LoPrimo, Rochelle M. Baron and Iris A. Steel of counsel), for Lillian Roberts, as Commissioner of Labor, appellant in proceedings Nos. 1 and 3 and respondent in proceeding No. 2.

      Evan J. Spelfogel for Majestic Messenger Service, Inc., appellant.

      David J. Wukitsch for Joan M. Fox, appellant.

      John D. Chestara for Juan F. Rivera, respondent.

      Alvin Altman for State Line Delivery Service, Inc., respondent.

      Donald W. Boyajian for James P. Ross, respondent.

      Daniel P. Forsyth for James Whalen, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division in Rivera and Fox should be reversed, with costs, and the decisions of the Unemployment Insurance Appeals Board reinstated and the order of the Appellate Division in Ross should be affirmed, with costs.

In each of these cases whether the relationships of the operators-deliverers with the delivery companies is that of employees or independent contractors involves a question of fact as to whether there is evidence of either control over the results produced or over the means used to achieve the results (Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 521; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897; Matter of Sullivan Co. [Miller], 289 NY 110, 112). The agency’s determination of this question of fact, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record to support a contrary conclusion (Matter of Field Delivery Serv. [Roberts], supra; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736; Matter of Morton [Miller], 284 NY 167; Matter of Stork Rest. v Boland, 282 NY 256). The determination in each case by the Unemployment Insurance Appeal Board that the relationship was that of employer-employee is amply supported by proof in the record. There being substantial evidence to sustain the determinations, the judicial inquiry is complete (Matter of Field Delivery Serv. [Roberts], supra; Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692). Moreover, the agency determinations in these three cases are consistent with prior cases with substantially similar facts (Matter of Field Delivery Serv. [Roberts], supra, at p 520; see, Matter of Di Martino [Buffalo Courier Express Co. — Ross], 89 AD2d 829, affd 59 NY2d 638; Matter of Wells [Utica ObserverDispatch & Utica Daily Press — Roberts], 87 AD2d 960, affd 59 NY2d 638).

We have considered the other arguments raised by the parties and find them to be without merit.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

In Matter of Rivera and Fox: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and decision of the Unemployment Insurance Appeals Board reinstated in a memorandum.

In Matter of Ross: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    George Baltsavias, Appellant, v State of New York, Respondent.
    Submitted November 10, 1986;
    decided December 18, 1986
   Motion for leave to appeal insofar as made from the Appellate Division order of affirmance dismissed as untimely. Motion for leave to appeal insofar as made from the Appellate Division order denying reargument dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Myron Domsky, an Attorney and Counselor-at-Law, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted November 24, 1986;
    decided December 18, 1986.
   Motion for leave to appeal and for a stay denied.


text:
    Doris Slakman, as Administratrix of the Estate of Bernard L. Slakman, Deceased, Plaintiff, v Leonard Kolleeny et al., Defendants. Leonard Kolleeny et al., Third-Party Plaintiffs-Appellants; Booth Memorial Medical Center, Third-Party Defendant; Lawrence Stern et al., Third-Party Defendants-Respondents.
    Decided December 18, 1986
   Appeal dismissed, without costs, by the Court of Appeal sua sponte, upon the ground that the appeal is untimely (CPLR 5513 [a]).


text:
    The People of the State of New York, Respondent, v Marie Iannelli, Also Known as Marie Ianelli and Anna Jannelli, Appellant.
    Argued November 17, 1986;
    decided December 19, 1986

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Elizabeth Holtzman, District Attorney (Thomas E. Greiff, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Viewed in a light most favorable to the People, the evidence adduced at trial was sufficient to establish defendant’s commission of aggravated disorderly conduct (Penal Law § 240.21).

Defendant’s claim that the statute violates the due process and establishment clauses of the United States Constitution (US Const 14th and 1st Amends) has not been preserved for our review. Defendant did not move pursuant to CPL 170.30 (1) (a) and CPL 170.35 (1) (c) within the time prescribed by CPL 170.30 (2) and CPL 255.20 (1) for dismissal of the accusatory instrument (compare, People v Bakolas, 59 NY2d 51, 53), and indeed never made her position on this issue known to the trial court before, during or after the trial. As we noted in People v Thomas (50 NY2d 467, 473), "the rule requiring a defendant to preserve his points for appellate review applies generally to claims of error involving Federal constitutional rights”. The rule was applied in People v Dozier (52 NY2d 781, 783) to foreclose a constitutional challenge to the statute defining third degree rape (Penal Law § 130.25 [2]) based on alleged discrimination on account of sex and violation of due process because it eliminates the mens rea element (another constitutional challenge to the statute, which was properly raised, was considered and rejected) (see also, People v Drummond, 40 NY2d 990, cert denied sub nom. New York v Luis J., 431 US 908).

We have examined defendant’s remaining contention and find it to be without merit.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.


text:
    In the Matter of Albert Montaneli.
    Decided December 19, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Albert Montaneli is suspended, effective immediately, from his office of Justice of the Ancram Town Court, Columbia County, subject to further order of this court.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr. Taking no part: Judge Alexander.


text:
    In the Matter of Lee Vincent.
    Decided December 19, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Lee Vincent is suspended, effective immediately, from his office of Justice of the Burke Town Court, Franklin County, subject to further order of this court.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr. Taking no part: Judge Alexander.


text:
    In the Matter of Rodney B., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      John F. McGlynn and Lenore Gittis for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fred Kolikoff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new hearing granted.

Respondent has been adjudicated a juvenile delinquent and placed with the New York State Division for Youth for one year based upon the Family Court Judge’s conclusion after hearing that he had committed acts which, if committed by an adult, would constitute the crime of criminal tampering in the second degree (Penal Law § 145.15). At trial respondent raised the affirmative defense that he did not engage in the conduct of which he was accused (tampering with the safety gates between two subway cars) for a larcenous or otherwise unlawful or wrongful purpose. It was, however, his burden to establish that defense by a preponderance of the evidence (Penal Law § 25.00 [2]), and he testified only that he did not remove the chain, not that he did so but for a purpose that was not wrongful.

There must, nevertheless, be a new trial because the Family Court Judge denied defense counsel’s request for production as Rosario material of the Transit Authority officer’s memo book (see, Family Ct Act § 331.4 [1] [a]). The basis for denial was the officer’s testimony that there was nothing in his memo book that was not also contained in the field investigation worksheet (TP67) and probation intake referral report (PIRR) previously furnished to defense counsel.

Family Court Act § 331.4 (1) (a) is based upon the corresponding provision of the Criminal Procedure Law (CPL 240.45; see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 331.7, p 427), which was in turn adopted to formalize the procedure initially established by People v Rosario (9 NY2d 286, rearg denied 9 NY2d 908, 14 NY2d 876, 15 NY2d 765, cert denied 368 US 866; see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 240.45, pp 408-409). And as we recently stated in People v Perez (65 NY2d 154, 160), the essence of Rosario is that even "a judge’s impartial determination as to what portions [of a statement] may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused.”

It was, thus, error to deny the request solely on the basis of the officer’s testimony, without requiring that the memo book be produced. Here the book was not made available to defense counsel until after his Appellate Division brief had been filed. Examination of it sustains the validity of our observation in People v Consolazio (40 NY2d 446, 455) that the better practice is to direct turnover of material sought once it is determined that it is in fact Rosario material, for the memo book contains a notation, not included in either the TP67 or the PIRR. That statement, that defendant had seen the officer watching him and another person board the train from between cars, was consistent with respondent’s testimony which was attacked as incredible in the Corporation Counsel’s closing argument (cf. People v Rosario, 9 NY2d, at p 289, supra) and, in its reference to another person boarding the train in the same way as had respondent, could have been used by defense counsel, had he had it available, in confirmation of the affirmative defense. Thus, the memo book material was not simply duplicative. There must, therefore, be a reversal and a new hearing.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and a new hearing granted in a memorandum.


author: Meyer, J.

text:
    The People of the State of New York ex rel. Earvin Dawson, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Argued November 18, 1986;
    decided December 19, 1986

      APPEARANCES OF COUNSEL

      Leigh E. Anderson and Norman P. Effman for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, an inmate at Attica Correctional Facility, commenced a habeas corpus proceeding, contending that respondent had illegally ordered his confinement for a period of 24 months in the special housing unit following a Tier III disciplinary hearing in which petitioner had been found guilty of violating various institutional rules prohibiting murder, assault and violent conduct. In his petition he asserted that the determination was invalid because the regulations had not been filed as required by New York State Constitution and the Executive Law (NY Const, art IV, § 8; Executive Law § 102) (see, Matter of Jones v Smith, 64 NY2d 1003). We agree with the Appellate Division that a writ of habeas corpus is not the correct vehicle for reviewing the legality of a prisoner’s confinement following a superintendent’s proceeding. Accordingly, the Appellate Division properly reversed Special Term, converted the habeas corpus to an article 78 proceeding (see, People ex rel. Corcoran v Smith, 105 AD2d 1142, 1143, mod on other grounds 66 NY2d 130) and dismissed the proceeding as time-barred (CPLR 217; see, People ex rel. Jelich v Smith, 105 AD2d 1125, 1126, lv denied 64 NY2d 606).

People ex rel. Brown v Johnston (9 NY2d 482), relied on by petitioner, is not to the contrary. There, we held that the writ of habeas corpus was properly employed by petitioner, an Attica inmate, in seeking his release from an allegedly illegal confinement in Dannemora State Hospital, an institution for custody of prisoners who are declared insane. The confinement in People ex rel. Brown v Johnston (supra) was in an institution separate and different in nature from the correctional facility to which petitioner had been committed pursuant to the sentence of the court, and was not within the specific authorization conferred on the Department of Correctional Services by that sentence. Here, by contrast, petitioner does not seek his release from custody in the facility, but only from confinement in the special housing unit, a particular type of confinement within the facility which the Department of Correctional Services is expressly authorized to impose on lawfully sentenced prisoners committed to its custody (Correction Law § 137 [2], [5], [6]; 7 NYCRR 251-1.7; 254.7 [3], [4]; 304.1 [d]; 304.2 [c]; see, Hewitt v Helms, 459 US 460, 468; People ex rel. France v Coughlin, 99 AD2d 599). Such disciplinary confinement and the proceedings leading to it must comply with applicable statutes and regulations which, of course, must meet due process standards (see, Matter of Jones v Smith, supra, p 1005), and the proper procedure for review is under CPLR article 78.

Meyer, J.

(dissenting). Respectfully I dissent. I cannot accept the majority’s distinction between this case and People ex rel. Brown v Johnston (9 NY2d 482). Defendant was committed to a correctional institution for incarceration in the normal prison setting, except as his conduct, proscribed by valid regulations, permits his confinement in more restricted detention (Correction Law § 137 [6]; see, 7 NYCRR 254.7 [3]). To permit solitary confinement on the basis of invalid regulations is to confine defendant in a manner "different in nature and separate from the correctional facility to which” he was committed, just as it was in Brown. Habeas corpus, therefore, lies.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Hancock, Jr., concur; Judge Meyer dissents and votes to reverse in an opinion in which Judge Titone concurs.

Order affirmed, without costs, in a memorandum.

      Although the petition, in addition to seeking release from confinement, seeks expungement of the offense from petitioner’s record, the habeas corpus proceeding is technically moot since petitioner is no longer in confinement in the special housing unit. Nevertheless, we address the issue presented because it is a question of public importance and one which is likely to reoccur and to evade review (see, Matter of Jones v Berman, 37 NY2d 42, 57).

      By definition, inmates placed in a special housing unit (SHU) are not permitted to "commingle with the general inmate population” (7 NYCRR 300.2 [b]) and inmates, such as relator, whose SHU confinement was part of a segregation unit, are not permitted to "commingle with each other” (7 NYCRR 300.2 [c]). The State does not dispute, moreover, the statements in relator’s brief that he was confined to a solitary cell for 23 hours per day, that he was permitted to exercise daily for one hour in a single, empty cell (see, 7 NYCRR 301.5 [b]) and to shower once each week (see, 7 NYCRR 301.5 [a]) and that his visitation privileges were subject to restrictions (see, 7 NYCRR 301.6).


text:
    525 Park Avenue Associates, Appellant, v Salvador De Hoyas, Respondent.
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      C. Daniel Chill for appellant.

      Donald Eng for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of that court (121 AD2d 908). Moreover, we hold that the filing of a Rent Stabilization Code § 54 (D) application does not preserve a landlord’s right to refuse a renewal of a lease on nonprimary residence grounds, pursuant to section 54 (E) where no notice of such intent has been timely given (see, Golub v Frank, 65 NY2d 900; compare, Crow v 83rd St. Assoc., 68 NY2d 796 [Omnibus Housing Act (L 1983, ch 403) did not implicitly repeal the Golub notice requirement of Rent Stabilization Code § 60]).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Anna Raschel, Also Known as Anna M. Raschel, Appellant, v Benito Rish, Respondent, et al., Defendant.
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      Sharon P. Stiller for appellant.

      Michael R. Flaherty for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this action for personal injuries against a doctor and a hospital allegedly arising from negligent surgery, treatment and care, a single copy of the summons and complaint was served upon the hospital administrator on February 6, 1980. "Nail and mail” service (see, CPLR 308 [4]) was subsequently attempted on the doctor at his former residence. In his answer, the doctor asserted as an affirmative defense that the court lacked jurisdiction of the person. Four years later, after discovery, the hospital (not a party to this appeal) unsuccessfully sought summary judgment on plaintiff’s direct and derivative causes of action against it. The Appellate Division modified by dismissing both the derivative claim and part of the direct negligence claim, sustaining only the portion of the claim relating to the hospital’s alleged breach of duty to investigate the doctor’s competency before renewing his staff privileges (110 AD2d 1067). That order is not in issue on this appeal.

While the hospital’s motion for summary judgment made its way through Special Term and the Appellate Division, the doctor separately moved to dismiss the complaint against him for lack of personal jurisdiction. Plaintiff opposed the motion on the ground that valid service had been made on the doctor pursuant to CPLR 308 (2) by delivering the summons and complaint to the hospital administrator and mailing a copy to his home. (Plaintiff abandoned the contention that "nail and mail” service had been made on the doctor.) Additionally, on October 26, 1984, plaintiff served a duplicate summons and complaint on the doctor, which he contended was untimely. Special Term concluded that personal service of the original summons and complaint had not been effectuated on the doctor, but that the later service was timely because the doctor and the hospital were united in interest, thereby tolling the Statute of Limitations. The Appellate Division modified by dismissing the complaint against the doctor. Recognizing that defendants’ interests would be united only where one defendant is vicariously liable for the acts of the other, the Appellate Division noted that, based on its earlier decision in the hospital’s appeal, it was law of the case that the hospital could not be held vicariously liable for the doctor’s malpractice. We dismissed plaintiff’s appeal as of right on constitutional grounds, and granted her motion for leave to appeal.

On the issue of the original service of process on the doctor, the Appellate Division correctly affirmed dismissal of the complaint. While the CPLR is silent as to the number of copies of a summons and complaint that must be served on a person conceivably acting in more than one representative capacity, the guiding principle must be one of notice "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v Central Hanover Trust Co., 339 US 306, 314; see also, Bossuk v Steinberg, 58 NY2d 916, 918-919.) Where only one copy of the summons and complaint was delivered to the hospital administrator, though he was also conceivably qualified to accept service for defendant doctor pursuant to CPLR 308 (2), actual notice to the doctor depended upon several contingencies. The administrator had to know, for example, that service was being made on the doctor as well as the hospital, notify him, and furnish him with copies of the documents.

Significantly, after service on the hospital administrator efforts were made to serve the doctor at his home; apparently even the process server did not intend to serve both the doctor and the hospital when he left one summons and complaint at the hospital. Plaintiff’s claim that the doctor was not prejudiced because he actually received the first summons and complaint in the mail is without merit. When the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents (see, Macchia v Russo, 67 NY2d 592; McDonald v Ames Supply Co., 22 NY2d 111, 115).

On the legal issue of unity of interest, the Appellate Division also correctly concluded that the hospital and the doctor were not "united in interest” so as to toll the Statute of Limitations (CPLR 203 [b]), Service of the duplicate summons and complaint on the doctor was therefore untimely. Generally, in malpractice and negligence actions, defendants will be considered united in interest, rather than joint tort-feasors, when one is vicariously liable for the acts of the other (see, Connell v Hayden, 83 AD2d 30; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 203.06). For a hospital to be vicariously liable for the negligence of a physician, ordinarily an employment relationship, rather than mere affiliation, is required (see, Hill v St. Clare’s Hosp., 67 NY2d 72; Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 683-684). Here, however, there was no showing of the doctor’s employment by the hospital; nor was there any showing that plaintiff had sought care directly from the hospital rather than from the doctor himself (see, Hill v St. Clare’s Hosp., 67 NY2d, at pp 80-81, supra).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

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


text:
    Sofia Willner et al., Doing Business as Apartments Plus, et al., Appellants, v Joanna Cutler, Respondent. (Action No. 1.) Joanna Cutler, Respondent, v Leonard Kaye et al., Respondents. (Action No. 2.)
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      Robert M. Trien for appellants.

      Robert P. Stein for Joanna Cutler, respondent.

      David Breitbart and Maurice Sieradzki for Leonard Kaye, respondent.

      Adam B. Gilbert for Sasson Jeans, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, with costs, respondent Cutler’s cross motion for summary judgment denied for reasons stated in the dissenting memorandum of Justice Arnold L. Fein at the Appellate Division (120 AD2d 468, 470), and case remitted to the Appellate Division, First Department, for consideration of issues not passed upon on the appeal to that court.

Concur: Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Chief Judge Wachtler.


text:
    Carlton A. Lowe et al., Appellants, v David J. Bennett et al., Respondents.
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      Walter T. Reardon for appellants.

      David B. Hamm for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (122 AD2d 728).

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Jane Rubin, as Parent and Natural Guardian of Jordan Rubin, an Infant, et al., Appellants, v Burton Rubin, Respondent.
    Decided December 19, 1986

      APPEARANCES OF COUNSEL

      Benedict Ginsberg for appellants.

      Howard N Beldock for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in so much of the opinion by Justice J. Robert Lynch at the Appellate Division as pertains to the requested upward modification of child support (119 AD2d 152; see also, Merl v Merl, 67 NY2d 359, 362). We note that the argument based on the increase in defendant’s wealth is not before us. Neither the trial court nor the majority at the Appellate Division made a finding with respect to this factor. No issue with respect to attorneys’ fees is presented to this court.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.


text:
    Michael A. Kulikowski, Appellant, v Roslyn Savings Bank, Respondent.
    Submitted November 10, 1986;
    decided December 19, 1986
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with section 500.11 (d) (1) (C) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]) (see also, CPLR 5611).


text:
    Barbara Purpura, Respondent, v Nicholas Purpura, Appellant.
    Submitted December 8, 1986;
    decided December 19, 1986
   Motion for leave to appeal and for a stay dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Titone taking no part.


text:
    In the Matter of Lazaro Saumell, Respondent, v New York State Racing Association, Inc., Appellant, and New York State Racing and Wagering Board, Respondent.
    Submitted October 20, 1986;
    decided December 19, 1986
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: Order modified, with costs to appellant against respondent Lazaro Saumell, in accordance with the opinion herein, and, as so modified, affirmed. [See, 58 NY2d 231.]


text:
    In the Matter of Blackgold Realty Corp., Appellant, v Robert S. Milne, Respondent. (And Two Other Proceedings.)
    Decided January 8, 1987

      APPEARANCES OF COUNSEL

      Herbert Rubin and David B. Hamm for appellant.

      Jeffrey S. Ween for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, which affirmed the dismissal of the landlord’s petitions for summary eviction and recovery of unpaid rent, should be affirmed, with costs.

The landlord’s petitions must be dismissed because they were jurisdictionally defective (see, Multiple Dwelling Law § 325; Administrative Code of City of New York § D26-41.21 [b] [Housing Maintenance Code]; 22 NYCRR 2900.21 [f] [Rules of the Civil Court of the City of New York]). Inasmuch as the landlord failed to allege compliance with the Loft Law’s "owner obligations” (see, Multiple Dwelling Law § 284 [2]), it is not entitled to rely on the Loft Law’s statutory exemption from the jurisdictional predicate of multiple dwelling registration (see, Multiple Dwelling Law § 285 [1]). Consequently, we do not reach the landlord’s claim that its building is an "interim multiple dwelling” protected by the Loft Law, or its contention that the Loft Law may be applied to rent-controlled buildings.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Bellacosa taking no part.

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


text:
    Vereese Holley, an Infant, by His Father, Cornelius Holley, et al., Respondents, v Mandate Realty Corp., Appellant.
    Decided January 8, 1987

      APPEARANCES OF COUNSEL

      Nathan Cyperstein and Glen E. Kushel for appellant.

      Martin Seinfeld for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (121 AD2d 202). Question certified answered in the affirmative.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Judge Bellacosa.


text:
    The People of the State of New York, Respondent, v May Aphaylath, Appellant.
    Submitted December 29, 1986;
    decided January 8, 1987
   Motion for reargument of appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 68 NY2d 945.]

Judge Bellacosa taking no part.


text:
    Helen G. Kraus (Davis) et al., Respondents, v Spencer D. Davis, Appellant.
    Decided January 8, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (NY Const, art VI, § 3 [b]; CPLR 5601).