text:
    Federal Deposit Insurance Corporation, Appellant, v Harris Shapiro, Respondent.
    Decided February 13, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that, insofar as the order appealed from affirmed the denial of plaintiffs motion for leave to renew its motion for summary judgment, it does not finally determine the action within the meaning of the Constitution, and upon the ground that, as to the remainder of the order appealed from, no substantial constitutional question is directly involved.


source: Caselaw Access Project

license: Public Domain

text:
    Stuart Goldstein, Respondent, v Rose Mokry, Appellant.
    Decided February 13, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from an order of reversal (CPLR 5601, as amended by L 1985, ch 300, § 1), and upon the further ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    In the Matter of the Application of Larry B. Hameed, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided February 13, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a substantial respect (CPLR 5601 [former a] [iii]).

Judge Hancock, Jr., taking no part.


text:
    James Talcott Factors, Inc., Respondent, v Larfred, Inc. (Fred Simon), Appellant.
    Submitted January 27, 1986;
    decided February 13, 1986
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Matter of Small, 158 NY 128).

Judge Alexander taking no part.


text:
    Latham Sparrowbush Associates, Respondent, v Cohoes Industrial Terminal, Inc., Appellant.
    Submitted January 21, 1986;
    decided February 13, 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 (Cohen and Karger, Powers of the New York Court of Appeals § 36 [c], at 144-147).


text:
    In the Matter of the Account of Bank of New York, as Trustee under the Will of Langdon P. Marvin, Deceased, et al., Respondents; Langdon P. Marvin, Jr., Appellant.
    Submitted January 27, 1986;
    decided February 13, 1986
   Motion, insofar as treated as one for an extension of time within which to make a motion to vacate this court’s November 1, 1985 order of dismissal, granted (22 NYCRR 500.11 [g] [3]). Motion to vacate the order of dismissal denied. [See, 66 NY2d 916.]


text:
    John Pace et al., Appellants, v Nancy D. Rebore et al., Respondents. (And Another Action.)
    Submitted February 3,1986;
    decided February 13, 1986
   Motion to vacate the Court of Appeals order of dismissal dated January 7, 1986 denied with $20 costs. [See, 67 NY2d 647.]

Judge Titone taking no part.


text:
    Lucien J. Rossi, Appellant, v First National City Bank, Also Known as Citibank, Respondent, et al., Defendant.
    Decided February 13, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division insofar as it affirmed the denial of plaintiffs motion to vacate a default judgment does not finally determine the action within the meaning of the Constitution, and upon the ground that, as to the remainder of the order of the Appellate Division, no substantial constitutional question is directly involved.


text:
    Phyllis Berkowitz, Appellant, v Howard Berkowitz et al., Respondents.
    Argued January 10, 1986;
    decided February 19, 1986

      APPEARANCES OF COUNSEL

      Clifton M. Tamsett, Jr., and Frank W. Getman for appellant.

      Joseph T. Pondolfino, Jr., for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to the Appellate Division, Third Department, for review of the facts and exercise of discretion. We agree with the dissenters below that plaintiff adduced proof legally sufficient to constitute a prima facie cause of action based on Debtor and Creditor Law § 275, and that the majority erred in holding that, as a matter of law, defendant was prejudiced by the trial court’s amendment of the complaint to conform to such proof. We remit to the Appellate Division for it to determine whether the trial court’s verdict in plaintiffs favor on that cause of action was against the weight of the evidence and to exercise its discretion with respect to the amendment.

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


text:
    981 Third Ave. Corp., Appellant, v John D. Beltramini et al., Respondents.
    Argued January 7, 1986;
    decided February 19, 1986

      APPEARANCES OF COUNSEL

      Bernard Gartlir, Norman Gross and David L. Birch for appellant.

      John A. Santospirito and Anthony P. Quinn for John D. Beltramini, respondent.

      Jerry J. Limoncelli for Recess Restaurant, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

On plaintiff’s appeal as against defendant Recess Restaurant, the order of the Appellate Division should be affirmed, with costs. Plaintiff's appeal as against defendant Beltramini should, however, be dismissed, without costs.

The Appellate Division having modified as to Recess by dismissing the entire complaint as to it and there being no cross claims between it and Beltramini, there is party finality as to Recess. As to Beltramini, however, the Appellate Division granted plaintiff summary judgment on the cause of action for specific performance but left four other causes of action pending. Plaintiff’s appeal as to Beltramini must be dismissed for nonfinality, therefore, despite plaintiff’s claim that the "effect” of dismissing the complaint as to Recess is "that plaintiff has no cause of action against Beltramini for damages.” Appeal to this court lies only from an order or judgment of the Appellate Division, not from the implied effect of its decision (CPLR 5601 [a]; Berney v General Acc. Fire & Life Assur. Corp., 42 NY2d 870; Siegel, NY Prac § 524, at 719).

Plaintiff’s causes of action against Recess seek to recover as a third-party beneficiary of the lease between Beltramini and Recess, for negligence on the part of Recess in performance of the lease provision fixing the renewal rental, for unjust enrichment and for fraud. None of the causes of action can be sustained, regardless of plaintiff’s standing as a third-party beneficiary, a question we need not decide, for the renewal rent was fixed in accordance with the requirements of the renewal clause of the lease.

That clause fixed the annual rent for the renewal term at 6% of the market value of the land and building free of the lease and any renewal thereof, but not less than $12,000. However, it also provided that: "In the event that the Landlord and Tenant do not agree upon the net annual rental for such renewal term at least twelve (12) months before the expiration of the term, the market value of the land and building shall be determined by appraisal”. Beltramini and Recess agreed upon a market value of $500,000 and an annual rental of $30,000. That Recess forwarded to Beltramini an appraisal which may not have arrived at market value as provided in the renewal clause establishes no breach of the lease provision, for market value was to be determined by appraisal only if Beltramini and Recess did not agree upon the net annual rental, an event which, in fact, never occurred.

Moreover, there being nothing to establish that Recess relied upon or was even aware of plaintiff’s contract with Beltramini, Recess owed plaintiff no duty of reasonable care in fixing the renewal rental under its lease with Beltramini (cf. White v Guarente, 43 NY2d 356, 363) and cannot be said "in equity and good conscience” to have been unjustly enriched (Miller v Schloss, 218 NY 400, 407; see, Bradkin v Leverton, 26 NY2d 192, 197). Finally, no evidence has been presented in support of the cause of action for fraud, which, indeed, alleges only a misrepresentation to plaintiff by Beltramini, not by Recess.

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

On plaintiff’s appeal as against defendant Recess Restaurant, Inc., order affirmed, etc.


text:
    Rhoda Schneider, as Administratrix of the Estate of Bertha Rosenthal, et al., Appellants, v Kings Highway Hospital Center, Inc., Respondent.
    Decided February 19, 1986

      APPEARANCES OF COUNSEL

      Murray Weitman and Morgan Kennedy for appellants.

      Robert R. MacDonnell for respondent.
   OPINION OF THE COURT

Memorandum.

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

To establish a prima facie case of negligence based wholly on circumstantial evidence, "[i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” (Ingersoll v Liberty Bank, 278 NY 1, 7). The law does not require that plaintiff’s proof "positively exclude every other possible cause” of the accident but defendant’s negligence (ibid, [quoting Rosenberg v Schwartz, 260 NY 162, 166]). Rather, her proof must render those other causes sufficiently "remote” or "technical” to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (see, e.g., Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205; Market v Spencer, 5 NY2d 958, affg without opn 5 AD2d 400).

Although plaintiff may in her attempt to meet that burden include proof tending to negate the significance of other possible causes (see, Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d, at pp 204-205, supra), we have on numerous occasions upheld or reinstated a jury’s verdict where the logic of common experience itself, as applied to the circumstances shown by the evidence, led to the conclusion that defendant’s negligence was the cause of plaintiff’s injury. Thus, in Betzag v Gulf Oil Corp. (298 NY 358), although it was possible that plaintiff lost his balance while kneeling atop an oil tanker and pulling taut a frayed rope, common sense made it more likely that he fell when the rope suddenly snapped, or so the jury could find, and in Maresca v Lake Motors (25 NY2d 716, affg without opn 36 AD2d 533), it was for the jury to say whether defendant’s car, traveling in a lane parallel with the truck driven by plaintiff’s decedent, collided with the truck because defendant crossed into its lane or because decedent’s truck veered into defendant’s car. This is such a case.

Here, as in Haber v Cross County Hosp. (37 NY2d 888, 889, on remand 50 AD2d 885, appeal dismissed 38 NY2d 1001), plaintiff established her prima facie case by proof of the hospital’s rule requiring that the side rails on the bed of a patient over 70 years of age be maintained in raised position at all times and by evidence (viewed in the light 'most favorable to plaintiff, as it must be, Betzag v Gulf Oil Corp., 298 NY, at p 364, supra) from which the jury could reasonably conclude that it was more likely that a hospital staff person had lowered the bed rails than that plaintiff’s decedent, a weak and elderly patient who required assistance in getting out of bed, who remembered only that she had rolled over and who had landed face down on the floor parallel to the lowered bed rail, had done so. The more particularly is this so because the location of the spring latch (at the foot of the bed), the force required to effect its release and the patient’s deteriorated physical condition tended to prove that she was not able to lower the rail.

Plaintiff was not required to prove the exact nature of defendant’s negligence (Markel v Spencer, supra), nor did her deposition testimony, read into evidence by defendant, that she knew how to lower the bed rails and had on occasion done so, require dismissal of plaintiff’s case for the jury could have concluded that her reference to the "button” involved was to the device for lowering or raising the bed mattress, not to the spring latch which had to be released before the bed rail could be lowered.

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:
    The People of the State of New York, Respondent, v Frederick H. Phelps, Appellant.
    Decided February 19, 1986
    APPEARANCES OF COUNSEL

      Frederick H. Phelps, appellant pro se.

    No appearance 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. Inasmuch as defendant did not object to the admissibility of the radar reading, the issue is not preserved for our review (CPL 470.05). With respect to the failure of the District Attorney to file any submission, we call attention to County Law § 700 and People v Wright (22 AD2d 754, affd 16 NY2d 736, cert denied 384 US 972).

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


text:
    The People of the State of New York, Respondent, v Robert Walsh and Geraldine Walsh, Appellants.
    Decided February 19, 1986

      APPEARANCES OF COUNSEL

      Arnold C. Stream and Richard A. La Rosa for appellants.

      Robert Abrams, Attorney-General (Edward D. Saslaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

People v Valenza (60 NY2d 363) does not prevent the prosecutor from charging an individual who files an allegedly false sales and use tax return with a violation of Penal Law § 175.35 — that is, offering a false instrument for filing in the first degree (see, People v Pisano, 105 AD2d 1156; People v Lacay, 115 AD2d 450). Valenza holds that "[a] vendor who collects sales taxes from customers, but fails to remit the sales taxes due the State under circumstances indicating an intent to permanently deprive the State of the taxes, may not be subjected to criminal prosecution for larceny by embezzlement” (People v Valenza, supra, p 367). In Valenza, we noted that "[t]he Legislature’s structuring of [Tax Law former] section 1145 to provide substantial civil penalties for failing to pay over sales tax and to exclude this conduct from the criminal penalties section [Tax Law former § 1145 (b)] must be deemed to manifest an intent to exclude such conduct from criminal prosecution under either the Tax Law or the Penal Law” (People v Valenza, supra, p 372). While excluding criminal penalties for failing to pay over sales tax, Tax Law former § 1145 (b) provided for criminal penalties for filing a false sales or use tax return. There being no legislative intent to exclude criminal sanctions for the latter activity, the general rule that a prosecution may be obtained under any penal statute proscribing certain conduct, notwithstanding that the penal statute overlaps with a more specific statute, applies in this situation (People v Eboli, 34 NY2d 281, 287; People v Lubow, 29 NY2d 58, 67; People v Bergerson, 17 NY2d 398, 401).

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 in a memorandum.

       In the aftermath of our decision in Valenza, the Legislature amended Tax Law former § 1145 by adding the following subdivision: "(d) The penalties provided for in this section shall not preclude prosecution pursuant to the penal law with respect to the willful failure of any person to pay over to the state any sales tax * * * whenever such person has been required to collect and has collected any such sales tax” (L 1984, ch 575, § 1, since renumbered as Tax Law § 1817 [k], L 1985, ch 65, § 39). While recognizing that this amendment is not dispositive of the issue now before us, we nevertheless view the legislative response to the Valenza decision as evidencing an over-all intent to permit the prosecutor the choice of proceeding under the Penal Law for criminal offenses also proscribed by the Tax Law.


text:
    The People of the State of New York, Appellant, v Chesterfield Wright, Respondent.
    Decided February 19, 1986

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.

      Edward J. Nowak, Public Defender (Howard K. Broder of counsel), 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 reversed for reasons stated in the dissenting memorandum of Justice John J. Callahan at the Appellate Division (112 AD2d 38, 39), judgment of conviction reinstated and case remitted to the Appellate Division, Fourth Department, for consideration of the facts.

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


text:
    Arthur Bell, an Infant, by His Mother and Natural Gurdian, Carole Bell, et al., Appellants, v Anthony R. Perrino et al., Respondents.
    Decided February 19, 1986

      APPEARANCES OF COUNSEL

      Dorothy M. Finger for appellants.

      Rocco Conte for City of New Rochelle, respondent.

      George S. Hodges for Deluxe Radio Taxi, 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 affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 124).

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


text:
    The People of the State of New York, Respondent, v Orelio Martinez, Appellant.
    Submitted February 13, 1986;
    decided February 19, 1986
   Appeal dismissed. The order is not adverse to defendant within the meaning of CPL 450.90 (1). The Appellate Division having reversed the judgment of conviction, defendant, the appellant in that court, was not aggrieved by its order, notwithstanding that his suppression request was granted only in part (People v Rolston, 50 NY2d 1048).


text:
    Agway Petroleum Corporation, Respondent, v James J. Peck et al., Appellants.
    Decided February 19, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal (CPLR 5601, as amended by L 1985, ch 300, § 1), and upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Charles C. Bingham, Individually and as Executor of Robert M. Bingham, Deceased, Appellant, v Patricia M. Godfrey, Individually and Doing Business as Empire Commercial Maintenance, et al., Appellants, and National Super Service Co., Respondent, et al., Defendants.
    Submitted January 27, February 10, 1986;
    decided February 19, 1986
   Motion to dismiss appeals taken by defendants Patricia M. Godfrey, individually and doing business as Empire Commercial Maintenance, and Donald Garsia granted and appeals dismissed, without costs, upon the ground that the appeals are untimely.

Motion to dismiss appeal taken by plaintiff Charles C. Bingham granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that an appeal does not lie as of right (CPLR 5601, as amended by L 1985, ch 300).


text:
    Christine M. Carr and others, as Parents and Natural Guardians of Christine M. Carr, Appellants, v Indian Lake School District, Respondent.
    Decided February 19, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    Jeannine N. Der Ohannesian, Appellant, v Russell Sage College et al., Respondents.
    Submitted December 30, 1985;
    decided February 19, 1986
   Motion for leave to appeal dismissed insofar as the order sought to be appealed from relates to defendant Russell Sage College, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied. Twenty dollars costs and necessary reproduction disbursements to respondents.


text:
    Debra A. Duffett, Respondent, v Robert B. Duffett et al., Appellants.
    Decided February 19, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from an order of reversal (CPLR 5601, as amended by L 1985, ch 300, § 1), and upon the further ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Daniel H. Ivancic, Appellant, v Mary Olmstead, Respondent.
    Submitted February 10, 1986;
    decided February 19, 1986
   Motion for reargument, etc., denied with $20 costs. We note that in seeking reargument plaintiff has failed to comply with this court’s rule requiring that 10 copies of a brief or memorandum be filed (22 NYCRR 500.11 [g]). [See, 66 NY2d 349.]


text:
    Leonard Smith, Inc., et al., Respondents, v Merrill Lynch, Pierce, Fenner and Smith et al., Respondents, and Chase Manhattan Bank, N. A., Appellant.
    Decided February 19, 1986
    APPEARANCES OF COUNSEL

      David R. Murphy for appellant.

      John Starrs for plaintiffs-respondents.

      Robert J. Rock for Marine Midland Bank, N. A., respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal or the order of modification, absent dissents by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    The People of the State of New York ex rel. Reginald Robertson, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted August 19, 1985;
    decided February 19, 1986
   Motion for a stay denied as unnecessary (CPLR 5519 [e]). Under the circumstances of this case, the Appellate Division’s order of dismissal is deemed an affirmance.


text:
    873 Third Avenue Corp., Appellant, v Kenvic Associates et al., Respondents, et al., Defendants.
    Argued February 3, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      William R. Glendon, Frederick P. Glick, Guy C. Quinlan and Margaret Blair Soyster for appellant.

      Philip H. Schaeffer and Lenard H. Mandel for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with former Justice Max Bloom, writing for the majority at the Appellate Division (109 AD2d 489), that the ground lessee (referred to as lessor in that opinion) did not have an ownership interest in the premises within the meaning of the ordinance.

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


text:
    Frederick Pordum, Appellant, v State of New York, Respondent.
    (Claim No. 61310.)
    Argued February 6, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Gerard John De Wolf and Bernard F. Ashe for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll, Robert Hermann and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (112 AD2d 717).

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


text:
    Bruce Brown, Appellant, v V & R Advertising, Inc., et al., Respondents, et al., Defendant.
    Argued February 10, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Raymond F. Gregory for appellant.

      Barry R. Fischer, Lawrence H. Cooke, Felix H. Kent, Laura H. Markson, Walter E. Diercks and James L. Winston for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (112 AD2d 856).

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


text:
    Citigifts, Inc., et al., Appellants, v Samuel J. Pechnik et al., Respondents, et al., Defendants.
    Argued February 10, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Sherwin Grossfield for appellants.

      Herbert Rubin, David B. Hamm and Barbara D. Goldberg for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. The Appellate Division properly concluded that there was a novation which extinguished the old agreement and relegated plaintiffs to an action for breach of the new agreement (Northville Indus. Corp. v Fort Neck Oil Terms. Corp., 100 AD2d 865, 867, affd 64 NY2d 930).

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


text:
    John L. Murray, Appellant, v LeRoy Central School District et al., Respondents.
    Argued February 4, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Theron E. Howard for appellant.

      E. Robert Fussell for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. There was no compliance with the notice of claim requirements of Education Law § 3813— neither substantial compliance with requirements as to form nor strict compliance with the requirements of notice (see, Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 547-548).

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


text:
    The People of the State of New York, Appellant, v William Walker, Respondent.
    Argued February 6, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Brian D. Foley, Barbara D. Underwood and Sarah G. Noll of counsel), for appellant.

      Alan S. Axelrod and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (110 AD2d 730).

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


text:
    William Pollnow et al., Appellants, v Poughkeepsie Newspapers, Inc., et al., Respondents.
    Argued February 4, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Richard B. Wolf for appellants.

      Susanna E. Bedell, Robert C. Bernius, Domenick L. Gabrielli and Pamela J. Brown for Poughkeepsie Newspapers, Inc., respondent.

      John Nicholas Iannuzzi for Anna Bartelemucci, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs commenced this action alleging that letters written by defendant Bartelemucci and printed in a newspaper published by defendant Poughkeepsie Newspapers, Inc. defamed the 17-year-old infant plaintiff by falsely accusing him of criminal conduct. The letters described his conduct and commented critically on actions of the police officials and courts responsible for handling the charges against him.

Poughkeepsie Newspapers, Inc. moved to dismiss the complaint for failure to state a cause of action and also for summary judgment. Its supporting papers contained affidavits by employees of the newspaper in which they alleged facts which they claimed established the accuracy of the statements published and the absence of any irresponsible conduct on their part in approving publication. Confronted with this submission, the burden rested upon plaintiffs to establish that the alleged defamatory statements were false (see, Fairley v Peekskill Star Corp., 83 AD2d 294, 297; Wilson v ScrippsHoward Broadcasting Co., 642 F2d 371; Prosser and Keeton, Torts § 116, at 839 et seq. [5th ed]). They failed to respond to the newspapers motion with evidence by the infant plaintiff, however, or anyone else having knowledge of the accuracy of the accusations but relied entirely on a verified complaint executed by the infant plaintiff’s mother. Although CPLR 105 (t) permits a verified pleading to be used as an affidavit, and thus this pleading was properly submitted in opposition to defendant’s motion for summary judgment, the infant’s mother did not have personal knowledge of the incident and her verified complaint was not sufficient to raise a question of fact on the issue of falsity. Accordingly, the newspaper’s motion for summary judgment was properly granted (see, Gaeta v New York News, 62 NY2d 340, 350-351; Karaduman v Newsday, Inc., 51 NY2d 531, 545).

Defendant Bartelemucci also moved to dismiss the complaint for failure to state a cause of action against her. The Appellate Division granted the motion in part and dismissed plaintiff’s first cause of action charging defendant Bartelemucci with negligence. It denied the motion as to the remaining causes of action, however, claiming that the complaint fairly stated claims against defendant Bartelemucci charging her with grossly irresponsible conduct. In challenging that ruling on this appeal, plaintiff concedes that under the circumstances of this case defendant Bartelemucci is charged with the same duty of care as the newspaper. Inasmuch as the newspaper was liable only for grossly irresponsible conduct (Gaeta v New York News, supra; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196), plaintiffs’ first cause of action charging defendant Bartelemucci with ordinary negligence was properly dismissed.

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

Order affirmed, etc.


text:
    Harvey Levine et al., Respondents, v Carmin Sarbello et al., Appellants, and Carmelo Giuffre et al., Respondents, et al., Defendant. (Matter No. 1.) In the Matter of Carmelo Giuffre, Respondent, v Carmin Sarbello et al., Appellants. (Matter No. 2.)
    Argued February 5, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Hugo Puglia and Charles F. Alario for appellants.

      Alan M. Dubow for plaintiffs-respondents.

      Alan J. Firestone for defendants-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 197).

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


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v State Board of Equalization and Assessment, Respondent, and Village of Pleasantville et al., Intervenors-Respondents. (And 167 Other Related Proceedings.)
    Argued February 3, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Adlai S. Hardin, Jr., Martin B. Cowan, Mark S. Tulis and John Moss Hinchcliff for appellant.

      Robert Abrams, Attorney-General (Michael S. Buskus, Robert Hermann and Peter H. Schiff of counsel), for respondents.

      Michael Whiteman, Melvin H. Osterman, Jr., and Jonathan P. Nye for Village of Pleasantville and others, intervenorsrespondents.

      Henry J. Smith and James G. Fine for City of Mount Vernon and others, intervenors-respondents.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John P. MacArthur of counsel), for City of New York, intervenor-respondent.

      Marvin S. Fink for Village of Scarsdale, intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (103 AD2d 453). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Sunset Bay, Appellant.
    Argued February 3, 1986;
    decided March 18, 1986
    APPEARANCES OF COUNSEL

      Mary R. Falk and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of murder in the second degree in connection with the death of Roberta Fort. His main contentions are that the evidence adduced at trial, which was entirely circumstantial, was insufficient to establish his guilt, and that the destruction of a pubic hair found near the victim’s body prior to trial deprived him of a fair trial.

The evidence at trial established that the defendant lived in the apartment building in which the victim was found murdered, that the defendant was in the habit of walking barefoot on the building’s roof, that a pubic hair found near the victim’s body was microscopically indistinguishable in 22 particulars from samples taken from the defendant, that the defendant’s footprint measures in 32 particulars to within five millimeters of a footprint found in undisturbed plaster powder which covered the apartment where the body was discovered, that the defendant left his fingerprint on the right roof door just four feet from where running, bare footprints disappeared on their way to the door, that the defendant knew that the victim’s hands had been tied with her bra, a fact that was not publicly known and which the prosecution claimed could be learned only by approaching the body and tilting it, and that the defendant knew that stains outside his doorway were human blood when tests showed that the blood was the victim’s type rather than the defendant’s.

Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference, as we must (see, e.g., People v Castillo, 47 NY2d 270, 277; People v Benzinger, 36 NY2d 29, 32), we conclude that the jury’s verdict was sufficiently supported (see, People v Levine, 65 NY2d 845; People v Giuliano, 65 NY2d 766; People v Marin, 65 NY2d 741).

We also reject defendant’s claim that the F.B.I.’s destruction of the pubic hair found near the victim’s body deprived him of a fair trial. The pubic hair was available for examination prior to the defendant’s entry of his initial guilty plea, but was destroyed by the F.B.I. sometime thereafter in the good-faith belief that it was no longer necessary to preserve it as evidence.

After a hearing, Criminal Term found, as a fact, that, at the time defendant had originally pleaded guilty, defense counsel had made a "specific trial decision” that there was no need to conduct such an examination, and that preclusion of all evidence concerning the pubic hair comparisons was not necessary to insure a fair trial. In reaching this determination, the court reasoned that the question of guilt or innocence did not turn on this evidence alone, that only the inculpatory aspects of the evidence had been lost, and that the exculpatory factors of the evidence remained available for use at trial. Indeed, defendant could have called an available expert to describe the subjective and equivocal nature of the comparison process and its pitfalls and dangers. He failed to do so. At trial, the defendant was given wide latitude in cross-examining the People’s expert, and the court properly instructed the jury to weigh that evidence in light of defendant’s inability to present contrary expert testimony. In these circumstances, we conclude that Criminal Term’s determination struck the appropriate balance of eliminating prejudice to defendant while, at the same time, protecting the interests of society (People v Kelly, 62 NY2d 516).

The remaining claims are similarly without merit. The receipt of the expert photometric testimony, limited to measurements of the footprints, was not an abuse of discretion (see, People v Cronin, 60 NY2d 430, 433). Nor was admission of the tape recording of the first two hours of defendant’s conversations with a police detective barred by the Appellate Division’s prior determination concerning defendant’s admissions on two other tapes. As the Appellate Division found on the first appeal, defendant was informed of his rights and there was no coercive behavior with respect to the statements made on that first tape.

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

Order affirmed in a memorandum.

       A prior judgment of conviction, entered upon a plea of guilty, was reversed by the Appellate Division, which found that a confession made by the defendant should have been suppressed as involuntary (People v Bay, 76 AD2d 592, appeal dismissed 54 NY2d 808).


text:
    In the Matter of Welland Estates, Inc., Appellant, v Charles Smith, as Commissioner of the Department of Buildings of the City of New York, et al., Respondents.
    Argued February 10, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Donald S. Snider and Gerald M. Levine for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Ernst H. Rosenberger at the Appellate Division (109 AD2d 193).

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


text:
    Aaron L. Siegel, Appellant, v Kentucky Fried Chicken of Long Island, Inc., Respondent.
    Argued February 5, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Bruce D. Mencher for appellant.

      Eugene I. Farber and Steven T. Lowe for respondent.
   OPINION OF THE COURT

Memorandum.

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

The lease contains four printed provisions referring to the "Landlord or Landlord’s agent,” but in its default provision refers only to "the Landlord serving a written five (5) days’ notice upon Tenant” to be followed by "Landlord [serving] a written three (3) days’ notice of cancellation”. Its printed provisions defined the term "Landlord” to mean "only the owner, or mortgagee in possession, for the time being”. It also contained a rider consisting of 44 typewritten paragraphs, three of which referred to a named attorney as escrowee, but none of which specified that notice of default or of termination which, as noted, was to be given by the landlord, could be given by the landlord’s agent or by an attorney, or otherwise modified the printed definition of the term "Landlord.”

Under such a lease notices of default and of termination signed not by the owner or the attorney named in the lease, but by another attorney with whom the tenant had never previously dealt, were insufficient and the tenant was entitled to ignore them as not in compliance with the lease provisions concerning notice (cf. Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 AD2d 466, 474; see, Reeder v Sayre, 70 NY 180, 188).

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

Order affirmed, with costs, in a memorandum.


text:
    John E. Poggi et al., Appellants, v City of New York et al., Respondents, and Samuel De Milia, Individually and as President of the Patrolmen’s Benevolent Association of the City of New York, et al., Intervenors-Respondents.
    Submitted February 5, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Murray A. Gordon and James D. Bilik for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Jay C. Cooke and Paul T. Rephen of counsel), for respondents.

      Raymond E. Kerno and Richard Hartman for intervenorsrespondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Sullivan. We note that we do not reach the question whether the variable supplements funds constitute a pension or retirement benefit. That question is unnecessary to the determination of the issues before us: whether plaintiffs’ pension contract rights or their equal protection rights have been impaired. (See also, Matter of Lippman v Board of Educ., 66 NY2d 313.)

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Jack Hawley, Respondent, v South Orange-town Central School District, Appellant.
    Argued February 4, 1986;
    decided March 18, 1986

      APPEARANCES OF COUNSEL

      Dennis E. A. Lynch and. G. Nicholis Del Pizzo for appellant.

      Janis Levart Barquist and James R. Sandner for respondent.
   OPINION OF THE COURT

Memorandum.

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

The only issue presented for our review on this appeal is the correctness of the Appellate Division’s determination that respondent school district could not withhold the salary of petitioner, a tenured teacher, during his period of suspension pursuant to Education Law § 3020-a. We hold that the determination was correct since "[i]t is now well settled that * * * the pay of a teacher suspended pursuant to subdivision 2 of section 3020-a of the Education Law pending hearing and determination of disciplinary charges may not be withheld” (Matter of Adlerstein v Board of Educ., 64 NY2d 90, 98). This is because a tenured teacher’s "[cjompensation is a matter of such substantive right * * * that it cannot be taken away from him except pursuant to explicit statutory authorization” (Matter of Jerry v Board of Educ., 35 NY2d 534, 541-542). Consequently, the compensation paid to the tenured teacher during the period of suspension may not properly be characterized as "damages” to which a common-law duty to mitigate would apply, as the school district argues, and the district may not withhold such compensation by reason of the teacher’s failure to seek other employment. Any seeming detriment to the public fisc is ameliorated by the school district’s authority to assign a suspended teacher to a "nonteaching assignment * * * which bears reasonable relationship to the suspended teacher’s competence and training and is consistent with the dignity of the profession” (Matter of Adlerstein v Board of Educ., 64 NY2d, at p 100, supra).

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

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


text:
    Allstate Insurance Company, Respondent-Appellant, v Farmers Insurance Group et al., Defendants, and U. S. Fire Insurance Company, Appellant-Respondent.
    Submitted February 3, 1986;
    decided March 18, 1986
   Motion to dismiss appeal taken by U. S. Fire Insurance Company denied.


text:
    Peter M. Calamel et al., Appellants, v Ridge View Realty Corp. et al., Respondents.
    Decided March 18, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal (CPLR 5601, as amended by L 1985, ch 300, § 1).


text:
    Towne Associates, Respondent, v Stephen V. Behr, Appellant.
    Submitted February 10, 1986;
    decided March 18, 1986
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b] [7]).

Motion for a stay dismissed as academic.


text:
    Lloyd Helman, Appellant, v County of Warren, Respondent, et al., Defendant.
    Argued February 7, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Jeffrey Canale and William V Canale for appellant.

      Jason L. Shaw for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 560). Completely absent in this case was any “direct contact between agents of the municipality and the injured party”, upon which a special duty could be predicated (Sorichetti v City of New York, 65 NY2d 461, 469; see also, Yearwood v Town of Brighton, 64 NY2d 667).

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


text:
    County of Monroe et al., Appellants, v AFSCME, Council 82, et al., Respondents.
    Argued February 12, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Charles R. Valenza, County Attorney (Nira T. Kermisch of counsel), for appellants.

      Mark T. Walsh, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that petitioners have failed to demonstrate that Deputy Fagan performed any civil duties so as to entitle the newly elected Sheriff, Andrew Meloni, to discharge him without regard to the contractual limitations in the collective bargaining agreement entered into by the Sheriff’s predecessor (cf. Matter of Reese v Lombard, 46 NY2d 904; Matter of Sirles v Cordary, 40 NY2d 950).

Fagan had served as a guard in the Monroe County Jail for eight years prior to being discharged by Sheriff Meloni. The Sheriff contends that because the jail houses both criminal and civil prisoners, Fagan did not perform exclusively criminal duties. The evidence, however, supports the finding by both courts below, that for at least the 18 months preceding Meloni’s assumption of office, Fagan was specifically assigned to guard criminal prisoners and worked in an area of the jail where only criminal prisoners were housed.

Supreme Court’s conclusion that Fagan could be discharged without regard to the collective bargaining agreement was, as acknowledged by that court, based solely on the "potential” for civil duties stemming from the presence of civil prisoners in the jail. As the Appellate Division recognized, under such a test no Deputy Sheriff would receive the continued protection of the collective bargaining agreement, as every deputy could conceivably come into contact with a civil prisoner at some time. That court properly focused on the actual duties being performed by Fagan prior to his termination, and was correct in its determination that Fagan’s grievance must be resolved pursuant to the collective bargaining agreement.

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

Order affirmed, with costs, in a memorandum.


text:
    Etty Mayerowitz, an Infant, by her Father and Natural Guardian, Abraham Mayerowitz, et al., Appellants, v Beth Jacob Teachers Seminary of America, Defendant, and Carol Studios, Inc., et al., Respondents.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      David Jaroslawicz for appellants.

      Marshall D. Sweetbaum for Carol Studios, Inc., respondent.

      Simon P. Richards for 158 Broadway Realty, respondent.
   OPINION OF THE COURT

Motion for reargument granted, this court’s decision [unpublished] and judgment dated November 26, 1985 vacated and, upon reargument, 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. Dismissal of the action was not an abuse of discretion in light of the fact that when dismissed it had been pending for more than 11 years.

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


text:
    Cibro Petroleum Products, Inc., Appellant, v Roderick G. W. Chu, as Commissioner of the New York State Department of Taxation and Finance and as President of the New York State Tax Commission, Respondent.
    Argued February 7, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      David F. Kunz, John E. Holt-Harris, Jr., James B. Ayers and Peter A. Lynch for appellant.

      Robert Abrams, Attorney-General (Nancy A. Spiegel, Robert Hermann and Peter H. Schiff of counsel), 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 at the Appellate Division. We add that the legislative history establishes that the tax was intended to "apply to all competing petroleum businesses, and, with the exception of residential fuel and petrochemical feedstocks, to virtually all petroleum sold in the State” (Memorandum of Assembly Rules Committee, 1983 NY Legis Ann, at 173; see, Governor’s Program Bill Memorandum, at 4) and, therefore, that "aviation fuel” as used in Tax Law § 300 (b) covers the fuel sold by plaintiff to the United States Government notwithstanding that its chemical composition differs from that of commercial aviation fuel.

We have not considered the constitutional theories newly advanced before us and which plaintiff concedes were not argued to the courts below. Although within the constitutional concepts presented in the complaint, they have not been preserved for our review in view of plaintiff’s failure to argue them below (Matter of Barbara C., 64 NY2d 866; Matter of Eagle v Paterson, 57 NY2d 831; Barber v Dembroski, 54 NY2d 648; cf. Cooper v Morin, 49 NY2d 69, 78).

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

Order affirmed, with costs, in a memorandum.


text:
    Gregory J. Lloyd et al., Appellants, v Town of Wheatfield, Respondent.
    Argued February 7, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Roger J. Niemel for appellants.

      F. Warren Kahn for respondent.
   OPINION OF THE COURT

Memorandum.

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

The damages sought by plaintiffs, for purely economic loss, are too speculative as a matter of law to sustain plaintiffs’ causes of action and the complaint, therefore, was properly dismissed (see, Tobin v Grossman, 24 NY2d 609, 615-616 [citing Battalla v State of New York, 10 NY2d 237, 242]; cf. Friedland v Myers, 139 NY 432, 435 [damages may be recovered provided that they are proximate in effect, neither speculative nor uncertain in character and were reasonably foreseen as a consequence of the wrong]). Accordingly, we need not decide whether the decision of defendant’s building inspector involved discretionary or ministerial conduct (see, Rottkamp v Young, 21 AD2d 373, affd on opn below 15 NY2d 831).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Joseph Bonaventure et al., Appellants, v New York State Thruway Authority, Respondent.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      Frank L. Shemoff for appellants.

      Bridget Mulvenna 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. There was no abuse of discretion by the lower courts in denying claimants’ motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6).

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


text:
    In the Matter of Niagara Mohawk Power Corporation, Respondent, v Elaine Cutler, as Chief Assessor of the Town of Day, et al., Respondents, and Robert Spence, as Assessor of the Town of Edinburg, Appellant.
    Argued February 13, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Roger L. Paul for appellant.

      David R. Murphy for Niagara Mohawk Power Corporation, respondent.

      Phil Sloan and Robert L. Beebe for State Board of Equalization and Assessment, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons in the opinion by Justice John T. Casey at the Appellate Division (109 AD2d 403).

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


text:
    The People of the State of New York, Appellant, v Kevin Townsend, Respondent.
    Argued February 13, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Richard E. Haftel and Peter D. Coddington of counsel), for appellant.

      Cynthia R. Finn and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant and his codefendant, Bernard Graves, were convicted after a jury trial of felony murder for shooting a limousine driver during a robbery. Much of the case against defendant consisted of statements he and Graves made admitting that they had participated in the robbery and had shot the driver. The defense claimed that the statements were made involuntarily and attacked the credibility of the witnesses who claimed to have heard them.

At the beginning of trial, the court delivered preliminary instructions giving the jury an overview of trial procedure and explaining the jury’s basic functions and duties. In addition, the court read the elements of the crimes with which defendants were charged, including murder in the second degree, felony murder and robbery in the first degree. At defendant’s request, the Trial Judge also described the elements of defendant’s affirmative defense to the felony murder charge. No objection was made to the oral instructions. The court then presented each juror with written instructions outlining the elements of the charged offenses and the affirmative defense, explaining that the written instructions were only an aid to assist the jury in placing the testimony in context, and encouraging the jurors to refer to the instructions during the course of trial. Both sides objected to the written instructions.

At the conclusion of trial, the court dismissed all charges against defendant except for the felony murder count, charged the jury as to all aspects of the case — including, for the first time, the hotly disputed issues of voluntariness and credibility —and collected all copies of the previously distributed pretrial instructions.

Laudatory though the objective of enhancing jury understanding may be, and as desirable as preliminary general instructions are (see, CPL 270.40), the court’s distribution of a written outline of elements of the charges in this case constituted error. An evaluation of the sufficiency of the evidence presented should be made only when the jurors retire to deliberate, after summation by counsel and charge by the court. By permitting, even encouraging, the jurors to refer to the written outline during trial, the court invited piecemeal, premature analysis of the evidence. The court’s outline in effect served as a checklist against which jurors could measure the evidence as it came in, with the attendant danger that jurors would conclude defendant was guilty even before he could present evidence or argument. That danger was heightened here by the fact that the issues of voluntariness and credibility, both central to the defense, were not part of the outline.

Having deprived defendant of a fair trial, the error cannot be considered harmless (People v Crimmins, 36 NY2d 230, 238).

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, Respondent, v John George, Appellant.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      Leslie W. Rubin for appellant.

      Denis Dillon, District Attorney (Lawrence J. Schwarz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this appeal from a conviction for criminal sale of a controlled substance in the first degree, defendant contends first, that cross-examination of the People’s expert in the laboratory analysis of drugs as to the effect of moisture on the weight of the cocaine was erroneously limited and second, that imposition of the mandatory minimum sentence was "grossly disproportionate” in the circumstances of this case. Owing to a lack of preservation, the first issue cannot be reached. When during cross-examination the court sustained the People’s objection to the question whether, unless the material were dried out, he would also be weighing the moisture, defense counsel simply proceeded to another subject, never calling to the trial court’s attention the purpose of the question, or disputing the People’s claim that it was irrelevant, or in any way attempting to call the court’s attention to the nature of the alleged error. Defense counsel having failed to make known his position with respect to the ruling at a time when it could have been corrected, if indeed there was error, no question of law is presented (CPL 470.05, 470.55). Nor is there merit to defendant’s second contention, regarding sentence, to the extent any constitutional objection has been preserved for our review (see, People v Donovan, 59 NY2d 834; People v Broadie, 37 NY2d 100, cert denied 423 US 950).

Defendant’s conviction should be affirmed on the ground that the testimony of the People’s expert established that the cocaine weighed more than two ounces. The ground relied upon by the Appellate Division — that the offer of defendant’s accomplice to sell "a little bit over” two ounces of cocaine was itself sufficient to establish weight for purposes of the crime of first degree sale — was erroneous. While proof of an offer may in some circumstances establish that a sale has occurred (see, Penal Law § 220.00 [1]), the weight of the material must be independently shown (see, People v Kenny, 30 NY2d 154; People v Lawson, 84 Misc 2d 24; see also, People v Lam Lek Chong, 45 NY2d 64, 72, cert denied 439 US 935).

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 in a memorandum.


text:
    The People of the State of New York, Respondent, v James Holt, True Name Jerome Smith, Appellant.
    Argued February 10, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      David Samel and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Joyce P. Adolf sen and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was convicted of stabbing a man to death in a parking lot on West 39th Street, near 9th Avenue, in Manhattan, based upon the testimony of a single eyewitness. At trial, defendant testified that, at the time that the crime was committed, he was 11 blocks away, on West 50th Street, and that, earlier in the evening he had been walking on 8th Avenue, past 39th Street, one-half block from the parking lot, but was never closer than that to the crime scene. The trial court denied defendant’s request for an alibi charge, without explanation.

This was error. As we noted in People v Barbato (254 NY 170, 178-179), "If the proof as to an alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an alibi, it may have been possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded * * * If the proof as to an alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to defendant’s guilt, he is entitled to an acquittal” (emphasis in original) (see also, People v Victor, 62 NY2d 374; People v Allen, 74 AD2d 640). Inasmuch as the gist of the defendant’s testimony was that he was elsewhere, and thus someone else committed the crime, he was entitled to an alibi charge in accordance with these principles.

It was also error to permit a police officer to testify, over objection, that he had arrested the defendant after conferring with the eyewitness. Although such implicit bolstering may not have warranted reversal in and of itself (see, People v Johnson, 57 NY2d 969), the testimony should be excluded upon proper objection at the retrial.

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

Order reversed, etc.


text:
    Madeline Rodgers, as President of the Schomburg Coalition, et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Defendants, and New York Public Library et al., Respondents.
    Argued February 11, 1986;
    decided March 20, 1986

      APPEARANCES OF COUNSEL

      Alton H. Maddox, Jr., for appellants.

      Robert Abrams, Attorney-General (Jerry Boone and Evelyn Tenenbaum of counsel), for University of the State of New York and another, respondents.

      Lois D. Thompson for New York Public Library and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 727; see also, Matter of MFY Legal Servs. v Dudley, 67 NY2d 706).

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


text:
    Fenton R. York, Respondent, v Sterling Insurance Company, Appellant, et al., Defendant.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      Timothy J. Perry for appellant.

      Robert A. Small for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that the phrase "away from” the residential premises as used in an exclusion in a homeowner’s policy does not have precisely the same meaning as would the phrase "off’ the residential premises when viewed in context in the policy. Because the precise meaning of the phrase "away from” as used in this policy is uncertain when applied to the somewhat unusual circumstances of this case, and because the unregistered vehicle exclusion was written to require that the injury occur "on” the residential premises, showing that the carrier itself distinguished between "on” and "away from”, we conclude that the Appellate Division did not err in holding the exclusion inapplicable.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., 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:
    Vito Cucuzza, Respondent, v Frank A. Vaccaro, Defendant and Third-Party Plaintiff. Robert Beuthe, Doing Business as Beuthe Excavating, Third-Party Defendant-Appellant.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      Mark A. Longo for appellant.

      Jack H. Dorfman 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 reasons stated in the opinion by Justice Charles B. Lawrence at the Appellate Division (109 AD2d 101). (See also, Duffy v Horton Mem. Hosp., 66 NY2d 473). Question certified answered in the affirmative.

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


text:
    In the Matter of Joseph F. Cioffi, Jr., Appellant, v Town of Guilderland, Respondent.
    Decided March 20, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous Appellate Division order of affirmance absent the direct involvement of a substantial constitutional question.


text:
    In the Matter of Nancy Colton, as Administratrix of the Estate of Donne Colton, Appellant, v Xavier C. Riccobono, as Administrative Judge, et al., Respondents.
    Submitted February 24, 1986;
    decided March 20, 1986
   Motions to dismiss the appeal denied.

Cross motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of the Law Firm of Daniel P. Foster, P. C., Appellant. Robert M. Morgenthau, as District Attorney for the County of New York, Respondent. (And Another Proceeding.)
    Submitted February 3, 1986;
    decided March 20, 1986
   Motion to dismiss the appeal taken as of right under CPLR 5601 (b) (1) granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of S. Simpson Gray, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted February 24, 1986;
    decided March 20, 1986
   Motion to dismiss the appeal denied. Cross motion to preelude filing of brief and appendix by respondent Grievance Committee denied.

Judge Titone taking no part.


text:
    The People of the State of New York, Appellant, v Frank Magliato, Respondent.
    Submitted February 24, 1986;
    decided March 20, 1986
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that the modification was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification” (CPL 450.90 [2] [a]).

Judge Titone taking no part.


text:
    Tip Top Farms, Inc., Appellant, v Dairylea Cooperative, Inc., Respondent. (And Two Other Actions.)
    Decided March 20, 1986
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of affirmance, absent a dissent by at least two justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, §D.


text:
    The People of the State of New York, Respondent, v Peter Rentz, Appellant.
    Argued February 5, 1986;
    decided March 25, 1986

      APPEARANCES OF COUNSEL

      L. Richard Stumbar for appellant.

      Benjamin J. Bucko, District Attorney (Robert C. Mulvey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to vacate the judgment granted, and a new trial ordered.

In 1976 the defendant was convicted of murder and the conviction was affirmed on direct appeal (57 AD2d 640). In 1982 the defendant moved to vacate the conviction pursuant to CPL 440.10 on the ground, among others, that the trial court erred in failing to disqualify a juror who had a prior relationship with two prosecution witnesses. After a hearing, the court denied the motion (120 Mise 2d 165) and the Appellate Division affirmed (105 AD2d 920). On defendant’s appeal to this court we have concluded that the motion should have been granted.

The fact that a juror had a prior relationship with a witness who testified at the trial does not automatically disqualify the juror, although it may in a particular case require that the juror be excused (CPL 270.20 [1] [c]; 270.35). In this case the juror was acquainted with two prosecution witnesses. The relationship was essentially professional (cf. People v Provenzano, 50 NY2d 420); but with respect to one of the witnesses it was, according to the juror’s own assessment, also somewhat intimate (cf People v Branch, 46 NY2d 645). What is more significant is that each of these witnesses was called by the prosecutor to refute the defendant’s claim of insanity, the primary issue presented at trial since the defendant admitted the underlying acts. The juror stated at the posttrial hearing that he did inform, or would have informed, the Trial Judge that the relationship would not affect his impartiality, but such a statement is ineffective when a showing of implied bias has been made (People v Branch, supra, at p 651). Considering all of the circumstances, the court should have found the juror unqualified to continue to serve in this particular case (CPL 270.35).

We also note that the defendant’s ability to prevail on the insanity defense was further circumscribed by the conduct of defense counsel which the court below found, without a hearing, to have been part of an over-all strategy. Although some of these actions, such as counsel’s failure to have the defendant’s mental capacity evaluated by a psychiatrist, raise a colorable claim of ineffective assistance, there is no need to remit for a hearing on this issue in view of our determination that the defendant should be granted a new trial because of the trial court’s failure to disqualify the juror.

Finally we emphasize that the court should have informed the parties of the communication from the juror before the court ruled on its effect. While it is true, as the court below noted, that the statute is silent on the procedure to be followed under such circumstances, the parties should, in most, if not all cases, be given an opportunity to be heard before the court rules on such a matter relating to the case (cf. People v Argibay, 45 NY2d 45, 52).

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

Order reversed, etc.


text:
    Hendler & Murray, P. C., Appellant, v Arthur Lambert, Respondent. (And Another Proceeding.)
    Decided March 25, 1986

      APPEARANCES OF COUNSEL

      Robert G. Post for appellant.

      David Blasband 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 modified, with costs to appellant, by deleting so much thereof as provided that Hendler & Murray, P. C., exists as the alter ego of its predecessor partnership and is liable for the debts and obligations thereof, and substituting a provision that Hendler & Murray, P. C., is a proper party to the arbitration proceeding in view of its adoption of the rights and obligations owing to respondent Arthur Lambert pursuant to the 1976 partnership agreement of the Hendler & Murray partnership and any written modification thereof and, as so modified, order affirmed. The extent to which Hendler & Murray, P. C., is liable to Lambert for debts and obligations of the predecessor partnership is a question to be settled by arbitration.

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


text:
    In the Matter of P.M. Entertainment Industries, Inc., Appellant, v State Liquor Authority, Respondent.
    Decided March 25, 1986

      APPEARANCES OF COUNSEL

      Warren B. Pesetsky and A. Thomas Levin for appellant.

      Michael J. Greenfield, Stanley Stein and Gloria M. Dabiri 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), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (114 AD2d 457).

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


text:
    Douglas Gordon, Respondent, v American Museum of Natural History, Appellant, et al., Defendants. (And a Third-Party Action.)
    Decided March 25, 1986

      APPEARANCES OF COUNSEL

      James A. Hamill for appellant.

      Lawrence K. Katz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the complaint dismissed and the certified question answered in the negative.

Plaintiff was injured when he fell on defendant’s front entrance steps. He testified that as he descended the upper level of steps he slipped on the third step and that while he was in midair he observed a piece of white, waxy paper next to his left foot. He alleges that this paper came from the concession stand that defendant had contracted to have present and which was located on the plaza separating the two tiers of steps and that defendant was negligent insofar as its employees failed to discover and remove the paper before he fell on it. The case was submitted to the jury on the theory that defendant had either actual or constructive notice of the dangerous condition presented by the paper on the steps. The jury found against defendant on the issue of liability. A divided Appellate Division affirmed and granted defendant leave to appeal on a certified question.

There is no evidence in the record that defendant had actual notice of the paper and the case should not have gone to the jury on that theory. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it (Negri v Stop & Shop, 65 NY2d 625, 626; Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg on opn at 99 AD2d 246, 249). The record contains no evidence that anyone, including plaintiff, observed the piece of white paper prior to the accident. Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time (cf. Negri v Stop & Shop, supra, at p 626 [broken baby food jars were dirty]). Thus, on the evidence presented, the piece of paper that caused plaintiff’s fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation.

Contrary to plaintiff’s contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v Woolworth Co., 24 NY2d 936, revg 31 AD2d 685) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on. Gramm v State of New York (28 AD2d 787, affd on majority opn below 21 NY2d 1025) and Kelsey v Port Auth. (52 AD2d 801) are not to the contrary. In both cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition — wear, wetness or litter — had caused them to slip. In each case, the court concluded that plaintiff had presented a prima facie case because a fall was a natural and probable consequence of the conditions present on the stairs. The defect in plaintiff’s case here, however, is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall.

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.

       Plaintiff suggests, and the majority at the Appellate Division apparently agreed, that defendant could be found liable on the theory that it had created the dangerous condition (see, Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg on opn at 99 AD2d 246, 249-250). This theory was not submitted to the jury for its consideration, however, and therefore it is not now available to plaintiff as a grounds for affirmance.


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    In the Matter of Nathaniel T. and Others, Children Alleged to be Permanently Neglected. Monroe County Department of Social Services, Appellant; Kenneth T. et al., Respondents.
    Argued February 7, 1986;
    decided March 25, 1986

      APPEARANCES OF COUNSEL

      Paul N. Humphrey and Milo I. Tomanovich for appellant.

      Edward J. Nowak, Public Defender (Susan K. Cable of counsel), for respondents.

      Bryan R. Pelkey, Law Guardian.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the order of Family Court terminating respondents’ parental rights reinstated.

In this proceeding to terminate parental rights on grounds of permanent neglect, the issue that divided the two lower courts was whether respondents failed to plan for the future of their children (Social Services Law § 384-b [7]). Family Court found that "respondents have failed to plan for the future of the children, although physically and financially able to do so, notwithstanding the petitioner’s diligent efforts and specifically, they have failed to follow through with the plans proposed by the agency workers and ordered by this Court, for the return of the children.” The Appellate Division majority, upon its own review of the record, found that "respondents were improving”, and that Family Court’s contrary findings rested on a perceived failure of respondents "to change their attitude and transform themselves into skilled, competent parents”, an improper standard. Where the Appellate Division reverses the findings of fact of the trial court and makes its own contrary findings of fact, our role is to determine which court’s findings more closely comport with the weight of the evidence (see, Oelsner v State of New York, 66 NY2d 636, 637). We conclude that the Family Court findings more closely comport with the weight of the evidence.

The obligation to plan imposed by the Social Services Law requires parents "to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative.” (Social Services Law § 384-b [7] [c].) At a minimum, parents must "take steps to correct the conditions that led to the removal of the child from their home * * *. [T]he planning requirement also obligates parents to project a future course of action, taking into account considerations of how the child will be supported financially, physically and emotionally.” (Matter of Leon RR, 48 NY2d 117, 125.)

Where the focus of the inquiry is whether respondents have taken steps to correct the conditions that led to the removal of the children from the home, it is first necessary to ascertain what those conditions were. For this limited purpose, the prior neglect proceedings — summarized in the Family Court order of February 15, 1984 and in the Appellate Division dissent (112 AD2d 692, 693) — are relevant and instructive.

Nathaniel, now 12, was removed from the home August 3, 1978, and has lived in petitioner’s care more than seven years. The remaining four children (Andrew, 10; Angelique, 9; Heather, 7W, and Melissa, 6) — while removed and returned earlier — have lived in foster care since November 25, 1980. Between August 1978 and the present proceeding commenced five years later, four neglect petitions were filed, alleging filth, excessive corporal punishment, inadequate supervision and that the children had been locked in their rooms. While respondents had agreed to participate in various programs, avoid physical abuse and properly supervise the children, in November 1980 Family Court ordered removal to avoid a danger of immediate, serious injury to the children, the court finding further evidence of abuse and inability of respondents to control themselves or the children, failure to attend the agreed programs, poor judgment in caring for the children, and the existence of a lock still on the outside of a child’s bedroom (with the bed sheets of the five year old soiled). The dispositional order in the neglect proceeding recited in part that Andrew had been "diagnosed as suffering from undersocialized aggressive conduct disorder and attention deficit disorder,” and "respondents cannot cope with the care of this child”; that there was testimony to the effect that "Angelique is aggressive toward animals and people; verbal; swears and has fears of being locked in her room,” and relates, among reasons for this behavior, "her father putting feces in her mouth as punishment; her mother hitting her legs if she didn’t walk fast enough”; and that Nathaniel, at 8V2, was described as "emotionally handicapped”, "not toilet-trained,” fearing his father and relating "stories told to him by his mother to the effect that he is half devil or half horse like his father.”

Given the nature of the conditions that led to removal of the children, it is apparent that the central issue here is whether respondents have genuinely taken steps toward recognizing their problems and changing their attitudes and patterns of behavior. Attendance at the myriad programs and visits arranged for respondents clearly does not signal the necessary change, nor does their desire for return of the children. Of singular importance in reaching a determination as to whether respondents have actually learned to accept responsibility and modify their behavior must be an evaluation of respondents’ own testimony, particularly their credibility, as well as the evidence of witnesses (professional and nonprofessional) who have dealt with them in the various programs and observed them and the children. In this it is obvious that Family Court had the best vantage point, and its findings must be accorded the greatest respect (Matter of Irene O., 38 NY2d 776, 777; see also, Matter of Ray A. M, 37 NY2d 619, 622-623). Moreover, both Law Guardians, court-appointed attorneys whose role was to protect and represent the interests of the children, have filed recommendations and briefs urging that these children have been permanently neglected and that parental rights should be terminated (see, Matter of Ray A. M„ 37 NY2d 619, 624, supra).

We agree with Family Court that the evidence clearly and convincingly showed that, despite petitioner’s diligent efforts to reunite this family, respondents took no effective steps to correct the conditions leading to removal or advance a realistic, feasible plan. While continually finding fault with or no need for various programs and personnel, respondents "gained no insight into their own behavior which had been so physically and emotionally damaging to the children and had required their removal.” (112 AD2d 692, 696.)

In the present circumstances, there is no occasion for remittal to the Appellate Division to determine whether termination of parental rights was in the children’s best interests (Family Ct Act § 631). Having reviewed the entire record, both Family Court decisions setting forth the special needs of the children, the recommendations of the Law Guardians, and bearing in mind that these unfortunate children — at least four of them emotionally handicapped — have lived in the limbo of foster care and litigation for more than seven years, we conclude that on the law a disposition other than termination of parental rights, freeing the children for adoption, would be reversible error.

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

Order reversed, etc.

       This consolidated proceeding involves two separate petitions. The first concerns only Nathaniel T. and the parental rights of his mother, Agnes T. The four younger children are the subject of the second petition, against their parents, Agnes and Kenneth T. One Law Guardian was appointed for Nathaniel, and one for the other children.


text:
    The People of the State of New York, Respondent, v Jamie Gomez, Also Known as Ronald Drost, Appellant.
    Argued February 11, 1986;
    decided March 25, 1986

      APPEARANCES OF COUNSEL

      Henry Winestine and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (James M. McGuire and Amy jane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s suppression motion was supported by an affirmation of defense counsel which, on the issue of standing to challenge the warrantless search, referred only to an allegation in the felony complaint that the evidence was found "in defendant’s apartment”; defendant alleged no present possessory interest in the apartment. Counsel’s reference was insufficient as a factual assertion that defendant had an expectation of privacy in the area searched (see, CPL 710.60 [1]), so as to require a hearing (see, CPL 710.60 [3]). Nor did defendant in his suppression motion contend, as he does now, that his failure to allege facts supporting standing was justified by a fear that such allegations would tend to incriminate him in Canada. Thus, the suppression court appropriately concluded that defendant’s suppression motion should be summarily denied.

Defendant next claims that his conviction of criminal possession of stolen property in the second degree should be reversed because the checks should have been assigned the nominal value of blank checks (which these were at the time of the theft) rather than the amounts on the checks at the time they were recovered, which exceeded $250 (Penal Law § 165.45 [1]). The objection of defense counsel, as part of his motion for a trial order of dismissal, that the People failed to establish a value exceeding $250, did not alert the Trial Judge to defendant’s present argument — that for the crime of possession value must be established at the time of the theft — so as to preserve the issue for our review (see, People v Dekle, 56 NY2d 835).

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

Order affirmed in a memorandum.


text:
    State of New York, Respondent, v Peerless Insurance Company, Appellant.
    Argued February 3, 1986;
    decided March 25, 1986

      APPEARANCES OF COUNSEL

      Frank L. Amoroso, David P. Franks, Gerald M. Smith, Arnold A. Secunda and Robert Nizewitz for appellant.

      Robert Abrams, Attorney-General (August L. Fietkau, Richard G. Liskov and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. It has long been settled in this State that absent either an express agreement in the surety bond or inquiry by the surety, a creditor has no duty to keep the surety informed of the debtor’s financial situation (Bostwick v Van Voorhis, 91 NY 353, 360-362; Howe Sewing Mach. Co. v Farrington, 82 NY 121, 126-127; Western N. Y. Life Ins. Co. v Clinton, 66 NY 326, 331; McKecknie v Ward, 58 NY 541, 553; Brown v Curtiss, 2 NY 225, 230; State Bank v McDonnell, 40 AD2d 905; Stagg Tool & Die Corp. v Weisman, 12 AD2d 99, 103, affd 10 NY2d 741). Rather, the surety bears the burden of making inquiries and informing itself of the relevant state of affairs of the party for whose conduct it has assumed responsibility (Bostwick v Van Voorhis, 91 NY 353, 360-361, supra; Western N. Y. Life Ins. Co. v Clinton, 66 NY 326, 331, supra; Brown v Curtiss, 2 NY 225, 230, supra).

Here, then, the State was not obliged to notify Peerless of Parkchester’s persistent failure to meet its financial obligations so as to allow Peerless to cancel the bonds by their terms or forbear from increasing the bonds’ face amounts. Nor was there a duty running from the State to Peerless such as would impose liability on the State for any negligence in continuing to sell tax stamps to Parkchester on credit and accepting uncertified checks as payment for the stamps after several previous checks had been returned for insufficient funds (Board of Supervisors v Otis, 62 NY 88, 92-93 ["The sureties are not discharged from their obligation by reason of any neglect or omission of duty by the (creditor), or any unfaithfulness or even malfeasance on (the creditor’s) part in (its) dealings with the principal in the bond”]). This is without regard to any statutory duty running from the State to the public (Looney v Hughes, 26 NY 514, 522; see, Board of Supervisors v Otis, 62 NY 88, 92-93, supra; People v Russell, 4 Wend 570).

Defendant misplaces reliance on cases holding that an insured under a fidelity bond must disclose known acts of dishonesty by the designated person (see, e.g., Atlantic & Pac. Tel. Co. v Barnes, 64 NY 385). The nature of a fidelity bond, in which an insurer agrees to indemnify the insured against loss resulting from the defalcation or negligence of an employee or other person holding a position of trust with the insured, is such that "[i]n demanding security for the honesty of the servant, [the insured] impliedly represents that to his knowledge [the servant] is not dishonest, and the application for security * * * is a 'holding of the servant forth to the sureties as a trustworthy person’ ” (Howe Sewing Mach. Co. v Farrington, 82 NY 121, 126, supra [quoting Smith v Bank of Scotland, 1 Dow’s Pari R 272]). As such, these holdings are simply variations of the rule that a guarantee induced by fraudulent misrepresentation or concealment of a material fact is void (see, Atlantic & Pac. Tel. Co. v Barnes, 64 NY 385, 387, supra).

Here, in approving the credit and performance bonds that Parkchester obtained from Peerless and thereafter permitting increases in their face amount, the State made no representations, expressed or implied, that it would not extend credit to Parkchester beyond the 30-day period provided in Tax Law article 20 or that it had faith in Parkchester’s financial ability. Further, there is no support in the record for the allegation that the State fraudulently concealed Parkchester’s financial condition. " 'Bald conclusory assertions * * * are not enough’ ” (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [quoting Kramer v Harris, 9 AD2d 282, 283]) to defeat a motion for summary judgment. Indeed, the insufficiency of Peerless’ claim of fraudulent concealment is made manifest by the fact that they never even inquired of the State about the financial status of Parkchester during the period that the bonds were in effect, thus demonstrating that there could not have been any reliance, an essential ingredient in a fraud claim.

The interpretation of the bonds, which were unambiguous and unconditional, presented only questions of law properly determined by the Appellate Division in granting the State’s motion for summary judgment (see, General Phoenix Corp. v Cabot, 300 NY 87).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anita Romano, as Commissioner of the Suffolk County Department of Social Services, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued February 13, 1986;
    decided March 25, 1986

      APPEARANCES OF COUNSEL

      Martin Bradley Ashare, County Attorney (Patrick J. Barton of counsel), for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein, Robert Hermann and Peter H Schiff of counsel), for Cesar A. Perales, as Commissioner of the New York State Department of Social Services, respondent.

      V. Michael Liccione for Michael J. Nassar, as Commissioner of the Oneida County Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (110 AD2d 1028).

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


text:
    In the Matter of John J. Tracy, Appellant, v State Liquor Authority, Respondent.
    Decided March 25, 1986

      APPEARANCES OF COUNSEL

      Charles A. Bradley for appellant.

      Gloria M. Dabiri and Michael J. Greenfield 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 (Matter of Harari Rest. Corp. v McLaughlin, 55 NY2d 730; Awrich Rest, v State Liq. Auth., 92 AD2d 925, affd 60 NY2d 645).

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


text:
    Anthony Barzaghi, Appellant, v Maislin Transport, Respondent.
    Decided March 25, 1986
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Assistant District Attorney Merri Bernstein, For a Search Warrant. Tom’s Associates, Inc., et al., Appellants; New York County District Attorney et al., Respondents.
    Submitted January 13, 1986;
    decided March 25, 1986
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from arises from a criminal proceeding and is not appealable (CPL 450.90; see, Matter of Santangello v People, 38 NY2d 536).


text:
    William R. Kenyon, as Guardian ad Litem of Jeffrey S. Bill, Respondent, v Marion V. Newton et al., Defendants, and Insurance Company of North America, Appellant. Marion V. Newton et al., Third-Party Plaintiff-Respondent, v Insurance Company of North America, Third-Party Defendant-Appellant.
    Submitted January 27, March 10, 1986;
    decided March 25, 1986
   Motion to dismiss plaintiffs cross appeal dismissed as academic in view of the stipulated withdrawal of the cross appeal.

On the court’s own motion, appeals taken as of right by New York Central Fire Insurance Co., Insurance Company of North America, and Marion V. Newton, also known as Marion V. Bill, from the November 15, 1985 order of the Appellate Division dismissed, without costs, upon the ground that the order appealed from does not finally determine the actions within the meaning of the Constitution.

Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.

Judge Hancock, Jr., taking no part.


text:
    Morgan Guaranty Trust Company of New York, Respondent, v Sheldon H. Solow, Doing Business as Solow Building Company, Appellant.
    Decided March 25, 1986
   Appeal pursuant to CPLR 5601 (d) from judgment of Supreme Court dated December 3, 1985 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division brought up for review does not "necessarily affect” the judgment appealed from within the meaning of CPLR 5601 (d).

Appeal from the order of the Appellate Division dated November 26, 1985 dismissed for nonfinality, without costs, by the Court of Appeals sua sponte, only insofar as it pertains to matters other than the confirmation of the arbitrators’ award (see, e.g., Merrill Lynch, Pierce, Fenner & Smith v Griesenheck, 21 NY2d 688).


text:
    Mr. Galvanized, Inc., Respondent, v B. S. Livingston & Co., Inc., et al., Defendants, and Royal Globe Insurance Co., Appellant.
    Decided March 25, 1986
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Sontag v Sontag, 66 NY2d 554; Le Mistral v Columbia Broadcasting Sys., 61 AD2d 491, appeal dismissed 46 NY2d 940; Cohen and Karger, Powers of the New York Court of Appeals § 21, at 92).

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

Judge Meyer taking no part.