text:
    In the Matter of Robert Thompson, Appellant, v City Manager of the City of Yonkers et al., Respondents.
    Argued September 4, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Morton N. Wekstein for appellant.

      Arthur J. Doran, Jr., Acting Corporation Counsel (Dara M. Kane of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 603).

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


source: Caselaw Access Project

license: Public Domain

text:
    James R. Moffatt, Appellant, v M. Hallstead Christ, as Comptroller of the County of Nassau, et al., Respondents.
    Argued September 9, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      James R. Moffatt, appellant pro se.

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division. (74 AD2d 635).

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


text:
    In the Matter of Thomas M. Monahan et al., Respondents, v William J. Murphy et al., Appellants.
    Submitted September 5, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Marvin I. Honig, County Attorney, for appellants.

      John E. Mirch for Thomas M. Monahan, respondent.

      Richard A. Hanft for Joseph G. Manupella, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (71 AD2d 92).

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


text:
    In the Matter of Police Conference of New York, Inc., et al., Respondents, v Municipal Police Training Council, Appellant.
    Argued September 5, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter Bienstock, Shirley Adelson Siegel, Barbara E. Levy, Myrna M. Martinez and Arnold D. Fleischer of counsel), for appellant.

      Arthur J. Harvey for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Special Term reinstated, with costs, on the reasoning of the dissenting memorandum of Mr. Justice Michael E. Sweeney at the Appellate Division, to which we add only that in adopting subdivision j of section 6000.1 [9 NYCRR 6000.1 (j)] of its regulations respondent has adopted such regulation as to height "as it deems necessary and proper” and has, therefore, conformed to its obligation under subdivision 2 of section 840 of the Executive Law.

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

Order reversed, with costs, and the judgment of Supreme Court, Albany County, reinstated in a memorandum.


text:
    I-T-E Imperial Corporation — Empire Division, Appellant, v Bankers Trust Company, Respondent, et al., Defendant.
    Argued September 8, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Jacob Fogelson and John T. Lowry for appellant.

      Jack H. Weiner and Charles Leeds for respondent.
   OPINION OF THE COURT

Memorandum.

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

Before us appellant argues that the legislative history of article 3-A of the Lien Law requires a reversal because the extensive quotation at page 547 of the 1958 Report of the Law Revision Commission from Gramatan-Sullivan, Inc. v Koslow (143 F Supp 641, affd 240 F2d 523, cert den 353 US 958) shows an intent to incorporate in the definition of “purchaser in good faith for value” as those words are used in subdivision 1 of section 72 of the Lien Law, the limitation that notice of facts sufficient to create a duty of inquiry bars purchaser in good faith status. The wording of the subdivision shows, however, that its purpose was to leave unaffected the negotiable instruments rules governing such status. With the adoption, effective September 27, 1964, of the Uniform Commercial Code, the concept of notice under article 3 (and by analogy under article 4 as well, cf. Uniform Commercial Code, § 4-209) has, as we have held in Chemical Bank of Rochester v Haskell (51 NY2d 85), been changed from an objective to a subjective standard, and that change must be deemed to have amended the Lien Law as well (1 McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 197, 370). Absent the right to rely on the "duty of inquiry” concept, plaintiffs claim that there is a triable issue concerning Bankers Trust’s status as a purchaser in good faith for value is wholly without basis, for the reasons stated in the Appellate Division memorandum (and see Uniform Commercial Code, § 4-208, subd [1], par [a]; subd [2]).

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

Order affirmed.

       “Nothing in this article affects the rights of a holder in due course of a negotiable instrument or of a purchaser in good faith for value and without notice that a transfer to him is a diversion of trust assets.”


text:
    In the Matter of Boris Schneeberg et al., Respondents, v New York State Board of Elections, Respondent, and Esther S. Axtell, Appellant.
    Argued October 7, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      John F. Haggerty and William Y. Crowell, III, for appellant.

      Terence P. O’Leary for Boris Schneeberg and others, respondents.

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

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the judgment of Special Term dismissing the proceeding reinstated.

. The proceeding seeks validation of the petition designating Matthew F. McHugh as Liberal Party candidate for Congress in the 27 th Congressional District. No question as to the timeliness of the proceeding has been raised. Petitioners’ attorney conceded on argument, however, that the petition was in fact invalid. Inasmuch as a petition to validate searches the record, and petitioners cannot establish the validity of the nominating petition, the proceeding must be dismissed.

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

Order reversed, without costs, and the judgment of Supreme Court, Albany County, reinstated in a memorandum.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v Public Service Commission of the State of New York, Respondent. Consolidated Edison Company of New York, Inc., Appellant, v Public Service Commission of the State of New York, Respondent.
    Decided October 9, 1980

      APPEARANCES OF COUNSEL

      Joseph D. Block and Peter Garam for appellant.

      Howard J. Read and Peter H. Schiff for respondent.
   OPINION OF THE COURT

On the court’s own motion, following remand by the Supreme Court of the United States, order reversed, with costs, and the matter remitted to Supreme Court, Albany County, for entry of judgment in favor of petitioner not inconsistent with the decision of the Supreme Court of the United States (Consolidated Edison Co. of N. Y. v Public Serv. Comm. of N. Y., 447 US 530).

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


text:
    In the Matter of Central Hudson Gas & Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Decided October 9, 1980

      APPEARANCES OF COUNSEL

      Telford Taylor, Walter A. Basserf Jr., and Davison W. Grant for appellant.

      Howard J. Read and Peter H. Schiif for respondent.
   OPINION OF THE COURT

On the court’s own motion, following remand by the Supreme Court of the United States, order reversed, with costs, and the matter remitted to Supreme Court, Albany County, for entry of judgment in favor of petitioner not inconsistent with the decisiqn of the Supreme Court of the United States (Central Hudson Gas & Elec. Corp. v Public Serv. Comm. of N. Y., 447 US 557).

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


text:
    In the Matter of Robert J. Gurney et al., Respondents, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Appellants.
    Argued September 4, 1980;
    decided October 9, 1980

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Michael F. Colligan and Shirley Adelson Siegel of counsel), for appellants.

      Robert J. Kaplan and Bernard E. Singer for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and the judgment of Supreme Court, Albany County, reinstated for reasons stated in the dissenting opinion by Mr. Justice Ellis J. Staley, Jr., at the Appellate Division (67 AD2d 303, 305-307).

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


text:
    In the Matter of David Berkowitz. Doris Johnsen, Respondent; Crime Victims Compensation Board, Appellant.
    Submitted August 25, 1980;
    decided October 9, 1980
   Motion for leave to appeal denied.

Judge Meyer taking no part.


text:
    In the Matter of Civil Service Employees Association, Inc., and Roy Alexander, Respondents, v Director of the Queens Children’s Psychiatric Center et al., Appellants.
    Submitted September 8, 1980;
    decided October 9, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. (See Matter of Camacho v Iafrate, 66 AD2d 799, mot for lv to app dsmd 46 NY2d 897.)


text:
    In the Matter of Civil Service Employees Association, Inc., and Louis Moore, Respondents, v Director of the Queens Children’s Psychiatric Center et al., Appellants.
    Submitted September 8, 1980;
    decided October 9, 1980
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. (See Matter of Camacho v Iafrate, 66 AD2d 799, mot for lv to app dsmd 46 NY2d 897.)


text:
    Leonard R. De Roche et al., Appellants-Respondents, v J. David Dame et al., Respondents-Appellants.
    Submitted August 25, 1980;
    decided October 9, 1980
   Motion and cross motion for leave to appeal dismissed, each upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals, § 40, p 161).


text:
    Hyman Greenspan, Appellant, v Marilyn Greenspan, Respondent.
    Submitted August 11, 1980;
    decided October 9, 1980
   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, §§ 43, 147).

Judge Meyer taking no part.


text:
    In the Matter of Jewish Child Care Association, on Behalf of Alice Daphne K., Respondent. Faye K. et al., Appellants. In the Matter of Jewish Child Care Association, on Behalf of Boaz Aharon K., Respondent. Faye K. et al., Appellants.
    Submitted September 22, 1980;
    decided October 9, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution and upon the further ground that this court has no authority to entertain an original action for damages. Motion for a stay, for permission to proceed as a poor person and for a calendar preference dismissed as academic.


text:
    Naomi G. Kaplan, Appellant, v Kenneth C. Kaplan, Respondent.
    Decided October 9, 1980
   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 "respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    Linda Sagan, Appellant, v Carl Sagan, Respondent.
    Submitted September 2, 1980;
    decided October 9, 1980
   Motion to strike appellant’s brief and to dismiss appeal denied.


text:
    In the Matter of Richard Schumate, Appellant, v Edward Hammock, as Chairman of the New York State Board of Parole, Respondent.
    Submitted September 2, 1980;
    decided October 9, 1980
   On the court’s own motion, appeal dismissed, without costs, upon the ground that ho substantial constitutional question is directly involved (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Hime Y., Alleged to be a Permanently Neglected Child. Jewish Child Care Association, Respondent; Elaine S. Y., Appellant.
    Submitted August 4, 1980;
    decided October 9, 1980
   Motion to dismiss the appeal denied.


text:
    Rochester Gas and Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Argued September 9, 1980;
    decided October 14, 1980

      APPEARANCES OF COUNSEL

      Richard N. George and William S. Andrews for appellant.

      Howard J. Read, Peter H. Schiff and Sigrid J. Hammond for respondent.
   OPINION OF THE COURT

Memorandum.

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

On this appeal, petitioner utility asserts that it has a First Amendment right to have its ratepayers bear the expense of certain informational advertising which the Public Service Commission has found to be unnecessary to the furnishing of utility services. We disagree.

There is no doubt that petitioner’s expressional activity is entitled to First Amendment protection (see, e.g., Central Hudson Gas & Elec. Corp. v Public Serv. Comm. of N. Y., 447 US 557). But the Public Service Commission in this case has imposed no restraint, direct or indirect, upon petitioner’s advertising or communications. Instead, the commission has merely refused to include a portion of petitioner’s informational advertising as an allowable expense, and determined that such costs should be paid by the utility shareholders. Thus, the PSC has ruled that the ratepayers should bear part, but not all, of the informational advertising costs. Petitioner claims, in essence, that it has a constitutional right to have the ratepayers defer the entire cost.

It is an accepted principle that, although the Constitution may provide a citizen the right to engage in a certain activity free of governmental restrictions, it places no general corresponding duty upon government to ensure the availability of all resources necessary to realize that freedom (see, e.g., Harris v McRae, 448 US 297, —— 48 USLW 4941, 4946-4947; Norwood v Harrison, 413 US 455, 462). Thus, the Public Service Commission is not obliged to allow the utility to charge ratepayers for all communications which the utility may choose to make. On this view of the case, it is unnecessary to address the contention, made by the commission, that inclusion of the entire cost of informational advertising as an allowable expense would violate the First Amendment rights of ratepayers (cf. Abood v Detroit Bd. of Educ., 431 US 209).

In response to petitioner’s remaining arguments, it is sufficient to note that a prime function of the commission, as a regulatory body, is to separate those costs which should be borne by ratepayers from those which are properly chargeable to shareholders. The commission has exercised that function here, ruling that informational advertising which serves to enhance the utility’s image and is not necessary to the rendition of utility services should not be included as an allowable expense. It cannot be said that this ruling is arbitrary, capricious or unsupported by substantial evidence (e.g., Matter of New York State Council of Retail Merchants v Public Serv. Comm. of State of N. Y., 45 NY2d 661, 671-672).

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

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


text:
    William M. Quigley, Respondent, v Thomas F. Roche, as Personnel Director of the New York City Civil Service Commission, et al., Appellants.
    Argued September 4, 1980;
    decided. October 14, 1980

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Ronald E. Sternberg and L. Kevin Sheridan of counsel), for appellant.

      John J. Turvey for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner commenced this article 78 proceeding seeking appointment to the position of Borough Foreman in the Department of Highways of the Transportation Administration of the City of New York, now the Department of Transportation. To qualify for this position one must pass a promotional examination and must have served permanently in the district foreman position for a total period of not less than one year prior to the date of promotion. Petitioner had successfully passed the examination and had served as district foreman for a period of nine months. However, before completing his one year of service as district foreman, he requested and received a demotion for personal reasons. Several years later petitioner asked to be reinstated to the eligible list, but his request was refused. Instead, he was appointed to the position of Acting Deputy Administrative Superintendent for Staten Island, and later to the position of acting administrative superintendent. Petitioner contends that both of these positions were higher on the administrative chain of command than is the position of district foreman, and as such they should be considered as satisfactory equivalent service for that position, thereby qualifying petitioner for the position he now seeks.

Even if we were to assume that the positions petitioner had been appointed to temporarily were higher on the administrative ladder than the position of district foreman, we do not think the concept of satisfactory equivalent service was properly applied by the Appellate Division. Satisfactory equivalent service traditionally has been applied where experience is required for eligibility to take an open competitive examination (see Matter of Murray v McNamara, 303 NY 140). However, the present appeal does not involve such a situation. Rather, it involves an experience requirement for a promotional appointment.

Subdivision 2 of section 61 of the Civil Service Law provides that no credit shall be granted in a promotional examination for out-of-title work. This policy is equally applicable to promotional appointments. To hold otherwise would effectively undermine the concept of promotion on the basis of merit and fitness, since supervisors could favor certain employees for promotion over others simply by assigning them to a title in an acting capacity. Accordingly, it was reasonable for respondent, in interpreting the applicable regulation, to determine that petitioner was not eligible for promotion to the position of borough foreman.

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

Order reversed, etc.


text:
    Marion Leudemann et al., Respondents, v Prudential Property and Casualty Insurance Company et al., Defendants and Third-Party Plaintiffs-Appellants. Douglas A. Quinn et al., Third-Party Defendants-Respondents. (And Another Action.)
    Argued September 5, 1980;
    decided October 14, 1980

      APPEARANCES OF COUNSEL

      Norman H. Dachs for appellant.

      Donald W. Leo for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, summary judgment granted to defendants and the certified question answered in the negative.

Under the terms of the insurance policy held by Marion Leudemann, her son, Richard, was covered for accidents while driving a "non-owned * * * private passenger automobile or trailer”. A private passenger automobile is defined in the policy as "a four wheel private passenger, station wagon or jeep type automobile”. Additionally, the policy separately defines a "utility automobile” as "an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan delivery or panel truck type not used for business or commercial purposes”. It is beyond question that vehicles classified as utility automobiles were not covered by the contract as private passenger automobiles. Defendant maintains that, insofar as the accident took place while Richard was driving a nonowned pickup truck, he was not covered by the terms of this policy.

We agree that the policy unambiguously limited coverage provided to relatives of the named insured. While the policy could have provided coverage without restriction as to vehicle type, as it did for accidents in which the named insured was the driver, the contract did not so provide. Under the facts of this case, a pickup truck is clearly a noncovered utility vehicle, and coverage should be denied.

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

Order reversed, etc.


text:
    In the Matter of County of Suffolk, Petitioner, v Greater New York Councils, Boy Scouts of America, Respondent-Appellant, and Queens Council Boy Scouts of America, Inc., et al., Appellants-Respondents.
    Argued September 4, 1980;
    decided October 14, 1980

      APPEARANCES OF COUNSEL

      Samuel S. Tripp for appellants-respondents.

      Thomas B. Gilchrist, Jr., and Alan M. Epstein for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division dated August 6, 1979, as amended November 26, 1979, should be modified to direct the modification of the Special Term judgment of May 8, 1978 by striking therefrom in the first decretal paragraph thereof the words "as Trustee” and by striking all of the second and third decretal paragraphs, and, as so modified, the order of the Appellate Division should be affirmed, without costs.

On the appeal by Queens County Council Boy Scouts of America, Inc., and Queens Boy Scout Sustaining Association, Inc., we agree that no trust or other enforceable obligation was created by the transfer to Greater New York Councils, Boy Scouts of America of bank accounts previously held by appellants and of the proceeds of sale of a camp previously held by appellant Sustaining Association, on condition that those funds "be invested in the Stimson tract [later Camp Kaufman] and additions thereto,” that condition in any event having been fulfilled.

On the cross appeal by Greater New York Councils, we disagree with the holding of the Appellate Division that the words of the Nagel bequest to Queens County Council (by it transferred to Greater .New York Councils) requires the implication of a trust. The only words of limitation in the bequest are "It is my wish that the proceeds of this gift to it shall be used for the improvement of Boy Scout Camps, or for the establishment of a new camp on Long Island for the benefit of Queens Council Boy Scouts, in memory of my husband, John Nagel, and my daughter, Jeanne Arline Nagel.” Determination of the textatrix’ intention is a question of law (Matter of Scott, 8 NY2d 419, 427). Not only is the bequest essentially precatory in nature ("It is my wish”), but as Special Term recognized it imposes no obligation that the camp once established be maintained "forever”. Here, there is no question that the bequest was used as a part of the funds required for the establishment of a new camp on Long Island which has been operated for some 16 years. Here, as in Lefkowitz v Cornell Univ. (35 AD2d 166, 171, affd oh opn at App Div 28 NY2d 876), "there is no clear expression of intent that the gift * * * was subject to the restriction that it be forever used” for the benefit of Queens Council Boy Scouts, as distinct from Boy Scouts generally.

In view of the disposition reached, the question of appellants’ standing has not been considered.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Acme Builders, Inc., Appellant, v Facilities Development Corporation, Respondent.
    Argued September 5, 1980;
    decided October 14,1980

      APPEARANCES OF COUNSEL

      Emanuel F. Abbate and Norman D. Alvy for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Trial Term, after considering the contract, accompanying documents and extrinsic evidence, found that plaintiff was required to paint the entire existing boiler room at the Woodbourne Rehabilitation Center. It cannot be said that this finding, affirmed by the Appellate Division, was erroneous as a matter of law.

There is no merit to plaintiff’s contention that as a matter of law the contract required the painting of only those areas of the boiler room disturbed by its construction work. The contract provided that the drawings would control over any contrary provisions in the written specifications, and the drawings indicated that the entire boiler room should be painted. In addition, the contract required that plaintiff raise any questions regarding the requirements of the job with the architects before submitting its bid for the project. Since plaintiff failed to do so, it was bound under the stated terms of the contract by the architects’ subsequent determination that the entire boiler room must be painted.

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

Order affirmed.


text:
    American Broadcasting Companies, Inc., Appellant-Respondent, v Warner Wolf et al., Respondents-Appellants.
    Decided October 14, 1980
   Cross appeals taken by CBS, Inc., and Warner Wolf dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from is one of affirmance, and not one of modification as contended by the cross appellants.


text:
    Shao Fen Chin, Individually and as Administrator of the Estate of Ke-Sein Chin, Deceased, Appellant, v St. Luke’s Hospital Center et al., Respondents.
    Decided October 14, 1980
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (CPLR 5601, subd [b], par 2).


text:
    In the Matter of Anthony T. Di Biase et al., Respondents, v Dominic J. Piscitelli, as Mayor and Chairman of the Board of Trustees of the Village of Westbury, et al., Respondents, and New York State Association for Retarded Children, Inc., Appellant.
    Decided October 14, 1980
   Appeal transferred by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, without costs, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Howdy Jones Construction Co., Inc., Respondent, v Park-law Realty, Inc., et al., Appellants.
    Submitted August 25, 1980;
    decided October 14, 1980
   Motion to dismiss appeal taken as of right denied (CPLR 5601, subd [a], par [iii]; Dalrymple v Shults Chevrolet, 39 NY2d 795, 796).


text:
    McCarty Material Fabricators, Respondent, v Midwest Industrial Truck, Appellant, and Wilson Sporting Goods, Respondent.
    Submitted September 15, 1980;
    decided October 14, 1980
   Motion for leave to appeal dismissed upon the ground that the supporting papers do not comply with section 500.9 (a) (2) of the Rules of Practice of the Court of Appeals [22 NYCRR 500.9 (a) (2)] (see Community School Bd. Dist. 6, Manhattan v Anker, 49 NY2d 997; Dellarata v International House of Pancakes, 46 NY2d 936; see, also, Reminder Notice to the Bar [April 29, 1980], 49 NY2d 998).


text:
    In the Matter of Stanley Harwood, as Commissioner of Elections of the County of Nassau, Respondent, v Isabel R. Dodd, as Commissioner of Elections of the County of Nassau, Appellant.
    Argued October 14, 1980;
    decided October 15, 1980

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Peter L. Pagones of counsel), for appellant.

      Allan L. Winick and Steven R. Schlesinger for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. We cannot say that the determination of the Appellate Division was erroneous as a matter of law.

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


text:
    In the Matter of George P. Pratt, Appellant, v James P. Melton, as Commissioner of the Department of Motor Vehicles of the State of New York, Respondent.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      James W. Roemer, Jr., Thomas C. Conway and Michael J. Smith for appellant.

      Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (72 AD2d 887).

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


text:
    The People of the State of New York, Respondent, v Thelma F. Etoll, Appellant.
    Argued September 10, 1980;
    decided October 16, 1980
    APPEARANCES OF COUNSEL

      Thomas J. Neidl and J. Raymond Fisher for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

At trial, two notebooks containing prostitution records were admitted into evidence against defendant. On this appeal defendant contends that these notebooks, which were seized by a police officer who was lawfully in her apartment for the purpose of executing an arrest warrant, should not have been admitted into evidence under the "plain view” doctrine because the incriminatory nature of this evidence was not "immediately apparent”. (See Coolidge v New Hampshire, 403 US 443, 466.) While we agree with defendant that the outward appearance of the notebooks in question was such that a police officer, no matter how expert, could not have recognized them as evidence of a crime, we must, nonetheless, affirm defendant’s conviction. Our review of the record leads us to conclude that the proof of defendant’s guilt is overwhelming and that there is no reasonable possibility that the trial court’s failure to suppress the notebooks in question might have contributed to defendant’s conviction. Thus, in our view, the error asserted is harmless beyond a reasonable doubt. (People v Crimmins, 36 NY2d 230.)

We have examined defendant’s remaining contentions and have found them to be without merit.

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

Order affirmed.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Jose Diaz, Appellant.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      Richard S. Candee for appellant.

      Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s refusal to permit defendant to offer certain testimony of a psychologist concerning defendant’s mental condition was a matter within the court’s discretion (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 398-399). Under the circumstances of this case, we cannot say that the court abused that discretion. The witness testified that he possessed a bachelor of arts degree in psychology and that he had some 27 years experience in the area of psychological testing. The trial court found him qualified to testify concerning the tests he administered to defendant, the results of those tests, and his opinion as to whether defendant was suffering from an extreme emotional disturbance at the time he was tested. It was not error, however, for the trial court to refuse to permit testimony regarding the interpretation of the tests as they applied to this defendant’s mental condition, since the witness’ expertise in interpretations of this nature had not been satisfactorily established. This is not to say that only a psychiatrist may testify in this regard. Rather, we merely hold that, under the circumstances present in this case, the Trial Judge did not abuse his discretion by refusing to permit the challenged testimony. Absent a finding by this court that the Trial Judge erred as a matter of law, a finding which we may not make in this case, there should be an affirmance.

Meyer, J.

(dissenting). Respectfully I dissent. The error of the Trial Judge was in refusing to permit the psychologist to testify concerning whether defendant was suffering from extreme emotional disturbance at the time he killed his paramour, notwithstanding uncontradicted testimony that the psychologist was trained in interpreting the tests he gave defendant and in drawing conclusions from the results of the tests and had been so trained constantly since his university training.

The Trial Judge, then, did not find the particular psychologist unqualified in the sense that he was insufficiently trained. Rather his ruling was predicated on the ground, repeated several times in the course of the direct examination of the psychologist, that the witness was not a psychiatrist and that the opinions sought could only be given by a psychiatrist.

Since section 60.55 of the Penal Law as amended, effective September 1, 1980 by chapter 548 of the Laws of 1980, removes any distinction between psychiatrists and psychologists as concerns testimony relating to a defense of lack of criminal responsibility, the error is not of moment with respect to future cases. If, however, the ruling was erroneous as a matter of the common law of evidence, defendant has been prejudiced in not being able to show in mitigation (Penal Law, §§ 125.20, 125.25) that he "acted under the influence of extreme emotional disturbance” at the time he caused his paramour’s death, and the error cannot be deemed harmless in light of the charge to the jury that it was defendant’s burden to prove the affirmative defense that he did act under such an influence at that time.

That it was, indeed, an error of law to refuse to állow a psychologist whose qualifications as a diagnostic psychologist were in no way questioned, simply because he was not trained as a psychiatrist, is the holding of the very case, People v Davis (62 Cal 2d 791), quoted from in the Appellate Division memorandum (70 AD2d 885, 886) affirming defendant’s murder, second conviction. Said Mr. Justice Traynor in that case, in reversing a conviction for error of the Trial Judge in refusing to allow a clinical psychologist to testify because he had no medical training and "a psychologist, as such, would not be qualified” (62 Cal 2d, at pp 799-801):

"Dr. Worthington was excused by the court because of his lack of medical training. The court ruled that only a medical doctor is qualified to testify as an expert on the issue of sanity. Defendant contends that this ruling was erroneous.
"A witness is qualified to testify about a matter calling for an expert opinion if his peculiar skill, training, or experience enable him to form an opinion that will be useful to the jury. (Code Civ. Proc., § 1870, subd. 9; Estate of Toomes, 54 Cal. 509, 514-515; Oakes v. Chapman, 158 Cal.App.2d 78, 83-84; McCormick, Evidence, § 13.) Although the determination of the qualification of a proffered witness is ordinarily within the discretion of the trial court (People v. Busch, 56 Cal.2d 868, 878; 2 Wigmore, Evidence (3d ed.) § 561), the standards used in the exercise of this discretion, like other questions of law, are subject to review. Recent cases considering the point have held that a qualified psychologist can testify concerning a defendant’s mental condition. (Jenkins v. United States, 307 F.2d 637, 643-646; Hidden v. Mutual Life Ins. Co., 217 F.2d 818, 821; People v. Hawthorne, 293 Mich. 15, 22-26; State v. Padilla, 66 N.M. 289, 297-299; Watson v. State, 161 Tex. Crim. 5, 8; cf. Carter v. State (Okla. Crim. App.) 376 P.2d 351, 359-360. But see Dobbs v. State, 191 Ark. 236, 239-242; cf. State v. Gibson, 15 N.J. 384, 391. See generally Lassen, The Psychologist as an Expert Witness, 50 A.B.A.J. 239; Louisell, The Psychologist in Today's Legal World, 39 Minn.L.Rev. 235; Scheflen, The Psychologist as a Witness, 32 Pa.B.A.Q. 329.) Many cases have also noted the use of psychologists in criminal cases without objection or comment. (E.g., People v. Busch, supra, 56 Cal.2d, at p. 875; People v. McNichol, 100 Cal.App.2d 554, 558; United States v. Chandler, 72 F.Supp. 230, 237; see also People v. Spigno, 156 Cal.App.2d 279, 288-291.)
"The defense attempted to prove through two psychologists that defendant was suffering from a temporary functional psychosis at the time of the crime that made him legally insane. The prosecution’s psychiatric experts denied that such a disability could exist. Without the psychologists, therefore, defendant could not establish an insanity defense. The alleged disability did not involve a matter of mental illness completely within the realm of a physician. A functional disorder is by definition nonorganic and without a biological cause. The trial court erred in ruling that only one with medical training could testify on the issue.”

While the courts have, as that quotation indicates, not been unanimous in allowing a psychologist to give an opinion on mental state, the present view heavily favors admissibility (see Qualification of nonmedical psychologist to testify as to mental condition or competency, Ann., 78 ALR2d 919, and later case service). That view also accords with our statement in People v Rice (159 NY 400, 410) that "if a man be in reality an expert upon any given subject belonging to the domain of medicine, his opinion may be received by the court, although he is not licensed to practice medicine,” and with the legislative recognition in CPL 730.10 (subd 8) and CPL 730.20 (subd 1) of a "certified psychologist” as an authorized "psychiatric examiner” qualified to give an opinion on whether a defendant is an "incapacitated person” and on whether he is competent to stand trial.

Defendant has been sentenced to a term of 15 years to life for second degree murder, whereas for manslaughter in the first degree, a class B felony, his maximum sentence would be 25 years, with a minimum if fixed by the court of not more than one third of the maximum. There should be a reversal and a new trial.

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

Order affirmed in a memorandum.

       The Appellate Division’s statement that the psychologist was found "to be deficient in the areas which are required to give reliable opinions concerning the results of these tests in relation to defendant’s performance” (70 AD2d, at p 886) is wholly unsupported by the record if "deficient” is read to mean anything more than that the witness was not a psychiatrist.


text:
    The People of the State of New York, Respondent, v Robert Friscia, Appellant.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      Joseph M. Ingarra for appellant.

      Michael Kavanagh, District Attorney (Susan Shaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant seeks a reversal of his conviction on the ground that he was denied his right to a speedy trial. To the extent that his motion for dismissal of the indictment was based on the failure of the People to be ready for trial in conformity with the prescriptions of CPL 30.30, his plea of guilty operated as a waiver of his statutory right to any dismissal (People v Brothers, 50 NY2d 413, 418). Even in the absence of a waiver, the Appellate Division was warranted in concluding that the period of time to be excluded in consequence of the plea bargaining arrangement extended into December, 1977, thereby reducing the period of the People’s delay in being ready for trial to less than the statutorily prescribed six months.

As to defendant’s claim that he was denied his constitutional right to a speedy trial (CPL 30.20), the proof, which shows a total elapsed time of a few days more than a year, during no part of which was he incarcerated, and seven months of which, it has been found, are attributable not to the People but to defendant’s participation in the plea bargaining arrangement, falls far short of demonstrating constitutional deprivation (People v Taranovich, 37 NY2d 442).

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

Order affirmed in a memorandum.


text:
    In the Matter of Richjen Restaurant, Inc., Appellant, v State Liquor Authority, Respondent.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      Michael Linn for appellant.

      Leslie W. Tribby, Warren B. Pesetsky and Robert Conciatori for respondent.
   OPINION OF THE COURT

Memorandum.

Petitioner, Richjen Restaurant Corporation, operated an establishment for the on-premises consumption of liquor in New York City pursuant to licenses granted by the respondent, State Liquor Authority. The business was managed during the relevant time by Richard Jenkins, an officer, director and stockholder of petitioner. On March 2, 1978 the authority initiated a proceeding to revoke petitioner’s license based on two charges: that petitioner had suffered or permitted trafficking of narcotics in the licensed premises on March 19, 1977, and that petitioner had suffered or permitted the premises to become disorderly by maintenance in the premises of a loaded shotgun. Both incidents allegedly constituted violations of subdivision 6 of section 106 of the Alcoholic Beverage Control Law. The authority also served petitioner with a notice of contemplated recall based on several specifications which included the two charges involved in the revocation proceeding.

A revocation hearing was held, after which the hearing officer sustained both charges. With regard to the drug trafficking incident, he found that during a time when the licensee was not present in the premises, a patron made three separate sales of cocaine by removing tinfoil packets from a black pouch resting on the bar. It was found that these transactions were "open * * * in full view of the bartender” and that "either the bartender was then in charge of the premises or * * * the premises was then unsupervised.” As to the second charge, the hearing officer found that a loaded shotgun had been kept on the premises and that Richard Jenkins’ father owned the gun and had a permit for it. It was noted by the hearing officer, however, that it is unlawful to possess a loaded shotgun in public within the City of New York. Based on these findings, which were accepted by the authority, the petitioner’s license was suspended for 10 days on the second charge (for the loaded shotgun) and canceled on the first charge (narcotics trafficking).

After the conclusion of the revocation proceeding, the authority immediately commenced the nonrenewal or recall proceeding and, relying on the cited specifications, recalled the petitioner’s license which had been renewed pending completion of the revocation proceeding. The Appellate Division unanimously confirmed both determinations and petitioner now appeals pursuant to leave granted by this court. There should be a modification.

We agree that substantial evidence supported the 10-day suspension based on the shotgun incidént, since the testimony at the hearing indicates that the shotgun had been constantly on the premises for at least one year before the drug arrest, The authority reasonably could conclude that petitioner’s principal, Richard Jenkins, must have known of the illegal presence of the weapon, which when seized was in plain view. However, we hold that there was not substantial evidence to support the finding that petitioner suffered or permitted narcotics trafficking on the premises. There was no evidence that Richard Jenkins knew, or should have known of the specified transactions, nor was there any evidence that the bartender was a manager or corporate principal, the activities of whom could be imputed to the corporate licensee (Matter of Triple S Tavern v New York State Liq. Auth., 31 NY2d 1006; see Matter of Martin v State Liq. Auth., 41 NY2d 78). Furthermore, because it is not clear to what extent respondent relied upon that charge in the nonrenewal application, the confirmance of the determination not to renew petitioner’s license must be reconsidered.

Accordingly, the judgment of the Appellate Division should be modified by limiting the punishment imposed to the 10-day suspension only, and by remitting the matter to Supreme Court, New York County, with directions to remit to the State Liquor Authority for reconsideration, in accordance with this memorandum, of petitioner’s application for renewal, and, as so modified, affirmed, with costs to petitioner.

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

Judgment modified, with costs to petitioner, and the matter remitted to Supreme Court, New York County, with directions to remand to the State Liquor Authority for further proceedings in accordance with the memorandum herein, and, as so modified, affirmed.


text:
    In the Matter of Gloria Davis, Respondent, v Anthony Sadowski et al., Constituting the Board of Elections of the City of New York, Respondents, and Estella B. Diggs, Appellant.
    Argued October 15, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      John C. Klotz for appellant.

      Philip B. Stone for respondents.
   OPINION OF THE COURT

Order affirmed, without costs. We cannot say that the determination of the Appellate Division was erroneous as a matter of law.

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


text:
    Leon J. Greenspan, as Parent and Natural Guardian of David Greenspan, Appellant, v Arthur P. Antin et al., Respondents.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      Leon J. Greenspan, appellant pro se.

      Peter J. Mutino for respondents.
   OPINION OF THE COURT

Memorandum.

In the light of the son’s ready admission of his departure from the rules, and for reasons stated in the memorandum at the Appellate Division, the order appealed from should be affirmed.

We add that, -our holding does not turn on whether the action, as it was denominated by the appellant, is one for a declaratory judgment, or whether, as converted by the Appellate Division, it is to be treated as an article 78 proceeding. It is, therefore, not necessary to deal with this procedural aspect of the case.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert E. Helm, Appellant.
    Argued September 10, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      F. Stanton Ackerman for appellant.

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

Memorandum.

The order_of the Appellate Division should be affirmed.

The notice given orally and in writing to defendant’s assigned counsel sufficiently complied with the State’s statutory obligation under CPL 190.50 (subd 5). Counsel having discussed with defendant the matter of appearance before the Grand Jury in relation to the superseding indictment and having advised against it, as defendant conceded, there was at most a misunderstanding between them. Such being the case, it cannot be said that assigned counsel acted ineffectively in informing the Assistant District Attorney that defendant would not appear.

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

Order affirmed in a memorandum.


author: Jasen, J. Jones, J.

text:
    In the Matter of Greta E. Brewer, Appellant, v Board of Education of Plainview-Old Bethpage Central School District et al., Respondents.
    Argued September 9, 1980;
    decided October 16, 1980

      APPEARANCES OF COUNSEL

      Stanley A. Immerman and Irving Perlman for appellant.

      Gregory J. Guercio for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, who had been employed as a junior high school language teacher, lost her job in 1976, when her position was abolished. In accordance with subdivision 3 of section 2510 of the Education Law, petitioner’s name was promptly placed upon a "preferred eligible list”, entitling her to reinstatement in the event that a "vacancy” occurred "in an office or position similar to the one which [she previously] filled”. As a "preferred eligible”, petitioner had a right to be appointed to fill the next available "vacancy”, provided that there were no other teachers on the "preferred eligible list” with similar teaching experience who had greater "length of service in the system” prior to having been terminated (see Education Law, § 2510, subd 3).

An opening occurred in the junior high school language department, in which petitioner had previously served, in September of 1977, when one of the teachers within that department decided to take a temporary leave of absence. Despite petitioner’s status as a "preferred eligible”, the school district bypassed petitioner and offered the open position to a Ms. Griffith, who had been employed within the district since 1958. Ms. Griffith had taught foreign languages, primarily in the district’s senior high school, until 1975, at which time she accepted a provisional appointment as department chairperson. She was forced to vacate that position in 1977, however, presumably as a result of her inability to obtain the necessary certification.

Contrary to the arguments advanced by respondents, we are unable to conclude that Ms. Griffith was entitled to be appointed to the open position as a consequence of her senior status on the “preferred eligible list”. Subdivision 3 of section 2510 of the Education Law, which mandates the creation of a “preferred eligible list”, expressly provides that such lists are reserved for those whose positions have been abolished or consolidated with another position. The purpose of the statute is to provide a mandatory preference in rehiring for those unfortunate school employees who lose their positions through the practice of “excessing”. Were' we to permit school districts to place on the “preferred eligible list” individuals such as Ms. Griffith, who lost her position for reasons other than “abolishment” or “consolidation”, we would effectively be diluting the preference that the Legislature intended to confer upon “ex-cessed” employees. A contrary conclusion would frustrate the clear language as well as the evident purpose of subdivision 3 of section 2510, and we thus hold that the “preferred eligible” status contemplated by that statute is available only to school employees whose former positions have been abolished or consolidated.

We recognize, as did the Appellate Division, that school employees such as Ms. Griffith may be somewhat hesitant to accept provisional promotions if they know that they will not be given preferred access to vacancies in their former tenure areas in the event that their provisional appointments are terminated. That this potential difficulty exists, however, does not furnish a sound basis for disrupting the operation of a legislative measure that was designed specifically to protect “excessed” school employees. A solution to the problem identified by the Appellate Division, if indeed such a problem exists, must come directly from the Legislature in the form of a separate enactment. We may not, under the guise of our judicial authority to interpret legislation, permit school districts to utilize subdivision 3 of section 2510 to benefit a class of employees not contemplated by that statute at the expense of those employees who were clearly the intended beneficiaries of the measure.

We are also aware that the Commissioner of the Department of Education has taken the position that employees who have lost their jobs for reasons other than “excessing” may avail themselves of the “preferred eligible lists” mandated by subdivision 3 of section 2510 (Matter of Fitzgibbons, 8 Ed Dept Rep 205, 208). Inasmuch as the commissioner’s view in this matter "runs counter to the clear wording of [the] statutory provision”, however, "it should not be accorded any weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Our analysis, however, cannot end with this conclusion, for the preferential rights conferred by subdivision 3 of section 2510 upon "excessed” school personnel are triggered only when a "vacancy” arises "in an office or position similar to the one” previously occupied. If the open position in question in this case cannot be considered a "vacancy” within the meaning of the statute, it would necessarily follow that petitioner’s status as a "preferred eligible” was of no significance, and the school district was privileged to fill the open position by appointing an employee such as Griffith, who was not qualified for the "preferred eligible list”.

The Legislature has provided no definition of the term "vacancy” as it is used in subdivision 3 of section 2510, and there are few, if any, judicial decisions which elucidate the meaning of that term. Under the circumstances of this case, however, we think it fair to conclude that the position at issue was not "vacant” within the meaning of the statute. The term "vacancy” when used in this context connotes a position or office for which there is no incumbent. Viewed in this light, it is evident that the term does not encompass a position that is temporarily open because the present incumbent has taken a short-term leave of absence. Indeed, it would be somewhat anomalous to treat a position as though it were "vacant” when there exists an incumbent who has a clear right to reclaim the position upon return from his leave.

In short, we conclude that the teaching position which petitioner seeks was not a "vacancy” within the coverage of subdivision 3 of section 2510 of the Education Law. Accordingly, her rights under that provision were not violated when the school district ignored her status as a "preferred eligible” and appointed Ms. Griffith as a "regular substitute” to fill the opening. Inasmuch as petitioner’s claim for relief was predicated solely upon her rights under subdivision 3 of section 2510, her petition was properly dismissed.

Jasen, J.

(concurring). While I agree with the result reached by the majority, I do so for the reasons stated in the opinion at the Appellate Division.

By its decision today, this court has abolished an interpretation given to section 2510 of the Education Law by the Commissioner of Education. On more than one occasion, the commissioner has stated that where a "teacher’s service in [a] new [tenure] area is terminated during [a] new probationary period, he is entitled to be placed on a preferred eligible list and to be reappointed on tenure in the area where he originally acquired tenure as soon as a vacancy occurs in that area.” (Matter of Fitzgibbons, 8 Ed Dept Rep 205, 208.) Such a practice sought to encourage qualified teachers to seek promotions without the fear of losing their tenure in their previous area should they fail to achieve permanent certification in their new positions for reasons unrelated to their ability to teach. The majority does away with this commendable practice which previously had been sanctioned by the Commissioner of Education without even affording the commissioner an opportunity to be heard.

Moreover, I cannot agree with the majority that where, as here, a teacher takes a sabbatical leave for one year, a "vacancy” is not created within the coverage of subdivision 3 of section 2510 of the Education Law. While no definition of the term "vacancy” is specifically provided by statute, I believe the majority overly restricts the definition of the term by excluding openings in regular substitute positions from the protection afforded by the Education Law. Section 2510 is designed to ensure that tenured teachers whose positions have been terminated will be reassigned to other positions for which they are qualified as vacancies occur.

In my view, the statute was intended to apply to temporary as well as permanent position vacancies. It does not distinguish between a temporary position vacancy created as a result of a sabbatical leave for a lengthy period of time and a permanent position vacancy brought about by death, resignation or removal. All that the statute requires is that a "vacancy” occur. Therefore, the duration of the vacancy is not in and of itself determinative of the applicability of section 2510.

This is not to say that a temporary indefinite absence of short duration — for example, a day or week due to illness or personal leave — should necessarily be considered a vacancy within the meaning of the statute. However, where, as here, an opening arises due to a prearranged sabbatical leave for a significant period of time, it should be considered a "vacancy” and should be filled by a tenured teacher pursuant to subdivision 3 of section 2510. To exclude reassignment to such a person merely because an incumbent will at some fixed future time return to that position is, I believe, an unduly restrictive view, contrary to the spirit of the statute.

Jones, J.

(concurring). I agree that there should be an affirmance, but on the limited ground that in this case there was no vacancy within the meaning of subdivision 3 of section 2510 of the Education Law to give rise to the application of that subdivision. I reach that conclusion for precisely the reasons articulated in the majority opinion.

Inasmuch as this appeal can properly be disposed of on the ground that no vacancy existed to trigger the application of subdivision 3 of section 2510, I perceive no necessity to address the further question as to whether the benefits of that subdivision extend to individuals who have lost their position for reasons other than abolition or consolidation of the position. The Commissioner of Education, charged with responsibility for administration of this and related statutory provisions, expressly held in 1969 that the benefits of the statute were not restricted to instances where a position was abolished or consolidated (Matter of Fitzgibbons, 8 Ed Dept Rep 205). This construction has subsequently been followed by him.

Although I must confess to some doubt as to whether the commissioner’s construction is not erroneous in view of the language of subdivision 3, I think it inappropriate and unwise categorically to reject the commissioner’s construction of the statute in a case in which we have not had the benefit of an exposition of the commissioner’s position and it is not necessary to reach the issue to resolve the case. Not only are we unacquainted with the reasoning which lies behind the commissioner’s determination, but we have no measure of the outstanding instances in which boards of education, teachers and others may have acted in good faith reliance on the rulings or guidance of the commissioner. We have no way of knowing what ripple effects our decision may occasion. The circumstance that the parties may have vigorously contested the issue in their arguments made to us in no way obligates us in the circumstances of this case to indulge in the resolution of a question that it is not only unnecessary but unwise for us to reach.

Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur in memorandum; Judges Jasen and Jones concur in separate concurring opinions.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Gregory Diaz, Appellant.
    Submitted October 6, 1980;
    decided October 16, 1980
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that appellant is not presently available to obey the mandate of the court in the event of an affirmance (see People v Genet, 59 NY 80; People v Del Rio, 14 NY2d 165; People v Sullivan, 28 NY2d 900).


text:
    In the Matter of the Arbitration between Dobbs Ferry Union Free School District, Appellant, and Dobbs Ferry United Teachers et al., Respondents.
    Submitted September 8, 1980;
    decided October 16, 1980
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Brooklyn Hosp. v Lennon, 45 NY2d 820; Panico v Young, 46 NY2d 847).


text:
    Priscilla R. Haskins, Appellant-Respondent, v Loeb Rhoades & Co., Respondent-Appellant.
    Submitted September 8, 1980;
    decided October 16, 1980
   Motion to dismiss plaintiffs appeal denied. On the court’s own motion, cross appeal by defendant dismissed, without costs, upon the ground that defendant is not a party aggrieved (CPLR 5511).


text:
    Plantech Housing, Inc., Appellant, v Kevin Conlan, as Assessor of the Town of Chester, et al., Respondents.
    Decided October 16, 1980
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution (CPLR 5601, subd [a]).


text:
    In the Matter of Lou Wein, Also Known as Louis P. Wein, Appellant, v Louise Thomas et al., and Francis X. Gargiulo et al., Constituting the Board of Elections of the City of New York, Respondents.
    Submitted October 17, 1980;
    decided October 17, 1980

      APPEARANCES OF COUNSEL

      John A. Gussow for appellant.

      Paschal A. Corbo for respondents.
   OPINION OF THE COURT

Order affirmed, without costs. We cannot say that the determination of the Appellate Division was erroneous as a matter of law.

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


text:
    The People of the State of New York, Respondent, v Rudolph Harmon, Jr., Appellant.
    Argued September 9, 1980;
    decided October 21, 1980

      APPEARANCES OF COUNSEL

      Harold I. Guberman for appellant.

      Eugene Gold, District Attorney (Lois M. Raff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The hearing court found that the arresting officers had probable cause to believe that a crime had been committed and to link defendant to its commission. This finding was affirmed at the Appellate Division, and we cannot say that it was erroneous as a matter of law.

Nor do we find merit to defendant’s other contention that his station house identification was so tainted as to require its suppression as well as suppression of any later in-court identification. The hearing court determined that defendant’s "constitutional and civil rights were not in any way violated”. This conclusion, similarly affirmed at the Appellate Division, was not erroneous as a matter of law.

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

Order affirmed in a memorandum.


text:
    Eximetals Corporation, Plaintiff, v Pinheiro Guimaraes, S. A., et al., Defendants, Bank Leumi Trust Company of New York, Respondent, and Banco Do Nordeste Do Brasil, S. A., Appellant. (And a Third-Party Action.) Eximetals Corporation, Plaintiff, v Pinheiro Guimaraes, S. A., et al., Defendants, Israel Discount Bank, Respondent, and Banco Do Nordeste Do Brasil et al., Appellants. (And a Third-Party Action.)
    Argued September 3, 1980;
    decided October 21, 1980

      APPEARANCES OF COUNSEL

      Franz S. Leichter and Stephen M. Harnik for appellants.

      Laurence Shiff for Eximetals Corporation, plaintiff.

      Mark Abramowitz and Aurora Cassirer for Bank Leumi Trust Company of New York, respondent.

      Steven J. Stein, David Aronson and Marianne Stecich for Israel Discount Bank, respondent.
   OPINION OF THE COURT

In each case: On the court’s own motion, the September 16, 1980 decision to dismiss is vacated, the appellants having accepted this court’s invitation to seek correction of the jurisdictional defect by obtaining leave to appeal from the Appellate Division on a certified question, and the following decision is substituted therefor: Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 526) and the question certified answered in the affirmative.

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


text:
    Edward J. Kirk et al., Appellants, v Victor Bahou, as President of the Civil Service Commission of the State of New York, et al., Respondents.
    Argued October 15, 1980;
    decided October 21, 1980

      APPEARANCES OF COUNSEL

      Ivan M. Dochter and Joel L. Hecker for appellants.

      Robert Abrams, Attorney-General (Carl E. Stephan and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 770).

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


text:
    The People of the State of New York, Respondent, v Paul Bamberg, Appellant.
    Argued September 5, 1980;
    decided October 21, 1980

      APPEARANCES OF COUNSEL

      John D. B. Lewis and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Cynthia Kean of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue as framed by defendant is whether he has been denied due process by the failure of the hearing Judge to make an explicit finding that the in-court identification of defendant had been shown by clear and convincing evidence not to have been tainted.

It cannot be said that the absence of an explicit finding on in-court identification at trial denied defendant due process. As Chief Judge Desmond held in People v Alfinito (16 NY2d 181, 186), involving suppression in another context, there is "no strict rule of law that a decision on such a motion must always be accompanied by express findings. In many instances such as the present one the issue is so narrow that granting or denying the motion sufficiently implies the findings.” This is even more the case here, because the record includes a profuse recital of facts and reasoning demonstrating a finding of independent basis. Although it would have been preferable for the hearing court to have more clearly articulated its determination on this issue, it did find independent basis. It is thus unnecessary to reach other issues.

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

Order affirmed in a memorandum.

       Nevertheless, the better practice is for the hearing Judge to make findings on in-court identification in every case, even if he finds all pretrial identification not tainted, for doing so will avoid the necessity for remand for a further hearing should an appellate court disagree with the hearing Judge on one or more of the pretrial confrontations (Sobel, Eyewitness Identification: Legal and Practical Problems, §§ 10, 68, 83.03).


author: Fuchsberg, J.

text:
    Bethlehem Steel Corporation, Appellant-Respondent, v Sheldon H. Solow, Individually and Doing Business as Solovieff Realty Co. and as Solow Realty Co., et al., Respondents-Appellants.
    Argued September 8, 1980;
    decided October 21, 1980

      APPEARANCES OF COUNSEL

      James H. Reidy and Howard A. Feldman for appellant-respondent.

      Owen McGivern, Frank S. Ioppolo, Allan R. Freedman and Ronald L. Cohen for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to the plaintiff, by (1) deleting therefrom so much thereof as modified the Supreme Court, New York County, order of January 9, 1979 by reducing the amount of the judgment ordered to $597,767.64 and reinstating in lieu thereof the first ordering paragraph of said order of January 9, 1979, and (2) reversing so much thereof as affirmed denial of that part of plaintiff’s motion which sought summary judgment dismissing the fourth counterclaim of defendant Sheldon H. Solow. The question certified is answered in the negative.

Plaintiff based its motion for summary judgment on the admission by Arthur Geller, an employee of Solow Development Corporation, that the work performed under the contract was of the agreed price and reasonable value of $8,831,060.66 plus $176,757.38 in extras, of which $7,910,050.40 had been paid (thus leaving a balance of $1,097,767.64. Defendants’ verified answer to the complaint denied performance, but set forth nothing more in support of that denial than that plaintiff had, as alleged in the counterclaims, caused delays in completion. Also submitted as part of defendants’ answering papers was an affidavit from Geller which sought to explain the admission, but alleged no facts establishing a failure of performance by plaintiff, nor did defendants’ papers set forth facts in support of the counterclaims.

Since the Geller admission established prima facie plaintiffs right to judgment, it was defendants’ obligation not only to rebut that prima facie showing but also to demonstrate the existence of a triable issue of ultimate fact by presenting proof in evidentiary form to show nonperformance (Indig v Finkelstein, 23 NY2d 728; see, also, Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255). Although defendants’ verified answer may be used as an affidavit (CPLR 105, subd [s]), that does not help defendants in this case for the answer sets forth no evidentiary facts.

In apparent recognition of the fact that it had not borne its burden of demonstrating its entitlement to judgment on the first three counterclaims (see Zuckerman v City of New York, 49 NY2d 557), plaintiff in this court asks dismissal of only the fourth counterclaim. As to that claim, made by Solow individually, it argues correctly that since the counterclaim is for improper performance of a contract to which Solow was not a party the counterclaim does not state a cause of action.

For the foregoing reasons plaintiff was entitled to summary judgment on its complaint and to dismissal of the fourth counterclaim.

Fuchsberg, J.

(dissenting in part and concurring in part). The contract out of which this controversy arises is one in which the plaintiff agreed to supply and to erect the structural steel for a 50-story office building which defendant Solow Development Corporation (SDC) was constructing. The price for these goods and services was to be determined according to a formula under which Bethlehem was to receive 22.7 cents per pound of steel necessarily used. By the time the fabrication was completed, Bethlehem had billed SDC for approximately $9,000,000. Of that sum, SDC paid about $8,000,000, withholding the balance, inter alia, because it was of the opinion that the quantity of steel delivered was less than the plaintiff averred. On this third attempt at summary judgment, first the Appellate Division by a vote of 3 to 2, and now this court, rely on one-word answers to two conclusory questions put to an SDC employee, Arthur Geller, during his 120-page examination before trial, as the basis for granting the plaintiff summary relief.

In my view, "upon all the papers and proof submitted”, which other than the so-called admissions of Geller were simply affidavits of attorneys without personal knowledge of the operative facts, the plaintiff has failed to establish its cause of action "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212, subd [b]). All the more is this so, since Geller, in his affidavit opposing summary judgment, after disclaiming any competence to judge whether the amount of steel the plaintiff maintained it had integrated into the building was correct, disavowed any intention to have admitted due performance during his deposition. Taken as a whole, the emanations from Geller leave the plaintiff with no more than an equivocal presentation from which a fact finder should have the opportunity to infer or fail to infer an admission.

Moreover, as the two dissenters at the Appellate Division, correctly it seems to me, pointed out, "We see no reason why in a claim for this large sum of money there could not be an affidavit by a responsible officer or employee of Bethlehem Steel Corporation stating that according to their records so much work was done, involving so many tons of steel at such- and-such a price, resulting in an over-all liability of so many dollars against which so much has been received, leaving a balance of so much owed”. In the same spirit, one must wonder why the plaintiff not only never responded to defendants’ deposition request for "the records, the tonnage that was kept, how you were able to ascertain how many tons or pounds you shipped, sold, and how you know they were actually incorporated in the billing”, but also failed to avail itself of such information as a resource to bolster its motion.

Consequently, plaintiff’s affirmative case should be subjected to exploration in a trial setting, where a fact-finding body, advantaged by seeing and hearing the witnesses in an open adversary setting, can, so to speak, see the whites of the parties’ eyes. To that end, the modification of the order of the Appellate Division should deny summary judgment to plaintiff on its cause of action in toto.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg dissents in part and concurs in part and votes to modify in an opinion.

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

      . For example, one of the deposition questions and answers reads, "Q. Am I correct in stating * * * that there is no dispute and that there is an admission that the agreed price and reasonable value of the work performed by Bethlehem under its contract agreement as alleged in paragraph 11 of the complaint was $8,831,060.66? A. Yes” (emphasis supplied). But in his affidavit he states, "my interpretation of the questions being asked was that Bethlehem’s counsel was asking if I knew that both plaintiff and defendants agreed as to the computation of the contract price”, and "At no time did I ever believe I was admitting that * * * such work as Bethlehem had performed was worth $8,831,060.66”.

      . Though not determinative, a trial is also appropriate on policy grounds since, as the record and briefs proclaim, this is a highly acrimonious litigation which, unfortunately, has been and continues to be characterized by accusations of misrepresentation of the legal and factual issues leveled by each side against the other. To boot, the defendants suggest that their right to discovery has suffered material frustration.


text:
    Eliahu Lipkis, Respondent, v Mario Pikus et al., Appellants.
    Argued October 14, 1980;
    decided October 21, 1980
   Appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution and in granting leave to appeal the Appellate Division did not certify the questions of law decisive of the correctness of its determination (CPLR 5713).


text:
    David Edwards, Appellant, v Citibank N. A., Respondent.
    Decided October 21, 1980
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par MX


text:
    Maxim Gershunoff, Appellant, v Valery Panov et al., Respondents.
    Submitted October 6, 1980;
    decided October 21, 1980
   Motion to dismiss the appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division is not in a "respect, which is within the power of the court of appeals to review” (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of the Arbitration between H. H. & F. E. Bean, Inc., Respondent, and J. A. Jones Construction Company, as Agent for Jos. Schlitz Brewing Company, Respondent; Jos. Schlitz Brewing Company, Appellant.
    Submitted September 29, 1980;
    decided October 21, 1980
   Motion, insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed an order of Supreme Court, dated December 21, 1979, denied. Motion, insofar as it seeks leave to appeal from an order of the Appellate Division which affirmed an order of Supreme Court, dated January 28, 1980, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to petitioner-respondent.


text:
    James Ilardi et al., Plaintiffs v Mark Bobley et al., Defendants. Grutman, Morrison & Schafrann, Appellant; Grutman & Schafrann, Respondent.
    Submitted August 4, 1980;
    decided October 21, 1980
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judges Fuchsberg and Meyer taking no part.


text:
    Myrna La Bow, Respondent, v Ronald La Bow, Appellant.
    Decided October 21, 1980
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved and upon the further ground that the order of the Appellate Division insofar as it affirmed the order of Supreme Court entered September 20, 1979, does not finally determine the action within the meaning of the Constitution.


text:
    Mary E. Philson, Appellant, v Arthur Philson, Respondent.
    Submitted September 29, 1980;
    decided October 21, 1980
   Motion, treated as a motion for leave to appeal pursuant to CPLR 5602 (subd [a], par 1, cl [ii]), denied.


text:
    Angela Amelio et al., Plaintiffs, v New York City Housing Authority, Defendant and Third-Party Plaintiff-Respondent. Boy’s Athletic League, Third-Party Defendant-Appellant; City of New York, Third-Party Defendant.
    Submitted October 6, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Nathan Cyperstein and Alvin P. Bluthman for third-party defendant-appellant.

      Clifford I. Bass for third-party plaintiff-respondent.
   OPINION OF THE COURT

Order affirmed, with costs. We cannot say as a matter of law that the interpretation given the lease by Special Term and the Appellate Division is incorrect.

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


text:
    In the Matter of Charles Miller et al., Appellants, v Frank Ward et al., Constituting the Zoning Board of Appeals of the Town of East Fishkill, Respondents.
    Argued October 6, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Arden H. Rathkopf and Daren A. Rathkopf for appellants.

      Ian G. MacDonald for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court.

We find no merit to the contention that in denying appellants’ application for a special permit to conduct soil mining the zoning board of appeals was precluded from considering evidence of the prospective inability of the applicant to comply with the operating standards prescribed in the zoning ordinance. There is evidence in the record to support the board’s determination that the elaborated standards of the ordinance had not been met in full, and there is no merit to appellants’ contention that the board’s decision was improperly based on material outside the record.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v William Rosario, Respondent.
    Submitted October 7, 1980;
    decided November 11, 1980
    APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Timothy G. O'Connor of counsel), for appellant.

      Freda S. Nisnewitz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. One Rafael Cruz and defendant were indicted together. At a pretrial hearing on Cruz’ motion to suppress an inculpatory statement allegedly made by him which also implicated defendant, Cruz testified and denied making the statement. Defendant’s attorney declined to cross-examine Cruz at the hearing. The court denied the suppression motion as well as defendant’s later motion for a severance. At the subsequent joint trial Cruz’ statement implicating defendant was admitted into evidence without redaction over the objection of defendant. Neither Cruz nor defendant took the witness stand. Defendant’s conviction on the verdict of the jury was reversed by the Appellate Division and a new trial granted on the ground that it was error, under the principles of Bruton v United States (391 US 123), to have admitted Cruz’ statement.

The opportunity for cross-examination at a pretrial suppression hearing does not satisfy a defendant’s constitutional right of confrontation (People v Berzups, 49 NY2d 417, 426). A fortiori is this so where, as here, the confessing codefendant denies making the alleged statement thereby removing all reason for cross-examination of the witness.

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

Order affirmed in a memorandum.


text:
    In the Matter of Trinity Place Company, Appellant, v Finance Administrator of the City of New York et al., Respondents.
    Argued October 9, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      John L. Diamond and Harry H. Chambers for appellant.

      Allen G. Schwartz, Corporation Counsel (Stanley Buchsbaum and Edith I. Spivack of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The issues in this case are factual. The determinations made at the Appellate Division conform to the weight of the evidence, and we perceive no error of law.

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

Order affirmed, with costs, in a memorandum.


text:
    Roger N. Brooks, Individually and as Executor of Ella M. Pease, Deceased, Appellant, v New York State Thruway Authority, Respondent. Robert F. Griffith, Jr., as Executor of Donald J. Pease, Deceased, Appellant, v New York State Thruway Authority, Respondent.
    (Claim No. 59820.)
    (Claim No. 59821.)
    Argued October 7, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Manley H. Thaler for appellants.

      Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The experts for both sides testified that the hole in the highway was neither of the size nor the depth to deflect the tire of the claimants’ vehicle. Nor was there evidence that striking the hole would produce any bump or condition which would cause the driver to lose control of the vehicle. The evidence was insufficient to establish a casual relationship between the State’s alleged negligence in failing to repair the pothole and the accident in this case. Although there was some testimony that the accident could have been caused by an attempt to avoid the pothole a conclusion that this had in fact occurred would be speculative on this record.

With this uncertainty as to causation, it must be concluded that the claimants have failed in their proof.

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

Order affirmed, with costs, in a memorandum.


text:
    Board of Education, Lakeland Central School District of Shrub Oak, Respondent, v Joseph Barni, as President of the Lakeland Federation of Teachers, Local 1760, American Federation of Teachers, AFL-CIO, Appellant.
    Argued October 8, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Nancy E. Hoffman, James R. Sander and Jeffrey S. Karp for appellant.

      Murray Steyer for respondent.
   OPINION OF THE COURT

Memorandum.

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

The provisions (art XVII, par b) of the collective bargaining agreement set forth certain procedures which the board agreed to follow when a vacancy exists in the district. After having notified the federation of a vacancy, each applicant on the staff was to receive an interview with the vacancy to be filled on the basis of the “experience, competency and qualifications of the applicant * * * and other relevant factors.” The grievant alleges that the board failed to follow these procedures.

Section 1 of article XXVII of the agreement defines a grievance as “a complaint by any teacher or group of teachers in the bargaining unit concerning an alleged misinterpretation or misapplication of an express provision of this Agreement.” Any unresolved grievance may be submitted to final and binding arbitration by the federation. The grievance filed is clearly a dispute for resolution by the arbitrator and it is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute (Board of Educ. v Barni, 49 NY2d 311; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669).

Nor should arbitration be stayed merely because the requested remedy, if granted, runs the risk of resulting in an impermissible assumption of the board’s supervisory responsibility, or, as is contended in this case, because it is feared that the arbitrator’s judgment would be improperly substituted for the subjective determination of an applicant’s qualification which is vested in the discretion of the superintendent (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411).

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

Order reversed, with costs, the demand for arbitration reinstated and the application for a stay of arbitration denied in a memorandum.


text:
    Esteban E. Cedano, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued October 6, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      J. Irwin Shapiro, Morris J. Eisen and Stephen Kruger for appellant.

      Allen G. Schwartz, Corporation Counsel (Bernard Abel and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and the case remitted to the Appellate Division, First Department, for exercise of that court’s discretion. In the circumstances present here it was improper for the Appellate Division to decide the issue presented as a matter of law.

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


text:
    The People of the State of New York, Respondent, v Augusto Ordonez, Appellant.
    Argued October 8, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and William E. Heller stein for appellant.

      Mario Merola, District Attorney (Allen H. Saperstein and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. It cannot be said that the Trial Judge abused his discretion in allowing cross-examination of defendant of the scope that he did, or that defendant has not had a fair trial.

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


text:
    In the Matter of Vera Vento et al., Appellants, v Jerome Prince et al., as Chairman and Members of the New York City Conciliation and Appeals Board, Respondents, and 400 Realty Co., Intervenor-Respondent.
    Submitted October 7, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Carol Ule for appellants.

      Ellis S. Franke and William E. Rosen for respondents.

      Robert S. Fougner for intervenor-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (73 AD2d 884).

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


text:
    Rose Cubito, Respondent, v Gerald Kreisberg, Individually and Doing Business as Daroe Realty, et al., Respondents, and Gindele & Johnson, Appellant, et al., Defendants.

      Argued October 7, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Andrew P. Davis and Richard T. Andrias for appellant.

      Benjamin J. Fried for Rose Cubito, respondent.

      Harold M. Foster, William F. McNulty and Anthony J. McNulty for Gerald Kreisberg and others, respondents.

      Norman Coplan for New York State Association of Architects, Inc., and others, amici curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice James D. Hopkins at the Appellate Division (69 AD2d 738). Question certified answered in the affirmative.

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


text:
    In the Matter of the Arbitration between Richard C. McKenna, Respondent, and County of Nassau Office of the County Attorney, Appellant.
    Argued October 8, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for appellant.

      Marc D. Matles for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 815).

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


text:
    Albert Competello, as Administrator of the Estate of Theresa Competello, Deceased, et al., Appellants, v Anthony Giordano, Respondent.
    Argued October 9, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Martin Edelman and Jerome Edelman for appellants.

      Norman Bard, Sandra Krevitsky and Lawrence Kanterman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs’ motion to strike the affirmative defense of lack of personal jurisdiction should be granted, and the certified question is answered in the negative. Defendant waived the affirmative defense of lack of personal jurisdiction by making a motion under CPLR 3211 (subd [a], par 7) without including his jurisdictional objection (CPLR 3211, subd [e]). Defendant’s assertion that the motion was a nullity for purposes of this provision because, pursuant to the rules of the Supreme Court of Kings County (22 NYCRR 752.11 [d]), the failure to submit the order constituted an abandonment of the motion, is without merit. The purpose of the waiver provision of CPLR 3211 (subd [e]) is to prevent the defendant from wasting both the “court’s or the plaintiff’s time on any 3211 motion on any ground at all unless on that motion he joins his jurisdictional ground” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:59, p 63). The legislative purpose of this provision may not be contravened by defendant’s self-serving act of failing to enter the order. Moreover, although defendant’s waiver of personal jurisdiction was not raised at Special Term, this court may consider the question on appeal because the issue is presented on the record, was raised at the Appellate Division and is conclusive (see Cohen and Karger, Powers of the New York Court Of Appeals, § 162).

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

Order reversed, etc.


text:
    Alfred Barnes et al., Appellants, v City of New York et al., Defendants, and Arthur Schwartz et al., Respondents.
    Argued October 9, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Ronald J. Koerner for appellants.

      Steven B. Prystowsky for respondents.
   OPINION OF THE COURT

Memorandum.

The question before the court is whether the Appellate Division erred as a matter of law in finding that the “due diligence” requirement of CPLR 308 (subd 4) had not been met. Expressed another way, the question is whether, on the facts before us, there was demonstrated due diligence as a matter of law.

We note in passing that we do not construe the determination at the Appellate Division as having laid down any hard rule of law. Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed. Viewing this case on its facts, we conclude there was no error of law, and the order should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


text:
    David J. Oakley, Appellant, v City of Rochester, Respondent.
    Argued October 6, 1980;
    decided November 11, 1980

      APPEARANCES OF COUNSEL

      Sidney K. Schoenwald and Samuel Klafter for appellant.

      Louis N. Kash, Corporation Counsel (Michael J. Looby of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff’s argument that there was consistency between the jury’s finding of probable cause on the false arrest cause of action and its finding that plaintiff had established malicious prosecution by defendant is at best speculative and ignores the Trial Judge’s explicit instructions to the jury concerning the events involved in the determination whether there was probable cause. We cannot say, therefore, that the Trial Judge abused his discretion in directing entry of judgment for defendant city on the malicious prosecution cause of action (see CPLR 4111, subd [c]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518, n 5; Kennard v Welded Tank & Constr. Co., 25 NY2d 324, 330).

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

Order affirmed, with costs, in a memorandum.


text:
    Flushing Savings Bank, Respondent, v A. H. Salkowitz, Appellant, et al., Defendants.

      Submitted September 15, 1980;
    decided November 11, 1980
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Wachtler taking no part.


text:
    In the Matter of Eugene Gold, as District Attorney of Kings County, Respondent, v Hugh F. McShane, as a Justice of the Supreme Court of the State of New York, Respondent. Gerry Gottlieb, Intervenor-Appellant.
    Submitted September 29, 1980;
    decided November 11, 1980
   Motion to dismiss the appeal herein granted and the appeal dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601).


text:
    In the Matter of Ernest A. Hunter, Appellant, v New York State Department of Civil Service et al., Respondents.
    Submitted October 20, 1980;
    decided November 11, 1980
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding and it is not “an order of the appellate division” within the meaning of CPLR 5602 (subd [a], par 2) (see Matter of Codd v McGuire, 46 NY2d 1036).


text:
    Polytemp, Inc., Respondent, v Daniel E. Sell, Appellant.
    Submitted October 20, 1980;
    decided November 11, 1980
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, pars [6], [7]; CPLR 5602).


text:
    Vermeer Committee for Fair Options et al., Appellants, v Gerald Guterman et al., Respondents.
    Submitted October 6, 1980;
    decided November 11, 1980
   Insofar as the order of the Appellate Division affirmed the order of Supreme Court denying plaintiffs’ motion for a preliminary injunction, motion for leave to appeal dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Insofar as the order of the Appellate Division affirmed the order of Supreme Court granting defendant Attorney-General’s motion to dismiss the complaint as against him, motion for leave to appeal denied. Twenty dollars costs and necessary reproduction disbursements to respondents filing multiple opposing papers.


text:
    In the Matter of George W. Miller, Appellant, v Geraldine Daniels et al., Respondents.
    Argued November 10, 1980;
    decided November 12, 1980

      APPEARANCES OF COUNSEL

      Fred L. Wallace, Jeff L. Greenup and Percy L. Lambert for appellant.

      Saul Rudes for Geraldine Daniels and others, respondents.

      Richard B. Cohen for Board of Elections of the City of New York, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Mr. Justice Israel Rubin at Supreme Court, New York County, the findings of that court having been affirmed by the Appellate Division.

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