text:
    In the Matter of Samuel E. L., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued November 15, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Christopher J. Jones, Rose H. Sconiers and Peter J. Martinelli for appellant.
    No appearance for respondent.
   OPINION OF THE COURT

Memorandum.

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

Even if the youth counselor’s testimony concerning an admission made by appellant should have been suppressed as elicited in violation of Miranda v Arizona (384 US 436), a question we need hot reach, the adjudication of delinquency should, nonetheless, be affirmed. We agree with the lower courts that the evidence, even without this admission, was sufficient to establish appellant’s guilt beyond a reasonable doubt. The Trial Judge explicitly stated that he reached the determination of guilt without reference to the youth counsel- or’s testimony, therefore, the admission of that testimony, even if in error, was harmless.

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

Order affirmed, without costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Richard Alfaro, Appellant.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Robert Abrams, Attorney-General (Richard A. Serafini of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s contention that the verdict is repugnant was not preserved at trial and therefore may not be considered on appeal.

As a general rule alleged errors must be raised at a time when they can be corrected at trial. Thus in jury cases any claim that the verdict is repugnant must be made before the jury is discharged (People v Satloff, 56 NY2d 745; People v Stahl, 53 NY2d 1048). This permits the court to resubmit the matter to the jury to obtain a consistent verdict, even if that may require changing an "acquittal”, on one or more counts, to a conviction (People v Salemmo, 38 NY2d 357; see also, People v Robinson, 45 NY2d 448).

In nonjury cases as here such an issue may be raised at a later stage by moving to set aside or modify the verdict pursuant to CPL 330.30 since the court, as trier of the facts as well as the law, is still available to correct repugnancies in the verdict if there be any. The statute specifically provides that the court may set aside or modify the verdict on any ground which would require reversal or modification as a matter of law by an appellate court (CPL 330.30 [1]). A claim that a verdict is repugnant, once properly preserved at trial, presents such an issue of law (People v Tucker, 55 NY2d 1). This distinguishes People v Carter (63 NY2d 530), on which the dissenters at the Appellate Division relied, because in that case there was no error of law or other statutory basis for the court to reconsider or set aside its verdict.

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

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


text:
    Oswald Wilson, Appellant, v Merrill Lynch, Pierce, Fenner & Smith, Inc., et al., Respondents. (And Another Action.)
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Kevin D. Moloney for appellant.

      Thomas J. Mullaney for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 807).

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


text:
    The People of the State of New York, Respondent, v John W. Koberstein, Sr., Appellant.
    Argued November 12, 1985;
    decided December 19, 1985

      APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender (Esther Cohen Lee of counsel), for appellant.

      Barry M. Donalty, District Attorney (Timothy P. Fitzgerald of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed (103 AD2d 1021).

CPL 300.10 (2) provides that upon a request of a defendant who does not testify in his own behalf, "but not otherwise”, the court must instruct the jury that no unfavorable inference may be drawn against the defendant because of his failure to testify. This rule prohibiting a "no inference” charge absent the defendant’s request applies to instructions given during the voir dire (see, People v Boyd, 53 NY2d 912, affg 74 AD2d 647). Thus, defense counsel’s questioning of prospective jurors concerning their reaction if defendant chooses not to testify provides no basis for discussion of the rule by the court (cf. People v McLucas, 15 NY2d 167, 171; People v Fitzgerald, 156 NY 253, 266). Should a venireman comment on the possible failure of the defendant to testify, the court need only instruct that the juror is bound by the law, which the court will state at the appropriate time, and inquire whether the juror can accept and apply the legal instructions as given. If the juror cannot follow the court’s instructions, then the court should excuse that juror for cause. Any further or more specific discussion of the "no inference” rule during voir dire is proper only if requested or consented to by defense counsel.

Notwithstanding the above, the court’s unrequested remarks during voir dire about defendant’s possible failure to testify in this case do not call for reversal. Unlike a denial of a request for a "no inference” charge, which is immune to harmless error analysis (see, People v Britt, 43 NY2d 111), giving the charge without request is subject to such analysis (see, People v Vereen, 45 NY2d 856). Because we conclude the court’s remarks were harmless in this case, there should be an affirmance.

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

Order affirmed in a memorandum.


text:
    Gerald Jacobson, Respondent, v Doris L. Sassower, Appellant.
    Argued November 15, 1985;
    decided December 19, 1985

      APPEARANCES OF COUNSEL

      Doris L. Sassower, pro se, and Barton Denis Eaton for Doris L. Sassower, appellant.

      Gerald Jacobson, respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Plaintiff Gerald Jacobson instituted this action to recover a portion of a $2,500 retainer previously paid to defendant, his lawyer in a domestic relations matter, claiming that the sum paid was unearned. Defendant maintains that the $2,500 retainer is nonrefundable.

The payment was made pursuant to a letter agreement, drafted by defendant and executed by both parties shortly after an initial consultation. The agreement provided generally for an hourly charge of $100 to be paid as billed but stated in paragraph 2: "I hereby agree to a non-refundable retainer of $2,500 (which is not to be affected by any possible reconciliation between myself and my wife). Said retainer is to be credited against your charges (receipt of $2,500 being hereby acknowledged).” Plaintiff later discharged defendant without cause following a disagreement concerning whether she, rather than an associate, would represent him at a pending court hearing. Civil Court credited defendant with a maximum of 10 hours work and, relying on the $100 hourly rate stated in the retainer agreement, concluded that the fair value of defendant’s services was $1,000 (Jacobson v Sassower, 113 Misc 2d 279, 286). The judgment was affirmed by the Appellate Term (122 Misc 2d 863) and the Appellate Division (107 AD2d 603) which granted leave to appeal to this court.

A party to an action in Small Claims Court may only appeal an adverse decision on the ground that substantial justice has not been done between the parties according to the rules and principles of substantive law (CCA 1807). Defendant is unable to prevail on that ground. A client may always discharge his attorney, with or without cause, and in the absence of a contract providing otherwise an attorney discharged without cause is entitled to be compensated in quantum meruit (Martin v Camp, 219 NY 170). Because the retainer clause of this agreement is ambiguous, Civil Court properly construed it against defendant and compensated her on an hourly basis.

In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language (67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245, 249). Additionally, and as a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients (Smitas v Rickett, 102 AD2d 928, 929). An attorney has the burden of showing that a fee contract is fair, reasonable, and fully known and understood by the client (id.; Cohen v Ryan, 34 AD2d 789, 790). As the Appellate Division stated in Smitas v Rickett (supra), "[e]yen in the absence of fraud or undue influence, an agreement to pay a legal fee may be invalid if it appears that the attorney got the better of the bargain, unless [she] can show that the client was fully aware of the consequences and that there was no exploitation of the client’s confidence in the attorney” (id., p 929, citing Greene v Greene, 56 NY2d 86, 92; compare, Matter of Howell, 215 NY 466, 472; Baye v Grindlinger, 78 AD2d 690 [contracts executed after the initiation of an attorney-client relationship]).

This retainer agreement was ambiguous because it did not state clearly that the "non-refundable retainer of $2,500” was intended to be a minimum fee and that the entire sum would be forfeited notwithstanding any event that terminated the attorney-client relationship prior to 25 hours of service. In the absence of such clear language, defendant was required to establish that plaintiff understood that those were the terms of the agreement and she failed to do so. Indeed, defendant does not claim that she explained the nature and consequences of the nonrefundable retainer clause to plaintiff before he executed the contract and the trial judge accepted plaintiff’s evidence that he did not understand the payment to be a minimum fee.

In view of this disposition, it is not necessary to reach plaintiff’s further contention that nonrefundable retainer agreements are against public policy and, therefore, void.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone concur; Judge Alexander taking no part. Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Sanford Reingold, Appellant, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Stephanie S. Alter for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (111 AD2d 688).

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


text:
    The People of the State of New York, Respondent, v Joseph Mincione, Appellant.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue on appeal is whether the van involved in this crime, used by a greenhouse construction company primarily to transport workers, materials and tools, is a "building” within the meaning of the burglary statutes. The definition of a "building” found in Penal Law § 140.00 (2) includes an "inclosed motor truck” and a "vehicle * * * used by persons for carrying on business therein”.

We conclude that the van in question meets the statutory definition of a building because it may be considered either an "inclosed motor truck” or a vehicle used for "carrying on business therein”. That interpretation is consonant both with the legislative intent of the statute and with the historical scope of its judicial construction (see, People v Richards, 108 NY 137; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 140.00, pp 11-13).

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

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


text:
    The People of the State of New York, Respondent, v James Pinky Brown, Appellant.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Richard L. Baumgarten for appellant.

      Richard J. Arcara, District Attorney (J. Michael Marion of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum at the Appellate Division (109 AD2d 1091) except insofar as that court, in the exercise of its discretion, passed upon issues not preserved for our review.

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


text:
    Albert W. Ast et al., Respondents, v State of New York, Appellant.
    (Claim No. 64247.)
    Argued November 13, 1985;
    decided December 19, 1985

      APPEARANCES OF COUNSEL

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

      Sheldon Hurwitz and Paul J. Suozzi for respondents.
   OPINION OF THE COURT

Memorandum.

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

State Police urgently invoking the assistance of a Thruway toll collector to stop a fleeing vehicle owe a duty of due care to assure that compliance with their request does not expose the individual to a reasonably foreseeable risk of harm (see, Thain v City of New York, 35 AD2d 545, affd 30 NY2d 524; Schuster v City of New York, 5 NY2d 75, 81, 84; Lubelfeld v City of New York, 4 NY2d 455). The affirmed findings, supported by the record, that this duty was breached and that such breach was a proximate cause of injury are beyond our review (Humphrey v State of New York, 60 NY2d 742).

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

Order affirmed, with costs, in a memorandum.


text:
    Harold I. Reichel, as Administrator of the Estate of Lena Reichel, Deceased, Appellant, v Government Employees Insurance Company, Respondent. (Proceeding No. 1.) In the Matter of Government Employees Insurance Company, Respondent, v Harold I. Reichel, as Administrator of the Estate of Lena Reichel, Deceased, Appellant. (Proceeding No. 2.)
    Argued November 11, 1985;
    decided December 19, 1985

      APPEARANCES OF COUNSEL

      Thomas Torto for appellant.

      Lawrence B. Lame and Vincent A. Di Blasi for respondent.
   OPINION OF THE COURT

Memorandum.

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

The maximum recovery limits for wrongful death under an uninsured motorist indorsement are $50,000 for the death of one person and $100,000 for the death of two or more persons (Insurance Law § 3420 [formerly § 167 (2-a)]). Pursuant to "terms and conditions * * * prescribed by the board of directors of the Motor Vehicle Accident Indemnification Corporation [MVAIC] and approved by the superintendent [of insurance]” (id.), when a claimant and an insurer cannot agree upon the amount to be recovered for such a claim, the parties must submit to binding arbitration. The statute also allows an insurer to provide supplementary uninsured motorists insurance with maximum coverage of $100,000/$300,000, but the MVAIC does not require that disputes concerning this excess coverage be resolved through binding arbitration.

In this case, the insured opted to purchase extra coverage, agreeing in a "Supplementary Uninsured Motorists Coverage” indorsement superseding the policy’s standard provisions that an arbitration award exceeding the standard $50,000/$100,000 limitation may be reviewed by either party in a trial de nova. Because the arbitration award in this case set the insured’s liability for the deceased’s hit-and-run death at $100,000, greater than the standard $50,000 limitation, we cannot accept appellant’s argument that the award was made pursuant to the standard Uninsured Motorist (Family Protection) coverage indorsement of the policy.

Although the extra coverage purchased by the insured here is commonly referred to as "underinsurance” (see, Metropolitan Prop. & Liab. Ins. Co. v Cassidy, 127 Misc 2d 641; Gull v General Acc. Fire & Life Assur. Corp., 121 Misc 2d 721), it is nonetheless uninsured motorists coverage. Indeed, the statutory authorization for such additional coverage is found within this State’s mandatory uninsured motorist coverage scheme, which describes this coverage as "Supplementary Uninsured Motorist Insurance”. The statute distinguishes between "insured” and "uninsured” motor vehicles (see, Insurance Law § 5202 [c], [d]). An "insured motor vehicle” is defined as "a motor vehicle as to which there is maintained proof of financial security as defined in [Vehicle and Traffic Law § 311 (3)]” (Insurance Law § 5202 [c]), while an "uninsured motor vehicle” is defined as "a motor vehicle other than a motor vehicle described in section (c)” (Insurance Law § 5202 [d]).

The statutory allowance for supplementary uninsured motorists insurance coverage expands the "uninsured motorist” category to include one who, while maintaining proof of financial responsibility as required by law, and thus being an "insured motorist”, nevertheless may be considered an "uninsured motorist” because he is "underinsured” when compared to the coverage of an insured who has exercised the option to purchase supplementary insurance.

The supplementary uninsured motorists coverage indorsement of the policy at issue is couched in language authorized by the board of directors of MVAIC and approved by the Superintendent of Insurance (see, Insurance Law § 3420; Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581, 586). As noted above, this indorsement provides for arbitration when the claimant and the insurer are unable to agree upon the amount to be paid under an uninsured motorist claim, but, unlike the requirement of a standard uninsured motorist indorsement that there be binding arbitration, either party is given the option to obtain a trial de nova of all the issues if an award is rendered in excess of the standard $50,000/$100,000 limitation. In addition to contradicting the express provisions of the indorsement, appellant’s argument that the first $50,-000 of an award is binding and unassailable and that the de nova trial should be limited to the excess awarded above that amount finds no support in the statute or in logic.

We find no ambiguity in the policy requiring a strict construction of the policy that would resolve the ambiguity against the insured (Miller v Continental Ins. Co., 40 NY2d 675). The policy’s face sheet, wherein the afforded coverage is recorded, clearly indicates that with respect to uninsured motorists, coverage will extend up to $100,000/$300,000 per accident, amounts only available pursuant to a supplementary uninsured motorist coverage indorsement since they are in excess of the maximum uninsured motorist coverage of $50,-000/$100,000 required by Insurance Law § 3420.

We have considered appellant’s other arguments and find them to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    Kevin Curtis et al., Respondents, v Town of Macedon et al., Respondents, and Waste Management of New York, Inc., Appellant.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Domenick L. Gabrielli, Scott M. Turner and Arnold N. Zelman for appellant.

      John M. Wilson, II, for Kevin Curtis and others respondents.
    A. Paul Britton, Jr., for Town of Macedón and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified by deleting from the declaration the phrase "entities located therein” and substituting therefor the phrase "entities or persons doing business therein” and, as so modified, affirmed, with costs to respondents. The broader substituted language is that used in the 1978 agreement to describe users of the landfill.

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


text:
    In the Matter of Builtland Partners, Respondent, v Jack LaLanne Biltmore Health Spa, Inc., Appellant.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Israel G. Seeger for appellant.

      Robert R. Lewis for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs (see, Rice v Ritz Assoc., 58 NY2d 923, affg 88 AD2d 513; Matter of Penn Cent. Corp. [Consolidated Rail Corp.], 56 NY2d 120; 8 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 7601.02, 7601.04).

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


text:
    In the Matter of Allison Dennis, Doing Business as Ashley-Winslow, Ltd., Appellant, v Gail S. Shaffer, as Secretary of State of the State of New York, et al., Respondents.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      David R. Murphy for appellant.

      Robert Abrams, Attorney-General (Betsy Broder and Robert Hermann of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (111 AD2d 989).

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


text:
    Ernest Simpson et al., Plaintiffs, v New York City Transit Authority et al., Defendants. Wilson Lowery, Third-Party Plaintiff-Appellant, v James P. McMahon et al., Third-Party Defendants-Respondents. Wilson Lowery, Appellant, v New York City Transit Authority et al., Respondents.
    Decided December 19, 1985

      APPEARANCES OF COUNSEL

      Edward A. Purcell, David W. Weschler and Martha Anne Geer for appellant.

      Steve S. Efron for Brian M. Asseron, respondent.

      William E. Rosa, Lawrence Heisler and Lawrence A. Silver for New York City Transit Authority and others, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs (see, Carpenter v City of Plattsburgh, 66 NY2d 791, affg 105 AD2d 295; Cohen v City of Philadelphia, 736 F2d 81, 86).

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


text:
    In the Matter of Olga Slade, Deceased. Marine Midland Bank, N. A., et al., Appellants; Catherine A. Scallen et al., Respondents.
    Submitted November 18, 1985;
    decided December 19, 1985
   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 (Cohen and Karger, Powers of the New York Court of Appeals § 36, at 145, n 68).


text:
    The People of the State of New York ex rel. Robert J. Wilkins, Appellant, v Morris Eccleston, as Sheriff of Chenango County, Respondent.
    Submitted November 18, 1985;
    decided December 19, 1985
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [b] [1]).


text:
    Whitmier & Ferris Co., Inc., Appellant-Respondent, v Buffalo Structural Steel Corp., Respondent-Appellant, and National Advertising Co., a Subsidiary of 3-M, Respondent.
    Argued November 14, 1985;
    decided December 26, 1985
    APPEARANCES OF COUNSEL

      Henry W. Killeen, III, and David P. Marcus for appellant-respondent.

      R. William Stephens for respondent-appellant.

      John E. Runals and Richard J. Hogan, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff leased a small strip of land from defendant Buffalo Structural Steel Corp. (BSS) in order to erect a billboard, and lease it for advertising. Plaintiff seeks to recover lost profit damages it allegedly suffered by virtue of BSS’s breach of a lease provision giving plaintiff "the first option to erect additional signs for advertising purposes with the consent of the Landlord which event would necessitate an additional lease upon terms to be agreed upon at such time”.

Plaintiff asserts that this provision, added at the request of BSS, created an enforceable right of first refusal which BSS breached by entering into two leases for the erection of billboards with defendant National Advertising Co. (National) without first giving it the opportunity to enter into the leases on identical terms. The terms "first option” in the context of a lease, ordinarily, but perhaps not invariably, create a right of first refusal (see, e.g., Cortese v Connors, 1 NY2d 265; Jurgensen v Morris, 194 App Div 92). Under traditional rules of landlord-tenant law, however, a tenant not yet in possession of demised premises may not recover profits which allegedly would have been earned if not for a breach by the landlord preventing the tenant from taking possession (see, e.g., Dodds v Hakes, 114 NY 260; cf. Smilo v Cooper-Smith, 302 NY 789; City of New York v Pike Realty Corp., 247 NY 245). Although this rule of law has been widely criticized (see, e.g., Dunn, Recovery of Damages for Lost Profits § 2.24, and cases cited therein [2d ed & 1985 Supp]), we are not yet prepared to abandon it where its application at the time of contracting (1969) was clear, and where, given the uncertainty surrounding the clause at issue, its abrogation might result in a windfall to plaintiff, a year-to-year tenant paying $600 per year rent at the time of the breach.

As to defendant National, we agree with the view of both the majority and dissent below that plaintiff failed to show that National intentionally induced BSS to breach the first option provision. It was not improper for National to make an offer to BSS, and there was no evidence that National had knowledge of BSS’s failure to offer plaintiff a right of first refusal.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Jasen concurs in result only.

On plaintiff’s appeal, order affirmed, with costs, in a memorandum. Cross appeal by defendant Buffalo Structural Steel Corp. dismissed, without costs, upon the ground that it does not lie as of right (CPLR 5601).


text:
    The People of the State of New York, Respondent, v Robert Shedrick, Appellant. The People of the State of New York, Respondent, v Wanda Shedrick, Appellant.
    Argued November 13, 1985;
    decided December 26, 1985

      APPEARANCES OF COUNSEL

      David A. Shults for Robert Shedrick, appellant.

      Raymond J. Urbanski for Wanda Shedrick, appellant.

      Larry D. Bates, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed.

Defendants each contend that the selection of grand and petit jurors in Steuben County from a cross-section of one of three "jury districts”, rather than from the county-at-large, constituted a violation of Judiciary Law article 16.

In 1904, the Steuben County Board of Supervisors divided the county into three jury districts pursuant to legislation explicitly providing the board with such powers. (See, L 1892, ch 686, § 12 [14]; L 1902, ch 119.) In 1942, the enabling legislation was repealed, but no provision was made for the abolition of those already existing jury districts which had been lawfully created under the former law. (See, L 1942, ch 799, § 20; see generally, People v Wood, Steuben County Ct, Sept. 18, 1979 [Purple, J.].) Indeed, absent clear reference in the 1942 legislation to existing jury districts, explicit or implied, and absent necessary conflict between that legislation and the continued existence of those districts, their legitimacy will not be deemed to have been affected or impaired. (See, General Construction Law § 93; McKinney’s Cons Laws of NY, Book 1, Statutes § 391; cf. People v Johnson, 110 NY 134, 140.)

Likewise, subsequently enacted provisions of the Judiciary Law, upon which defendants specifically rely, did not invalidate Steuben County’s continued use of its lawfully created jury districts. Judiciary Law article 16, enacted in 1977, requires that "grand and petit juries [be] selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes(§ 500 [emphasis added].) There is no unequivocal requirement that juries be drawn from a pool of residents from throughout the entire county wherein the court convenes and, moreover, there is no provision in any section of article 16 clearly expressing or implying a legislative mandate that any existing jury district system, previously established pursuant to prior legislation, be abolished. (See, e.g., §§ 506, 514, which require that jurors be drawn from lists of qualified individuals residing in the county, but do not unambiguously mandate that the lists be countywide.)

Further, neither defendant has demonstrated that the grand or petit jurors were selected from a group unrepresentative of a fair cross-section of the community, or that a particular segment of the community was deliberately excluded. Hence, there is no merit to their respective constitutional claims. (See, People v Guzman, 60 NY2d 403, 409-410, cert denied 466 US 951; People v Parks, 41 NY2d 36, 42-43.)

Additionally, in People v Shedrick (Robert), it cannot be said that the People’s prime witness was incredible as a matter of law and, therefore, it was for the jury to determine whether to believe or disbelieve his testimony. (People v Buchalter, 289 NY 181, 201; People v Cohen, 223 NY 406, 423.) Nor was it reversible error for the court to exclude results of a polygraph examination offered by defendant to indicate his own belief in his innocence. The reliability of the polygraph has not been demonstrated with sufficient certainty to be admissible in this State. (People v Tarsia, 50 NY2d 1, 7; People v Leone, 25 NY2d 511, 517.)

Moreover, in People v Shedrick (Wanda), defendant was not denied due process by the trial court’s refusal to admit evidence of a police scheme to place an informant in Robert Shedrick’s cell for the purpose of obtaining information. No such information was obtained and nothing resulting from the attempt was sought to be introduced by the People. Evidence of that scheme, sought to be introduced by defendant, was purely collateral to the issues at trial and was properly excluded by the court. (See, People v Davis, 43 NY2d 17, 27.) Furthermore, the verdict was sufficiently supported by the People’s prime witness whom the jury apparently chose to believe (People v Ohanian, 245 NY 227, 230) and whose testimony, as an accomplice connecting defendant with commission of the crimes in question, was substantially corroborated by real evidence and the testimony of other witnesses. (See, People v Daniels, 37 NY2d 624, 629-630.)

We have examined the remaining contentions of each defendant and find them to be without merit.

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

In each case: Order affirmed in a memorandum.


text:
    Lawrence Epstein et al., Appellants, v Mediterranean Motors, Inc., Respondent. (And Another Action.)
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Stephen C. Glosser for appellants.

      Sheldon Bunin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the opinion by Justice James F. Niehoff at the Appellate Division (109 AD2d 340; see also, Pulka v Edelman, 40 NY2d 781).

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


text:
    Sharon Bretton, Appellant, v Mutual of Omaha Insurance Company, Respondent.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Gerald J. Mondora for appellant.

      Anthony J. Mercorella for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (110 AD2d 46).

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


text:
    In the Matter of Cattaraugus County Nursing Home, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants. (Proceeding No. 1.) In the Matter of Cattaraugus County Home and Infirmary, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants. (Proceeding No. 2.)
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert Hermann and Clifford A. Royael of counsel), for appellants.

      John W. Clark for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders modified, with costs to appellants, by directing appellants to hold hearings and, as so modified, affirmed (Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169).

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


text:
    In the Matter of Donald Jermosen, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Edward L. Chassin and Norman P. Effman for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Leslie Neustadt of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The procedures "followed in the adjustment committee proceedings challenged by petitioner conformed with the regulations governing adjustment committees then in effect. The adjustment committee determinations resulted only in the inmate’s confinement to “less amenable and more restrictive quarters” for the purpose of maintaining institutional order and safety rather than as punishment. Thus, compliance with the minimal due process requirements of Wolff v McDonnell (418 US 539) was not mandated (Hewitt v Helms, 459 US 460, 468; Matter of Amato v Ward, 41 NY2d 469, 472-473).

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

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


text:
    Carolyn Solomon, an Infant, by Her Father and Natural Guardian, Arthur Solomon, et al., Appellants, v City of New York, Respondent.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Cheryl Eisberg Moin for appellants.

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

Memorandum.

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

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 NY2d 325, 333, citing Prosser, Torts § 30, at 143 [4th ed]). In its proprietary capacity, "a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition” (Nicholson v Board of Educ., 36 NY2d 798, 799). This duty "includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge” (Benjamin v City of New York, 64 NY2d 44, 46). Bicycle riding on a busy promenade does not rise to the level of "ultrahazardous and criminal” (see, Zarillo v State of New York, 8 AD2d 651, affd 7 NY2d 943; cf. Benjamin v City of New York, 64 NY2d 44, supra; Caldwell v Village of Is. Park, 304 NY 268; Nicholson v Board of Educ., 36 NY2d 798, supra). Thus, as a matter of law, the city did not breach its duty to plaintiffs.

Nor has plaintiff stated a cause of action based on the city’s alleged failure to enforce the regulations prohibiting bicycle riding in the area where the infant plaintiff was injured. By promulgating and enforcing these regulations, intended for the protection of the general public, defendant did not assume a special relationship toward the infant plaintiff carrying with it a special duty to protect the latter from the prohibited activity (Sorichetti v City of New York, 65 NY2d 461, 468; De Long v County of Erie, 60 NY2d 296, 304; Florence v Goldberg, 44 NY2d 189, 195-196).

Because plaintiffs failed to demonstrate a duty of care owed by defendant, the complaint was properly dismissed.

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

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


text:
    The People of the State of New York, Appellant, v Walter Moore, Respondent.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Richard J. Arcara, District Attorney (Rosemarie A. Wyman of counsel), for appellant.

      Carolyn Connors Balowitz and Rose H. Sconiers for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It is well settled in this State that "a guilty plea, once withdrawn, 'is out of the case forever and for all purposes’ ” (People v Droz, 39 NY2d 457, 463, quoting People v Spitaleri, 9 NY2d 168, 173; accord, People v Burd, 18 NY2d 447, 450). This rule, which applies both to the fact of the plea and the contents of the plea allocution, prohibits the use of such material either on the People’s direct case (People v Spitaleri, supra) or for impeachment purposes should the defendant take the stand (People v Droz, supra; People v Burd, supra; People v Papo, 80 AD2d 623; People v Heffron, 59 AD2d 263, 269). People v Evans (58 NY2d 14) is not to the contrary. There, the defendant had been allowed to plead to a lesser charge on condition that he give the District Attorney a sworn statement describing the crime in detail and testify at his accomplice’s trial. The conviction upon the guilty plea was reversed for unrelated reasons, and the People sought to use at trial the preplea statement and the defendant’s subsequent testimony at his accomplice’s trial. We held that under those circumstances, allowing the use of the preplea statement and subsequent testimony would not be unfair to the defendant whereas precluding their use would be unfair to the People since that was the very material that the People had bargained for in the plea agreement. The same considerations do not apply to the plea itself or to admissions made during the plea allocution since the subsequent use of those statements should the plea later be withdrawn is not something the People have bargained for and would be decidedly unfair to the defendant.

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

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


text:
    In the Matter of Andre Porter, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      Susan K. Jones for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Martin A. Hotvet of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 753).

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


text:
    In the Matter of Mid-State Management Corp., Appellant, v New York City Conciliation and Appeals Board, Respondent.
    Decided December 26, 1985

      APPEARANCES OF COUNSEL

      William E. Rosen for appellant.

      Edward Chazin and Iris J. Korman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 72).

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


text:
    The People of the State of New York, Respondent, v George Jackson, Appellant.
    Decided December 26, 1985
   On the court’s own motion and on consent of the parties, appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Darden, 52 NY2d 1015; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).


text:
    In the Matter of Dion Ivey, Respondent, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, Appellant, et al., Respondents.
    Decided December 26, 1985
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601 [a] [iii]).


author: Per Curiam.

text:
    Francesco Cruz, Appellant, v American Export Lines, Inc., et al., Respondents. Ottavio Bussanich et al., Appellants, v United States Lines, Inc., Respondent.
    Argued November 19, 1985;
    decided January 14, 1986

      POINTS OF COUNSEL

      Fred R. Profeta, Jr., and Morris Cizner for appellant in the first above-entitled action.
    I. This ship had a duty to intervene and remove the dunnage if the stevedore was proceeding "improvidently” and this factual determination may not be resolved upon motion. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Barulic v French Line, 75 AD2d 761, 451 US 908; Doca v Marina Mercante Nicaraguense, S.A., 634 F2d 30, 451 US 971; Lemon v Bank Lines, 656 F2d 110; Evans v Transportacion Mar. Mexicana, 639 F2d 848; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Lieggi v Maritime Co., 667 F2d 324; Lopez v A/S D/S Svendborg, 581 F2d 319; Tragni v Establissement Mar. Camille, 705 F2d 92; Edmonds v Compagnie Generale Transatlantique, 443 US 256.) II. The Maritime Safety Code imposed a duty upon the ship to maintain the safety of the work space and the ship’s violation of that duty may not be resolved upon motion. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Albergo v Hellenic Lines, 658 F2d 66; Alvez v American Export Lines, 46 NY2d 634; Igneri v Cie. de Transps. Oceaniques, 323 F2d 257, 376 US 949; Sea-Land Servs. v Gaudet, 414 US 573; Tragni v Establissement Mar. Camille, 705 F2d 92; Putnam v Stout, 38 NY2d 607; Danbois v New York Cent. R. R. Co., 12 NY2d 234; Haber v Cross County Hosp., 37 NY2d 888; Trimarco v Klein, 56 NY2d 98.) III. The majority below did not even consider the ship’s duty not to create a hazard and there are factual issues relating to that duty which may not be resolved upon motion. (Barulic v French Line, 75 AD2d 761, 451 US 908; Lemon v Bank Lines, 656 F2d 110; Futo v Lykes Bros. S. S. Co., 742 F2d 209; Marks v Nambil Realty Co., 245 NY 256; Phillips v Kantor & Co., 31 NY2d 307; Mandell v Field, 11 AD2d 1074; Pathmark Graphics v J. M. Fields, Inc., 53 AD2d 531; Horowitz v Kevah Konner, Inc., 67 AD2d 38.)

      Michael N. Cotignola for respondents in the first above-entitled action.
    I. The existence of dunnage on the deck did not represent an unreasonable risk of harm to plaintiff, as a matter of law, since the accumulation of dunnage was a normal incident of the stevedoring operation and since the condition could have easily been eliminated by the longshoremen. (Seas Shipping Co. v Sieracki, 328 US 85; Ryan Co. v Pan-Atlantic Corp., 350 US 124; Cox v Flota Mercante Grancolombiana, S.A., 577 F2d 798; Munoz v Flota Mercante Grancolombiana, S.A., 553 F2d 837; Scindia Steam Nav. Co. v De Los

      Santos, 451 US 156; Marine Terms, v Shipping Co., 394 US 404; Albergo v Hellenic Lines, 658 F2d 66; Lubrano v Companhia de Navegacao Lloyd Brasileiro, 575 F Supp 1541; Utica Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 64 NY2d 1049.) II. The shipowner had no duty to intervene to correct a condition which was not unreasonably dangerous, which was created solely by the longshoremen, which could easily have been corrected by the longshoremen, and where the shipowner had a right to rely on the stevedore to correct the condition. (Lubrano v Companhia de Navegacao Lloyd Brasileiro, 575 F Supp 1541; Gay v Ocean Transp. & Trading, 546 F2d 1233; Giglio v Farrell Lines, 613 F2d 429; Albergo v Hellenic Lines, 658 F2d 66; Lieggi v Maritime Co., 667 F2d 324; Evans v Transportacion Mar. Mexicana, 639 F2d 848; Lopez v A/S D/S Svendborg, 581 F2d 319.) III. The Joint Maritime Safety Code did not impose a duty on the shipowner, as a contractual obligation or as a matter of custom, to continuously maintain an area solely under the control of the stevedore as the Code does not apply both as a matter of law and on the facts of this case. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Lubrano v Companhia de Navegacao Lloyd Brasileiro, 575 F Supp 1541; Irizarry v Compania Maritima Navegacion Netumar, S.A., 628 F2d 1345; Albergo v Hellenic Lines, 658 F2d 66; Giglio v Farrell Lines, 613 F2d 429; Subingsubing v Smith Line, 682 F2d 779; Thielebeule v M/S Norsdee Pilot, 452 F2d 1230.)

      Fred R. Profeta, Jr., for appellants in the second above-entitled action.
    I. The Joint Maritime Safety Code imposes a duty upon the shipowner to maintain the safety of work spaces and the trial court erred in not charging Code provisions and in withdrawing it from evidence. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Albergo v Hellenic Lines, 658 F2d 66; Giglio v Farrell Lines, 613 F2d 429; Alvez v American Export Lines, 46 NY2d 634; Igneri v Cie. de Transps. Oceaniques, 323 F2d 257, 376 US 949; Sea-Land Servs. v Gaudet, 414 US 573; Tragni v Establissement Mar. Camille, 705 F2d 92; Rogers v Dorchester Assoc., 32 NY2d 553; Putnam v Stout, 38 NY2d 607.) II. Apart from the Code, the shipowner has a duty to maintain safety and the supplemental charge erroneously stated that the duty ceases when cargo operations begin. (Barulic v French Line, 75 AD2d 761, 451 US 908; Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Sarauw v Oceanic Nav. Corp., 622 F2d 1168; Taliercio v Compania

      Empressa Lineas Argentina, 761 F2d 126; McDonald v United States, 321 F2d 437; Kermarec v Compagnie Generate, 358 US 625; Turner v Costa Line Cargo Servs., 744 F2d 505; Lemon v Bank Lines, 656 F2d 110; Subingsubing v Smith Line, 682 F2d 779.) III. The court erred in admitting the three stevedore accident reports, which provided the sole basis for defendant’s "cargo fence” theory. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156; Ward v Thistleton, 32 AD2d 846; Sabatino v Turf House, 76 AD2d 945; Matter of Leon RR, 48 NY2d 117.)

      Daniel J. Dougherty, Mark F. Muller and Robert E. Higgins for respondent in the second above-entitled action.
    I. A major portion of appellants’ codai argument is premised upon an unfaithful reproduction of the trial transcript. II. Appellants’ appeal is founded upon an erroneous conception of appellate practice. (Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376.) III. Appellants’ argument that they were prejudiced by the court’s ruling on the Joint Maritime Safety Code is sham. (Lukasiewicz v City of Buffalo, 55 AD2d 848; Jemison v Goodman, 49 AD2d 1011.) IV. The Code does not impose a duty that is any different from the case law as charged. It is reconcilable with all cited cases. (Scindia Steam Nav. Co. v De Los Santos, 451 US 156.) V. The charge was proper in all respects. (Lemon v Bank Lines, 656 F2d 110; Carotenuto v Surface Transp. Co., 271 App Div 990; Scheib v Williams-McWilliams Co., 628 F2d 509; Kalish v Krieger, 42 AD2d 955, 35 NY2d 864; Franks v United States Lines Co., 324 F2d 126.) VI. Plaintiff’s arguments regarding the accident reports are specious. (Sabatino v Turf House, 76 AD2d 945; Toll v State of New York, 32 AD2d 47; Puggioni v Luckenbach S. S. Co., 286 F2d 340; United States v New York Foreign Trade Zone Operators, 304 F2d 792; Chemical Leaman Tank Lines v Stevens, 21 AD2d 556; Kelly v Wasserman, 5 NY2d 425; Johnson v Lutz, 253 NY 124.) VII. Appellants’ statement about the injuries and permanent disability is untrue. This statement reflects their lack of credibility.
   OPINION OF THE COURT

Per Curiam.

The central issue in these cases involving claims under the Longshoremen’s and Harbor Workers’ Compensation Act (the Act) (33 USC §§ 901-950) is whether the Joint Maritime Safety Code (the Code), prepared jointly by shippers and the longshoremen’s union, has expanded the duties imposed upon shipowners under the Act. We hold that it does not.

I

Francesco Cruz, a longshoreman employed by John W. McGrath Corporation, a stevedore company, was injured on September 17, 1976 when a hi-lo being used by longshoremen to move bales of burlap struck a piece of dunnage, dislodging a 2,400 pound burlap bag that struck him on the back of his foot. He commenced this action against American Export Lines, Inc. and Farrell Lines, Inc., the owners of Export Builder, the vessel being discharged of its cargo by McGrath longshoremen at the time of the accident. Cruz alleged that the "stevedoring work on board [the Export Builder] was being performed under the general supervision and direction of defendant^]”, that hatch No. 3, where the work was being done, was "maintained, supplied and provided” by defendants and that defendants, through their negligence, inter alla, in failing to provide a safe place to work "violated the provisions of the Joint Maritime Safety Code of the Port of New York”.

Following joinder of issue and completion of plaintiff’s examination before trial, the shipowners moved for summary judgment contending that no legally sufficient cause of action against them had been set forth. The motion was based on Cruz’s deposition testimony that at the time of the accident the cargo operations had been turned over to the stevedore company, which defendants argued was an independent contractor employing acknowledged experts in cargo handling who chose the manner and method of discharging the cargo. The shipowners asserted, therefore, that under the 1972 amendments to the Act, they were not liable for injuries sustained by a longshoreman during the stevedoring operation. In opposition to the motion, plaintiff submitted an affidavit of his fellow longshoreman Tomas Aviles, who asserted that he had complained to the ship’s mate that "there was a lot of dunnage on the deck and between the bales” and had been told by the mate to "leave it” because "the crew would remove it when [the longshoremen] stopped work.”

Special Term denied the motion, finding that there were triable issues of fact as to the nature and cause of the accident. A divided Appellate Division reversed and granted the motion for summary judgment, holding that pursuant to Scindia Steam Nav. Co. v De Los Santos (451 US 156), "a shipowner 'has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore’ ” (106 AD2d, at p 9). The court reasoned that under the 1972 amendments to the Act, the stevedore, rather than the shipowner, is required to provide the longshoremen with a reasonably safe place to work and to comply with those requirements determined by the Secretary of Labor to be the precautions necessary to insure the safety of the longshoremen with respect to equipment and working conditions. The court rejected as " 'contrary to the prevailing weight of * * * authority’ ” (106 AD2d, at p 11) plaintiff’s contention that the Code places upon the shipowner a concurrent duty to maintain a safe workplace for stevedoring operations.

Plaintiff argues on this appeal that not only did defendants have a duty, imposed by the Code, to maintain the work place in a safe condition, but that they also assumed an affirmative duty to remove the dunnage and to prevent injury to plaintiff upon being advised that there was "a lot of dunnage on the deck” of the hatch. Moreover, plaintiff contends that the longshoremen were proceeding "improvidently” in the face of the danger created by the dunnage, and thus defendants were obligated to intervene since under the circumstances they could not reasonably anticipate that the stevedore would correct the dangerous condition.

II

Ottavio Bussanich, a longshoreman employed by Universal Maritime Service Corp., was struck on the head by a piece of lumber that fell from somewhere above while he was discharging household goods from the lower hold of the SS Pioneer Contender, a vessel owned by defendant. The five-week trial focused on the origin of that timber.

A fellow employee testified for Bussanich that the timber fell from an ammunition bulkhead or sheathing, that without dispute, had nothing to do with the cargo operation. In vessels carrying ammunition, sheathing is installed as a buffer between the ammunition and the vessel’s metal hull to prevent sparks that could cause the ammunition and the vessel to explode. Here, independent contractors had installed sheathing some three months earlier in connection with a voyage by the vessel to Vietnam. Bussanich’s theory was that the timber had been held in place by just one nail, that the vessel was on notice of this condition, and that this constituted a safety hazard for which the vessel should be held liable. The position of defendant shipowner was that the planking fell from a cargo bulkhead fence erected during unloading operations by the stevedore, whose duty it also was to dismantle the fence when operations were completed. Under this theory, the fence, and the hazard, were created by the stevedore.

During trial, plaintiff, without objection, had a section of the Code read to the jury. Plaintiff’s expert testified that the Code was a codification of industry custom and practice, and that defendant had breached the section by failing to provide plaintiff a safe place to work. Defendant, in turn, asked the court to take notice of and charge a number of other Code sections relating to the duty to make accident reports and the duties of stevedores to ensure the safety of longshoremen. However, the trial judge ultimately decided to strike from evidence the previously admitted portion of the Code and declined to charge any part of the Code. Instead, in its main charge the court instructed the jury as follows: "A ship owner’s liability for negligence is based upon the failure of the ship owner’s officers or crew or ship’s representatives to perform the duty of which a reasonably prudent officer, crew member or ship’s representative should have done under the circumstances, that is, to provide a reasonably safe place for the Plaintiff to work, and to cause the remedy or removal of any dangerous or unsafe condition which it knows of, and in the exercise of reasonable care could discern or discover.” Thereafter, in response to a question from the jury during deliberations, the court instructed them that: "You are not permitted to speculate or to guess as to what caused the accident. If you cannot determine from the testimony the cause of the accident, then you must find in favor of the Defendant. A vessel need be only reasonably fit for its intended purpose or service, and once an independent stevedoring contractor such as Plaintiff’s employer has started the cargo handling operation, it becomes the stevedore’s duty, not the vessel owner’s, to take such steps as are necessary to maintain a safe place in which the stevedore’s employees can work.”

The jury returned a general verdict in favor of defendant, and the Appellate Division affirmed.

III

At the outset, we note that our role here, is limited. In admiralty cases "we proceed cautiously cognizant that it is the general maritime law that governs the rights and liabilities of the parties” (Alvez v American Export Lines, 46 NY2d 634, 638, affd 446 US 274). Answers to the questions presented are "obtainable solely by recourse to Federal law” (id., at p 639). In this limited role we are obliged to apply "a controlling Supreme Court decision” if it exists or "a uniform Federal rule, albeit one established by lower Federal courts” (id.). In the absence of either we must proceed with deference to analyze the question under the general maritime law.

Prior to 1972, a longshoreman injured while loading or unloading a vessel received compensation payments from his employer and could also sue the shipowner on the theory that his injury was caused by the vessel’s unseaworthiness or negligence (Seas Shipping Co. v Sieracki, 328 US 85). Proof of unseaworthiness required no proof of the shipowner’s fault other than an unsafe, injury-causing condition on the vessel. This was true even though the condition was caused by the stevedore or its employee (Scindia Steam Nav. Co. v De Los Santos, 451 US 156, 164-165, n 11, supra). However, if the stevedore’s conduct was a factor, the shipowner could recover against it for breach of express or implied warranty to handle the cargo in a reasonably safe manner (Ryan Stevedoring Co. v Pan-Atlantic Corp., 350 US 124).

This scheme was radically changed by Congress in 1972 (see, Pub L 92-576, 86 Stat 1251, amdg 33 USC § 902 et seq.; Scindia Steam Nav. Co. v De Los Santos, 451 US 156, 165, supra). Balancing the conflicting interests of the vessel owner, the stevedore, and the longshoreman, Congress made three substantial changes: "First, the level of benefits [payable to longshoremen by stevedores] was substantially increased, thereby increasing the likelihood that the statutory compensation recoverable without proof of fault would be adequate. Second, the shipowner’s right to seek indemnity from the stevedore under Ryan Stevedoring was eliminated, thereby removing a category of litigation from the courts, placing more definite limits on the stevedore’s insurance costs, and removing a potential source of conflict between the interests of employers and employees. Third, the shipowner’s nearly absolute liability for unseaworthiness was eliminated, thereby further narrowing the area of potential litigation and increasing the relative importance of statutory awards as the favored method of compensation.” (Rodriguez v Compass Shipping Co., 451 US 596, 616 [nn omitted]; see, Scindia Steam Nav. Co. v De Los Santos, 451 US 156, 165, supra.)

Thus, section 905 (b) of the Act was amended to provide in part: "In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party * * * and the employer shall not be liable to the vessel for such damages directly or indirectly * * * The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred”. (33 USC § 905 [b].)

Scindia Steam, the Supreme Court’s most definitive statement to date in this area, has made clear that, at a minimum, a shipowner must be found negligent before it may be held liable. "Congress intended to make the vessel answerable for its own negligence and to terminate its automatic, faultless responsibility for conditions caused by the negligence or other faults of the stevedore” (451 US, at p 168). The court also noted, however, that in some circumstances the vessel will not be liable in negligence even if it fails to prevent foreseeable injuries to longshoremen: "Cases holding the vessel liable on the ground that it owed nondelegable duties to protect the longshoremen from injury were rejected [by Congress]. It would be inconsistent with the Act to hold, nevertheless, that the shipowner has a continuing duty to take reasonable steps to discover and correct dangerous conditions that develop during the loading or unloading process. Such an approach would repeatedly result in holding the shipowner solely liable for conditions that are attributable to the stevedore, rather than the ship. True, the liability would be cast in terms of negligence rather than unseaworthiness, but the result would be much the same. '[C]reation of a shipowner’s duty to oversee the stevedore’s activity and insure the safety of longshoremen would * * * saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905 (b).’ ” (Scindia Steam Nav. Co. v De Los Santos, 451 US, at pp 168-169, supra [nn omitted]; see also, id., at p 181 [Powell, J., concurring].)

The Scindia court further held that "absent contract provision, positive law, or custom to the contrary * * * the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore” (451 US, at p 172, supra). This does not mean, however, that the vessel owes no duty to a longshoreman (Lieggi v Maritime Co., 667 F2d 324, 328). The shipowner has a duty to exercise reasonable care to turn over the vessel and its equipment to the stevedore in reasonably safe condition and to warn the stevedore of hazards of which the owner is or should be aware (Scindia Steam Nav. Co. v De Los Santos, 451 US, at p 166, supra; Evans v Transportacion Mar. Mexicana, 639 F2d 848, 855). Additionally, "the vessel may be liable if it actively involves itself in the cargo operations” (Scindia Steam Nav. Co. v De Los Santos, 451 US, at p 167, supra). Moreover, although the vessel has no general duty to supervise the stevedore, a vessel with knowledge of a dangerous condition has a duty to intervene when the stevedore’s decision to continue operations despite the danger is "obviously improvident” (id., at p 175). In the cases now before us, the plaintiffs claim that the Code constitutes the "contract provision, positive law, or custom” exceptions referred to in Scindia necessary to enlarge the vessel’s duties.

The Code in its introduction best describes its scope and intended effect:

"This Manual presents the commonly agreed on practices for working together safely. These practices have been developed as a result of the experiences and suggestions of longshoremen, supervisors, the NYSA-ILA Port of New York Joint Safety Committee, and other maritime safety specialists throughout the country.

* * *

"This Manual applies to all stevedoring operations. It is intended to indicate the minimum recommendations for the prevention of accidents and should neither conflict with statutory provisions of the United States or other local governmental agencies nor prevent the use of improved gear or methods which provide equal or better protection and efficiency. It is not intended that the duties or responsibilities shall be limited to those outlined in this Manual.”

In support of their claim that the Code enlarges the vessel’s duties, plaintiffs point to section 1 of part C, which provides that "[t]he owner, master and officers of the vessel shall supply and maintain in safe condition for use all ship’s gear and equipment, tools and work spaces which are to be used in stevedoring operations.” Plaintiffs argue that the obligation to "maintain in safe condition for use all * * * work spaces” creates an ongoing duty to protect longshoremen against hazards created by the stevedore during the course of operations after the master has turned the vessel over. Although Scindia makes clear that regulation, contract or custom may place additional duties on the vessel, the Second Circuit has never recognized the Code as establishing any such duty in New York harbor. To do so would be inconsistent with section 905 (b) of the Act and would " 'saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate’ ” (Scindia Steam Nav. Co. v De Los Santos, 451 US, at p 169, supra).

Plaintiffs rely upon Irizarry v Compania Maritima Navegacion Netumar (1981 AMC 2424 [2d Cir 1980], cert denied 451 US 969), where the Second Circuit, in a memorandum without any precedential effect (see, Rules of Second Circuit § 0.23), cited section 1 of part C of the Code in affirming a judgment in favor of a longshoreman who fell while walking across the icy surface of a container. They also rely upon the Supreme Court’s statement at the end of a footnote in Scindia, that it noted "with some interest” the Irizarry decision and its apparent reliance on the Code (see, 451 US, at p 177, n 25, supra). Irizarry, however, is inapposite because there the hazardous condition — snow and ice — came into existence before the vessel entered port, long before the stevedore took control. Moreover, the Second Circuit viewed its Irizarry decision as consistent with Giglio v Farrell Lines (613 F2d 429), where the court affirmed a dismissal of a claim based on a hazardous condition —spilled brine and graphite creating a slippery surface — created by the stevedore during unloading operations. The majority in Giglio tacitly rejected Judge Oakes’ argument in dissent that the Code created a duty on the vessel’s part to keep the area safe. Indeed, although Judge Oakes cited section 1 of part C, even he relied principally on other sections of the Code dealing specifically with a vessel’s obligations to make available and apply sand to cover spills of slippery substances. In Albergo v Hellenic Lines (658 F2d 66), where the plaintiff was injured when he tripped on rope cuttings that the stevedore had a duty to clear away, a majority of the Second Circuit in affirming a grant of judgment to the vessel notwithstanding the verdict, again tacitly rejected Judge Oakes’ position that the general language of section 1 of part C of the Code imposed on the vessel a duty to keep a work area clear while it is under a stevedore’s control.

As District Judge Haight observed in Lubrano v Companhia de Navegacao Lloyd Brasileiro (575 F Supp 1541, 1548-1549): "[Judge Oakes’ position] is a dissenting view, and I conceive it to be contrary to the prevailing weight of Second Circuit authority. Moreover, the majority view is * * * clearly correct. A vessel owner’s joint fault under the Safety Code would render the owner liable for the full amount of the injured longshoreman’s injuries, even if the vessel owner had not created the condition, the independent stevedore had negligently failed to correct it, and the vessel owner could not have reasonably anticipated that failure. That result would be inconsistent with the thrust of recent authority holding that the vessel owner may rely upon the expertise of the stevedoring contractor * * * [I]n practical result, the vessel owner would assume sole responsibility to an injured longshoreman in circumstances where the federal regulatory scheme places primary responsibility upon the stevedoring contractor.”

Thus it is clear that, under the Federal rule we are bound to apply, the Code does not impose additional duties on the shipowner.

IV

Applying the above-stated principles to the cases now before us, we hold in Cruz that the Appellate Division erred in granting summary judgment and dismissing the complaint. Mindful that issue finding and not issue resolution is a court’s proper function on a motion for summary judgment, and drawing all inferences in plaintiff’s favor as we are bound to do, we conclude that factual issues exist requiring a plenary trial. There is a question whether the vessel assumed responsibility for removal of the dunnage (see, Lieggi v Maritime Co., 667 F2d 324, supra), or whether the vessel improperly directed the stevedore to keep working despite a known hazard that the vessel knew would not be corrected (see, Lubrano v Royal Netherlands S. S. Co., 572 F2d 364).

In Bussanich, the court’s charge adequately stated the controlling legal principles to be applied by the jury in resolving the sharply contested issues of fact. While the court’s supplemental charge may not have fully explicated the possibility of the shipowner’s concurrent liability for its negligence, it is clear that had the jury accepted plaintiff’s theory, the charge properly would have allowed the jury to find for plaintiff.

V

In Cruz, the order of the Appellate Division should be reversed, with costs, and defendants’ motion for summary judgment denied. In Bussanich, the order of the Appellate Division should be affirmed, with costs.

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

In Cruz v American Export Lines: Order reversed, with costs, and defendants’ motion for summary judgment denied.

In Bussanich v United States Lines: Order affirmed, with costs. Appellant’s oral application to strike matter from respondent’s brief denied.

      . We note the Second Circuit has rejected the Appellate Division’s reasoning in Cruz that the regulatory and statutory scheme of the Occupational Safety and Health Administration places primary responsibility for the safety of the longshoremen upon the stevedore so as to relieve the shipowner of any obligation (Lieggi v Maritime Co., 667 F2d 324). "The regulations do not provide that the stevedore’s responsibility for the condition of the work spaces is exclusive. The fact that the stevedore has a duty to keep those areas clear does not prevent the shipowner from having one as well; if both the shipowner and the stevedore neglect their duties they may be concurrently negligent” (667 F2d, at p 328, n 8; see also, Lubrano v Royal Netherlands S. S. Co., 572 F2d 364; Lopez v A/S D/S Svendborg, 581 F2d 319).

      . We have considered plaintiffs other contentions and find them to be without merit.


text:
    In the Matter of Almon L. Wait, a Justice of the Waverly Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued January 10, 1986;
    decided February 11, 1986

      POINTS OF COUNSEL

      Donald T. Kinsella for petitioner.
    I. The Commission made findings of fact that were not based on the record before it. (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462.) II. The sanction of removal is too harsh, and a less drastic sanction should be imposed. (Matter of Steinberg, 51 NY2d 74; Matter of Lobdell v State Commn. on Judicial Conduct, 59 NY2d 338; Matter of Kelso, 61 NY2d 82; Matter of Cunningham, 57 NY2d 270.)

      Robert Tembeckjian, Gerald Stern and Jean M. Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Byrne, 47 NY2d [b]; Matter of Kane, 50 NY2d 360; Oakley v Aspinwall, 3 NY 547; People v Berry, 23 AD2d 955, 25 AD2d 955, 385 US 1017; Matter of Reedy, 64 NY2d 299.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Town Justice of the Town of Waverly, Franklin County, instituted this proceeding to review a determination of the State Commission on Judicial Conduct which found that he violated the Rules and Canons governing judicial conduct by presiding over cases involving relatives and that the appropriate sanction was removal from office. Petitioner asserts that the Commission improperly relied upon facts not in the record before it and that the sanction of removal was too harsh.

The complaint served upon petitioner contained six charges, each pertaining to a separate instance in which he presided over a case involving a relative within the degree of relationship proscribed by section 100.3 (c) (1) of the Rules Governing Judicial Conduct (22 NYCRR 100.3 [c] [1]) and, with respect to the first two charges, proscribed as well by Canon 3 (C) (1) of the Code of Judicial Conduct. The first two charges alleged that petitioner had disposed of two tickets for speeding issued to, respectively, his nephew and a niece of his wife by reducing each charge to an equipment violation.

The other four charges pertained to petitioner’s presiding over four prosecutions against different first cousins of his wife. In two of these cases — one charging a Vehicle and Traffic Law violation and the other an Environmental Conservation Law violation — petitioner accepted a guilty plea and imposed an unconditional discharge. The third case involved a charge of trespassing in violation of Penal Law § 140.05, and petitioner accepted a guilty plea and imposed no fine or sentence other than to require the defendant to stay off of the property of the complaining witness. In the fourth case the defendant was charged with the misdemeanor of criminal mischief in violation of Penal Law § 145.00. Petitioner accepted a guilty plea, imposed a fine of $50 but waived payment of it, sentencing the defendant instead to perform labor for the town.

Petitioner appeared and testified before a member of the Commission. While admitting that he was aware of the requirement that he disqualify himself in cases involving relatives, he expressed uncertainty as to how to calculate degrees of relationship, although this subject was covered in his training sessions. Petitioner also stated that he saw no need to disqualify himself in such cases as he claimed he treated his relatives no differently than other defendants.

Petitioner and the Administrator of the Commission subsequently entered into an agreed statement of facts whereby petitioner waived his right to the hearing provided by Judiciary Law §44 (4), and acknowledged having violated the provisions of the Rules and Canons pertaining to disqualification in matters involving relatives by presiding over the six cases set forth in the complaint.

The Commission sustained all six charges in the complaint, finding that petitioner had violated sections 100.1, 100.2 and 100.3 (c) (1) of the Rules Governing Judicial Conduct and Canons 1, 2 and 3 (C) (1) of the Code of Judicial Conduct. It stated further in its determination that petitioner "exacerbated his misconduct by hearing several of the matters outside the presence of a prosecutor and by granting, on his own motion, reductions of the charges or the penalties based on personal considerations without obtaining the consent of a prosecutor”, and concluded that the appropriate sanction was removal from office.

Petitioner asserts that the presence or absence of the prosecutor was only at issue in the two speeding ticket cases and that the record shows that there was a reduction of charges without the specific consent of the prosecutor in one case. He further contends that the District Attorney of Franklin County authorized the local criminal court justices to dispose of prosecutions for violations under the Penal Law and Vehicle and Traffic Law charges without the presence of the prosecutor. He thus asserts that the determined sanction was based in part on improper considerations and unsupported conclusions.

We need not determine whether petitioner, with respect to the six cases referred to in the complaint, acted without the presence of a prosecutor on more than one occasion, nor whether the District Attorney had impliedly consented to petitioner’s reduction of charges in the speeding ticket cases or his disposition of the other matters. Petitioner has admittedly presided over six cases involving relatives in violation of the Rules and Canons, and this alone makes removal the appropriate sanction. The District Attorney did not consent to petitioner disposing of prosecutions against relatives, nor in any event could a prosecutor immunize such conduct.

It was not necessary for the Administrator of the Commission to demonstrate that petitioner treated his relatives more favorably than other defendants facing similar charges. The handling by a judge of a case to which a family member is a party creates an appearance of impropriety as well as a very obvious potential for abuse, and threatens to undermine the public’s confidence in the impartiality of the judiciary. Any involvement by a judge in such cases or any similar suggestion of favoritism to family members has been and will continue to be viewed by this court as serious misconduct (see, e.g., Matter of Reedy, 64 NY2d 299; Matter of Sims, 61 NY2d 349).

Accordingly, the determined sanction of removal should be accepted, without costs.

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

Determined sanction accepted, without costs, and Almon L. Wait is removed from his office of Justice of the Waverly Town Court, Franklin County.


text:
    In the Matter of Prudential Property and Casualty Insurance Company, Respondent, v Marjorie Hobson et al., Appellants.
    Decided February 11, 1986

      APPEARANCES OF COUNSEL

      Larry E. Ribowsky and Joseph Greene for appellants.

      Norman H. Dachs for respondent.
   OPINION OF THE COURT

Per Curiam.

The requirement of "physical contact” in the definition of "hit-and-run automobile” contained in the uniform uninsured motorist indorsement is a matter of coverage, not exclusion from coverage.

Respondents, Marjorie Hobson and Vivian Belasco, were in an automobile accident involving an unidentified driver, who made an illegal turn in front of their car. In attempting to avoid a collision, respondents spun out of control and collided with another vehicle which was in turn struck by yet another car. The unidentified vehicle sped away. Respondents filed notices of intention to make claim and demands for arbitration under the uninsured motorist indorsement to the insurance policy of respondent Hobson, the driver. The indorsement, in providing coverage for injury resulting from an accident with a "hit-and-run automobile,” defined such a vehicle as "an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident”. Respondents stipulated that there was no physical contact with the unidentified vehicle.

Petitioner insurer issued no disclaimer of liability or denial of coverage (see, Insurance Law § 3420 [d] [formerly § 167 (8)]), but instead instituted a special proceeding to stay arbitration on the ground that there was no coverage because there was no physical contact between the two vehicles in the accident. Special Term dismissed the petition and directed the parties to proceed to arbitration, concluding that the requirement of physical contact was an exclusion rather than a matter of coverage. The Appellate Division reversed and granted the petition, on the ground that coverage does not exist in the absence of physical contact, and the insurer’s failure to disclaim cannot itself create coverage.

The conclusion that physical contact goes to coverage, rather than exclusion, is supported by the contract, the Insurance Law and case law. A "hit-and-run automobile” by definition exists only when there is the specified physical contact. This definition appears in the "Insuring Agreements” section of the indorsement rather than "Exclusions,” and is taken from former section 167 of the Insurance Law (since substantially reenacted as § 3420 [¶] [3]), which requires physical contact with a hit-and-run automobile before various protections of that section apply to any cause of action by an insured. No coverage exists in the absence of the required contact (see, Matter of Smith [Greater Am. Ins. Co.], 29 NY2d 116, 122 [Fuld, Ch. J., concurring]; MVAIC v Eisenberg, 18 NY2d 1, 4). There being no coverage here, the Appellate Division correctly concluded that arbitration should be stayed even in the absence of a disclaimer (see, Zappone v Home Ins. Co., 55 NY2d 131).

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

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

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