text:
    In the Matter of Richard A. Hennessy, Jr., as District Attorney for the County of Onondaga, Respondent, v Walter T. Gorman, as Supreme Court Justice for Onondaga County, Appellant, et al., Respondents.
    Argued January 12, 1983;
    decided January 18, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley and Peter H. Schiff of counsel), for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Girando and Gail N. Uebelhoer of counsel), respondent pro se.

      Morris B. Swartz for Jessie Neal, respondent.

      Lawrence M. Ginsburg for Willie Carter, respondent.
   OPINION OF THE COURT

Judgment reversed, without costs, and the petition dismissed. An article 78 proceeding generally does not lie to review error claimed to have occurred in a criminal proceeding. (See Matter of State of New York v King, 36 NY2d 59.)

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Pasquale Fava, Also Known as Patsy Fava, Respondent.
    Argued January 7, 1983;
    decided January 18, 1983

      APPEARANCES OF COUNSEL

      Donald, O. Chesworth, Jr., District Attorney (Kenneth R. Fisher of counsel), for appellant.

      Alfred P. Kremer for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

The reversal at the Appellate Division was based on that court’s determination that the charge to the jury with reference to defendant’s unexplained flight from the police officers was erroneous. Inasmuch, however, as defendant’s exception to the charge was not adequate to preserve that issue for appellate review, the determination at the Appellate Division was necessarily made as a matter of discretion in the interest of justice (CPL 470.15, subd 3, par [c]) and thus is not appealable to our court (CPL 450.90, subd 2, par [a]; People v Dercole, 52 NY2d 956).

Appeal dismissed in a memorandum.


text:
    In the Matter of Chemical Bank, Appellant, v Edward V. Regan, as Comptroller of the State of New York, Respondent.
    Decided January 18, 1983

      APPEARANCES OF COUNSEL

      Alvin Goldstein for appellant.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 581).

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


text:
    In the Matter of Kim W. and Others. John B. et al., Respondents; Commissioner of Social Services of the City of New York et al., Appellants.
    Argued January 10, 1983;
    decided January 18, 1983

      APPEARANCES OF COUNSEL

      William J. Manning, Roy L. Reardon, Edward J. Nowak and John N. O’Shea for Spence-Chapin Services to Families and Children, appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Leonard Koerner of counsel), for Commissioner of Social Services, appellant.

      Stanley A. Bass, Mark H. Spires and Patricia M. Callahan for respondents.

      Susan Larabee, Lenore Gittis, Janet R. Fink and Kay McNally, Law Guardian.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, for the reasons stated by Justice Arthur Markewich in his dissent at the Appellate Division. In addition we note that the question as to whether periodic court review presently required for children placed in foster homes (Social Services Law, § 392) should be extended to children placed for adoption, is the subject of recent study by at least one legislative commission (see Proposal for Voluntary Foster Care Placement and Review Proceedings in Family Court, by the New York State Temp Comm to Recodify the Family Ct Act, pp 17-18 [1982]).

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

Order reversed, without costs, petitions dismissed and question certified answered in the negative in a memorandum.


text:
    Maria Lauer, Doing Business as Cassandra Realty, Appellant, v R. Francis Dupreau et al., Respondents.
    Argued January 11, 1983;
    decided January 18, 1983

      APPEARANCES OF COUNSEL

      Gerald A. Harley for appellant.

      McGovern, Kehoe, Mitchell & Kelleher for respondent R. Francis Dupreau, precluded.

      William L. Nikas for respondent Margaret Sprague, precluded.
   OPINION OF THE COURT

On plaintiff’s appeal as against defendant Sprague: Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (87 AD2d 659).

On plaintiff’s appeal as against defendant Dupreau: Appeal dismissed, without costs, upon the ground that the order of the Appellate Division, insofar as it affirmed the denial of summary judgment to plaintiff against defendant Dupreau and denied plaintiff’s motion to dismiss defendant Dupreau’s second counterclaim, does not finally determine the action as to said defendant.

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


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park, Urban Renewal Project II. Peter Reiss et al., Respondents.
    Decided January 18, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Peter A. Mound of counsel), for appellant.

      Ignatius John Mileto and Michael J. Greco for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. The findings of the Appellate Division more nearly comport with the weight of the evidence.

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


text:
    In the Matter of Waldbaum’s #122, Inc., Appellant, v Board of Assessors of the City of Mount Vernon et al., Respondents.
    Decided January 18, 1983

      APPEARANCES OF COUNSEL

      Michael T. Schroder for appellant.

      Joseph S. Ragno, Corporation Counsel (Jerold S. Slate of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s failure to file a note of issue within four years from service of the 1977 petition or to obtain a stipulation or court order within the four-year period extending its time for filing required dismissal of that petition. Not only is section 718 of the Real Property Tax Law phrased in mandatory terms (“Unless a note of issue is filed * * * an order dismissing the petition shall be entered without notice and such order shall constitute a final adjudication of all issues raised in the proceeding” [emphasis supplied]) (see Matter of King v Carey, 57 NY2d 505; Gonkjur Assoc. v Abrams, 57 NY2d 853; Matter of Albano v Kirby, 36 NY2d 526), but also the statute was a re-enactment of a previously repealed provision and was enacted “to restore the four year limitation for judicial proceedings to review tax assessments,” and to require that “some action must be taken during the four-year period to indicate that the issues are still alive” (Memorandum of Assemblyman Milton Jonas, sponsor of the bill, NY Legis Ann, 1976, p 346), in order to relieve court congestion and to reduce the fiscal problems occasioned by the pyramiding of review proceedings on the same parcel that otherwise occurred (id.). Section 718 of the Real Property Tax Law is, therefore, distinguishable from former rule 302 of the Rules of Civil Practice (now CPLR 3404) considered in Marco v Sachs (10 NY2d 542) in that both its wording and its legislative history demonstrate the intention, not found in Marco, “to have the rule rigidly applied irrespective of any and all circumstances” (10 NY2d, at p 550). Nor could settlement discussions conducted after the four-year period had elapsed without either filing or an extension revive petitioner’s right to proceed on the abandoned petition.

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

On review of submissions pursuant, to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Susanne B. Auble, Appellant, v William J. Auble, Respondent.
    Submitted December 20, 1982;
    decided January 18, 1983
   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 (see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 36, p 144).


text:
    Bay Ridge Community Council et al., Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents. (And Three Other Titles.)
    Decided January 18, 1983
   Appeals transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Second Department. 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:
    Chemical Bank, Respondent, v Nicholas Econ et al., Appellants.
    Submitted December 20, 1982;
    decided January 18, 1983
   Motion for leave to appeal dismissed upon the ground that it does not lie (CPLR 5602).


text:
    The People of the State of New York, Respondent, v Michael Clements, Appellant.
    Decided January 18, 1983
   Appeal dismissed, by the Court of Appeals sua sponte, upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).


text:
    In the Matter of Gregory H., Appellant.
    Submitted November 1, 1982;
    decided January 18, 1983
   Motion denied insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed a dispositional order of Family Court. Motion dismissed insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed an order of the Family Court denying a motion to modify the dispositional order, upon the ground that part of the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Royal C. Howard et al., Appellants, v George M. Hachigian et al., Respondents.
    Submitted January 11, 1983;
    decided January 18, 1983
   Motion to vacate the Court of Appeals order of dismissal dated October 5, 1982, etc., denied, with $20 costs and necessary reproduction disbursements. [See 57 NY2d 955.]


text:
    In the Matter of the Application of George King, Appellant, et al., Petitioner, v Richard Gregorie et al., Respondents.
    Submitted December 13, 1982;
    decided January 18, 1983
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine any proceeding or action within the meaning of the Constitution (see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 27, p 110; § 36, p 147).


text:
    Everett J. Krantz et al., Appellants, v Albert Mendel & Son, Inc., et al., Respondents, et al., Defendant. (Action No. 1.) Everett J. Krantz et al., Appellants, v Evi Scholz et al., Respondents, et al., Defendant. (Action No. 2.)

      Submitted December 20, 1982;
    decided January 18, 1983
   Motions to dismiss amended notice of appeal and jurisdictional statement denied. Motion to dismiss appeal granted in part and denied in part, and so much of the appeal as pertains to Action No. 2 dismissed, without costs, upon the ground that the order appealed from does not finally determine Action No. 2 within the meaning of the Constitution.


text:
    Frank Collucci, Respondent, v Rachel Collucci, Appellant.
    Argued January 3, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      William N. Carroll and Eugene J. Fox for appellant.

      Louis A. Brevetti and Joel B. Hirsch for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court dismissing the complaint, reinstated.

Associated with but separate from two pending cross actions between the parties for divorce, plaintiff husband instituted the present action to impose a constructive trust on three parcels of land, record title to which is in the name of defendant wife. He sought a direction that the properties be conveyed to him or in the alternative that he be awarded damages. Following a nonjury trial, the court held the evidence insufficient to establish a constructive trust and dismissed the complaint. On appeal, the Appellate Division agreed that, because of the failure of the husband’s proof, the trial court had properly denied his prayer for a constructive trust. That court, however, determined that in the circumstances shown the husband was entitled to an equitable lien to the extent of 50% of the value of each of the three parcels.

The theory of recovery based on a claim of an equitable lien, as distinguished from that of a constructive trust, was not pleaded or raised in the trial court. Defendant wife never had an opportunity to seek disclosure or to introduce evidence to rebut the fact or to dispute the extent of any asserted equitable lien. Additionally she plausibly asserts that had the husband advanced any such theory she would have pleaded the six-year Statute of Limitations as a bar to his claim for such equitable relief (CPLR 213, subd 1). Nor, we are informed by the wife without refutation by the husband, was any such theory of recovery advanced by him at the Appellate Division.

In these circumstances, notwithstanding the powers of a court, in this instance the Appellate Division, to fashion equitable relief appropriate to the proof submitted without regard to any deficiency in pleading (see, also, CPLR 3017, subd [a]), such powers may not be exercised to grant relief on a new theory of recovery first introduced by the appellate court against a party who has had no notice or opportunity to defend against that theory.

Nor may we on this appeal by the wife consider the principal contention that the husband advances before us — that in any event the evidence in this record is sufficient to warrant the imposition of a constructive trust oh the entire property. There being no appeal by him from the order of the Appellate Division, he may not obtain affirmative relief in our court. Nevertheless, the husband may present arguments for the purpose of sustaining the relief that he received from the Appellate Division. Inasmuch as there is an affirmed finding that the wife did not promise to reconvey the property, the husband has no right to a constructive trust and that theory does not serve to support the disposition made at the Appellate Division.

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

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


text:
    In the Matter of Jerry R. Cole, Appellant, v William W. Serra, as Allegany County Court Judge, et al., Respondents.
    Argued January 4, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Paul J. Cambria, Jr., and Mary Good for appellant.

      George F. Francis, District Attorney (Warren M. Emerson of counsel), respondent pro se.

      Robert Abrams, Attorney-General, for William W. Serra, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

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

Following petitioner’s testimony as a witness before a 1980 Grand Jury investigating an alleged arson, that Grand Jury was instructed with respect to possible charges of criminal contempt and perjury against him. In consequence, the Grand Jury directed the District Attorney to indict petitioner for criminal contempt but not for perjury. The District Attorney subsequently determined, however, that the evidence would not support a criminal contempt charge and asked that that charge be dismissed.

In July, 1981, the arson charge was resubmitted to a new Grand Jury pursuant to leave granted when the original arson indictment was dismissed. Again petitioner was called as a witness, and he gave testimony substantially paralleling that which he had given before the first Grand Jury. On this occasion the 1981 Grand Jury indicted him for perjury.

Petitioner moved to dismiss the indictment on the ground that the People had failed to obtain authorization to “resubmit” the perjury charge pursuant to CPL 190.75 (subd 3) which provides in pertinent part: “When a charge has been so dismissed [by the Grand Jury], it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.” When that motion was denied, petitioner instituted the present article 78 proceeding in the nature of prohibition. The Appellate Division dismissed the proceeding. We affirm the dismissal, on the merits.

Prohibition is available in the circumstances presented in this record (Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179; People ex rel. Flinn v Barr, 259 NY 104, 108).

Authorization for resubmission, however, was not required in this instance, and the provisions of CPL 190.75 (subd 3) have no application. If we assume, without deciding, that the failure of the 1980 Grand Jury to indict was the equivalent of a dismissal for the purposes of the statute, the statute is nonetheless inapplicable inasmuch as the charge against petitioner presented to the 1981 Grand Jury was not the charge against him that had been presented to the 1980 Grand Jury. It is true that the substantive charge of arson being considered by the 1981 Grand Jury arose out of the same transaction as that which underlay the arson presentment made to the 1980 Grand Jury. As to the charges of perjury, however, the situation is entirely different. The original charge was based on testimony given before the 1980 Grand Jury; the perjury charge for which the 1981 Grand Jury indicted defendant was with respect to a different crime committed on a different occasion — the giving of false testimony before the 1981 Grand Jury nearly a year later. That the content of defendant’s testimony on the two occasions was parallel or even identical does not in any way diminish the fact that there were two separate and discrete criminal transactions — the alleged swearing falsely before the 1980 Grand Jury and the alleged swearing falsely before the 1981 Grand Jury. The present indictment is based on the latter, new offense and did not constitute a “resubmission” of the original charge.

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

Judgment affirmed, without costs, in a memorandum.


text:
    Walter J. Willard, Sr., et al., Appellants, v James Mercer et al., Respondents.
    Argued January 6, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Edward J. Grogan for appellants.

      Thomas D. Latin for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this case, in which time was not made of the essence in the contract of purchase and sale, the prospective purchasers neither sought to fix a law day for the closing of title nor afforded the sellers a reasonable opportunity to remedy a concededly curable defect of title before repudiating the contract. In this circumstance the buyers were not entitled to a refund of their down payment.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v John Gregory Ardito, Respondent.
    Argued January 5, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Steven R. Kartagener and Alan D. Marrus of counsel), for appellant.

      Arnold D. Roseman and Peter J. Peluso for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Justice John Carro at the Appellate Division (86 AD2d 144). In addition, we note that the District Attorney conceded on oral argument that there is no remaining evidence which would support a conviction of the defendant and therefore dismissal of the indictment is appropriate (cf. People v Bouton, 50 NY2d 130, 136; People v Malagon, 50 NY2d 954).

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


text:
    The People of the State of New York, Appellant, v Patricia Cohen, Respondent.
    Argued January 4, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Anthony Joseph Servino of counsel), for appellant.

      Herman Kaufman, Richard M. Asche, Jack T. Litman and Russell M. Gioiella for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In granting the defendant’s motion to suppress, the County Court expressly found not only that the defendant’s consent to the initial entry did not extend to the ones the police effected on the following morning and thereafter, but that there was no basis in the evidence for the application of the emergency doctrine to justify re-entry. These findings have support in the record and, having been affirmed by the Appellate Division, are not subject to further review of this court (People v Fernandez, 58 NY2d 791; People v Harrison, 57 NY2d 470). Moreover, absent a warrant, the re-entry was not sanctioned, without more, by the mere fact that a homicide was being investigated (see Mincey v Arizona, 437 US 385; People v Knapp, 52 NY2d 689, 694). The motion to suppress, therefore, was properly granted. For this reason, we have no occasion to pass upon the alternative theory on which the County Court also premised its determination, i.e., the legal conclusion that, once the defendant to the knowledge of the police had retained counsel, she no longer could “waive further her rights without the presence of counsel to permit the continuing search”.

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

Order affirmed in a memorandum.

       The motion was made following our reversal of the conviction based upon evidentiary errors committed at trial (50 NY2d 908, mot for rearg den 50 NY2d 1060). There was no abuse of discretion in entertaining the motion to suppress for the first time upon remand (cf. People v Fuentes, 53 NY2d 892).


text:
    The People of the State of New York, Respondent, v Bruce Butt and Robert Sutton, Appellants.
    Argued January 7, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Susan G. Kellman for appellants.

      Elizabeth Holtzman, District Attorney (Sarah Noll, Barbara D. Underwood, Jane S. Meyers and Karen M. Wigle of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at Appellate Term (113 Misc 2d 538).

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


text:
    Betty Wingerter, as Administratrix of the Estate of Peter P. Wingerter, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 54724.)
    Argued January 10, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Henderson G. Riggs, Peter H. Schiff and Jeremiah Jochnowitz of counsel), for appellant.

      Sheldon Hurwitz and Dan D. Kohane for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this wrongful death action, brought on the theory that the State was negligent in designing, constructing and maintaining a highway, it cannot be said as a matter of law that the findings on negligence and causation made by the Court of Claims and affirmed by the Appellate Division are not supported by the record as a whole (see Padula v State of New York, 48 NY2d 366, 371). All the more is this so since “in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” (Noseworthy v City of New York, 298 NY 76, 80).

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

Judgment appealed from, etc.


text:
    In the Matter of Barbara Merritt, Appellant, v Fred Way, Respondent.
    Argued January 6, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Abraham Hecht for appellant.

      Fred Way, respondent pro se.

      Barbara H. Dildine and Lenore Gittis, Law Guardians.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. In a custody contest between parent and non-parent, the question of best interests is not reached absent a showing of surrender, abandonment, unfitness, persistent neglect or other extraordinary circumstance (Matter of Bennett v Jeffreys, 40 NY2d 543). The Family Court found that petitioner’s evidence did not establish extraordinary circumstances. That finding having been affirmed by the Appellate Division is beyond our power of review (Laufer v Ostrow, 55 NY2d 305).

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

Order affirmed, with costs, in a memorandum.


text:
    Gillette Shoe Company, Inc., et al., Appellants, v City of New York et al., Respondents, et al., Defendant. Riverside Housewares, Inc., Appellant, v City of New York et al., Respondents. Lillian Waldman, Inc., Appellant, v City of New York et al., Respondents. Peter Magnone, Appellant, v City of New York et al., Respondents. Arsol Management Co., Appellant, v City of New York et al., Respondents. (And Another Action.)
    Argued January 3, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Herman Schmertz, Sillik Polayes and Joseph Gaier for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Francis F. Caputo of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

While a municipality is responsible for maintaining and repairing its water mains, it is not an insurer of its system. (Jenney v City of Brooklyn, 120 NY 164.) Where a third party such as Consolidated Edison Company of New York, Inc., has excavated near those water mains, the city has a duty to inspect the utility’s activities only if those activities can be considered dangerous. (De Witt Props. v City of New York, 44 NY2d 417, 425.)

Since the installation of pipes by trained utility employees ordinarily poses no risk to existing water mains (De Witt Props. v City of New York, supra, at p 425), it cannot be said that the installation in 1926 by Con Ed of the ducts at issue here posed a risk to the city’s water mains. Consequently, the city had no duty to inspect its pipes at the time the ducts were installed and cannot be held liable for failing to so inspect.

With respect to plaintiffs’ claim that the city was negligent in failing to conduct tests to discover anaerobic bacterial corrosion, it is settled that “unless there is some warning of a possible defect the public or private supplier of water is not obligated to tear up the streets to inspect its pipes.” (De Witt Props. v City of New York, supra, at p 424.) While it is true that the city could have conducted tests that might have detected" the presence of anaerobic bacteria without tearing up the streets, the procedure for doing so would have required that the city drill test holes at regular intervals along thousands of miles of pipelines. Soil samples would then have had to be extracted and analyzed.

We do not believe it either necessary or desirable to impose such an onerous burden upon a municipality where there is no significant warning of a possible defect. Since the city had no such warning and therefore had no duty to conduct tests for bacteria, liability cannot attach for its failure to do so.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Vincent Trerotola, as Trustee of Local 858 Off-Track Betting, Professional Clerical and Wagering Employees, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., Appellants, v New York City Off-Track Betting Corporation et al., Respondents.
    Argued January 5, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      Eugene S. Friedman and Barbara S. Mehlsack for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (86 AD2d 822).

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


text:
    Richard L. Liebeskind, Respondent, v Miriam S. Liebeskind, Appellant.
    Argued January 7, 1983;
    decided February 8, 1983

      APPEARANCES OF COUNSEL

      John H. Gross, Arthur S. Olick and Daniel N. Sang for appellant.

      Peter E. Bronstein and Richard Lee Wallace for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for reasons stated in the opinion by Justice David Ross at the Appellate Division (86 AD2d 207).

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


text:
    Dennis S. De Long, Individually and as Administrator of the Estate of Amalia De Long, Deceased, Respondent, v County of Erie et al., Appellants.
    Submitted December 27, 1982;
    decided February 8, 1983
   Motion to dismiss appeals denied.


text:
    Nancy Jancourtz et al., Respondents, and Daniel W. Joy, as Deputy Commissioner of the Department of Rent and Housing Maintenance of the City of New York, Intervenor-Respondent, v Helmsley-Spear, Inc., et al., Defendants, and North Assemblage Company et al., Appellants. Tudor City Association, Inc., et al., Respondents, and Daniel W. Joy, as Deputy Commissioner of the Department of Rent and Housing Maintenance of the City of New York, Intervenor-Respondent, v Helmsley-Spear, Inc., et al., Defendants, and North Assemblage Company et al., Appellants.
    Submitted December 20, 1982;
    decided February 8, 1983
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to intervenor-respondent, upon the ground that the order sought to be appealed from does not finally determine the actions and CPLR 5602 (subd [a], par 2) is not applicable.


text:
    Morgan Services, Inc., Respondent, v Lavan Corporation c/o Hotel Lafayette, Appellant.
    Submitted January 17, 1983;
    decided February 8, 1983
   Motion to dismiss appeal denied. An appeal taken as of right under CPLR 5601 (subd [a], par [iii]) brings up for review all aspects of the order from which the appeal arises (Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    The People of the State of New York, Respondent, v Jerry Singleton, Appellant.
    Submitted January 10, 1983;
    decided February 8, 1983
   Motion to vacate the Court of Appeals order of dismissal dated December 17, 1982 denied. [See 58 NY2d 780.]


text:
    In the Matter of Rubin Sterngass, Appellant, v Howard B. Gregory et al., Constituting the Zoning Board of Appeals of the Town of Woodbury, Respondents.
    Submitted January 10, 1983;
    decided February 8, 1983
   Motion for leave to appeal dismissed as untimely (CPLR 5513, subd [b]), with $20 costs and necessary reproduction disbursements.


text:
    Benjamin G. Sprecher et al., Appellants, v Dow Jones & Company, Inc., et al., Respondents.
    Argued January 12, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Benjamin G. Sprecher, appellant pro se, and for Maurice S. Roth, appellant.

      Ellen M. Martin and Robert D. Sack for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (88 AD2d 550).

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


text:
    In the Matter of the Estate of Joseph A. Ragone, Deceased. Antoinette Viscardi et al., Respondents, Josephine Ragone, Appellant.
    Argued January 12, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Hyman L. Rutman for appellant.

      Seth Rubenstein, Nathan F. Grossman and Merritt T. Viscardi for respondents.

      Stuart A. Summit and Guy R. Fairstein for Bertha K. Donson, amicus curiæ.

   OPINION OF THE COURT

Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the decree of the Surrogate’s Court, New York County, reinstated for reasons stated in the decision of former Surrogate Millard L. Midonick.

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


text:
    Buffalo Seminary, Appellant, v Michael L. McCarthy et al., Respondents. (And a Third-Party Action.)
    Argued January 12, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Jerrold S. Brown for appellant.

      Timothy A. McCarthy for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in Parts I and II of the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (86 AD2d 435).

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


text:
    Martin T. Connell, Appellant, v Robert Ellison et al, Defendants and Third-Party Plaintiffs-Respondents, and Hilbert F. La Pierre, Third-Party Defendant and Fourth-Party Plaintiff-Respondent. Mildred M. MacIntyre, Fourth-Party Defendant-Respondent.
    Argued January 6, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Charles A. Gardner for appellant.

      Case, Leader & Ayling for Robert Ellison and another, defendants-respondents.

      Sanders D. Heller for Hilbert F. La Pierre, third-party defendant-respondent.

      Mahlon T. Clements for Mildred M. MacIntyre, fourth-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 943). This disposition is without prejudice to either party, if so advised, making application to the trial court to obtain a definition of boundaries of the subject premises.

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


text:
    John C. Giordano, Jr., et al., as Executors of Robert J. Schmertz, Deceased, Appellants, v James G. McMurtry, Respondent, et al., Defendants.
    Decided February 10, 1983

      APPEARANCES OF COUNSEL

      Charles F. McGuire for appellants.

      Anthony M. Sola for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (90 AD2d 451). We would add only that service on the hospital administrator did not constitute personal service on defendant Dr. McMurtry pursuant to CPLR 308 (subd 1) (see Espy v Gloriando, 56 NY2d 640).

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


text:
    In the Matter of Rochester Telephone Corporation, Respondent, v Public Service Commission of the State of New York, Appellant.
    Argued January 3, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Sam Laniado and David E. Blabey for appellant.

      Michael T. Tomaino, Roger H. Kessel and Jonathan H. Winer for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly held that the commission did not have the authority, under subdivision 2 of section 113 of the Public Service Law, to order the petitioner to pass on to its customers the tax deduction resulting from its passing on of a tax refund. We express no opinion on whether the commission, in ruling on a general rate case, may order a passing on of the tax deduction, a question we need not reach on this appeal.

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of the Unified Court System, State of New York, Appellant. Lillian Roberts, as Industrial Commissioner, Respondent.
    Submitted January 4, 1983;
    decided February 10, 1983

      APPEARANCES OF COUNSEL

      Patricia P. Satterfield, Michael Colodner and Paul A. Feigenbaum for appellant.

      Robert Abrams, Attorney-General (Paul S. Shemin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the charges imposed by the respondent against the experience rating account of the Unified Court System with respect to city marshals should be canceled.

We agree that for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division (88 AD2d 717, 718), city marshals are independent contractors, not employees. We hold, further, that city marshals are local not State officers (see Public Officers Law, § 2), appointed by the Mayor, not paid by the State, and who, if they could be deemed “employees” of any governmental body, would, under the Unified Court Budget Act (Judiciary Law, § 39, subd 3, par [c]), remain employees of the city, not of the State. For both reasons, therefore, the charges imposed by respondent against the Unified Court System with respect to city marshals must be canceled.

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

Order reversed, etc.


text:
    In the Matter of Gonkjur Associates et al., Appellants, v Robert Abrams, as Attorney-General of the State of New York, Respondent.
    Decided February 10, 1983

      APPEARANCES OF COUNSEL

      Steven R. Lapidus for appellant.

      Robert Abrams, Attorney-General (Gerald Hurwitz of counsel), respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 854; see, also, Matter of Gonkjur Assoc. v Abrams, 57 NY2d 853; and Matter of Edge Ho Holding Corp., 256 NY 374, 381-382).

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


text:
    The People of the State of New York ex rel. Marcelino Julio, Also Known as Julio Marcelino, Appellant, v Wilson Walters, as Superintendent of Ossining Correctional Facility, et al., Respondents.
    Argued January 10, 1983;
    decided February 10, 1983
   Appeal dismissed, without costs, upon the ground that relator has been released from custody and, therefore, is not entitled to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Slavenburg Corporation, Respondent, v ESIC Capital, Inc., Appellant.
    Submitted January 31, 1983;
    decided February 10, 1983
   Motion, insofar as it seeks leave to appeal from Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from Appellate Division order denying reargument, etc., dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to respondent.


text:
    In the Matter of Francis J. Danielewicz, Appellant, v Norton Aurigema et al., as Commissioners of Elections in the County of Niagara, et al., Respondents.
    Decided February 10, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.9 [g]), appeal dismissed, without costs, for mootness. In view of the fact that the election has been held, the issues presented are moot (cf. Matter of Dusanenko v Le Fever, 56 NY2d 536).


text:
    Sylvester Leaks, Appellant, v Board of Elections of the City of New York, Respondent.
    Argued February 10, 1983;
    decided February 11, 1983
    APPEARANCES OF COUNSEL

      H. Spencer Kupperman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (James F. X. Hiler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and judgment granted declaring that at the special election to be held on February 15,1983 all persons who are then registered to vote in the 43rd Assembly District and who are then enrolled members of the Democratic Party are entitled to vote, and directing respondent Board of Elections of the City of New York to permit such voters to participate in the special election.

During the primary election on September 23, 1982, appellant and three others were candidates for the position of Male Member of the Democratic State Committee in the 43rd Assembly District. Thereafter, in another proceeding, appellant successfully challenged the election’s validity and obtained an order directing respondent here to hold a new election (see Matter of Leaks v Rosenfeld, 91 AD2d 685).

On January 26, 1983, respondent informed the candidates that the election, set for February 15,1983, would be limited only to voters eligible to participate in the September election in accordance with respondent’s long-standing practice. Appellant commenced an article 78 proceeding, which was deemed by Supreme Court to be an action for declaratory judgment. The court sustained the determination of the respondent and the Appellate Division affirmed.

The right to vote is one of the most important and cherished constitutional rights. Persons registered and otherwise currently eligible to vote for the party office involved should not be declared ineligible merely because an earlier election was held to be tainted (cf. Matter of Doherty v Mahoney, 42 NY2d 1069, 1071-1072). In brief, present voting status is the most appropriate yardstick for eligibility.

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

Order reversed, without costs, and judgment granted in accordance with the memorandum herein.


text:
    In the Matter of the City of New York, Respondent, v Vernor Christiansen et al., as Assessors of the Town of Wappinger, Appellants, and Beacon City School District, Intervenor-Appellant.
    Argued January 4, 1983;
    decided February 15, 1983

      APPEARANCES OF COUNSEL

      William G. Crane for appellants.

      Thomas P. Halley for intervenor-appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Gary Schuller, Edith I. Spivack and Antonin Tutter of counsel), for respondent.

      Robert Abrams, Attorney-General (Peter H. Schiff, Jeremiah Jochnowitz and Wayne L. Benjamin of counsel), in his statutory capacity pursuant to section 71 of the Executive Law.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (85 AD2d 663). Question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Thomas Paul Kaminski, Appellant.
    Decided February 15, 1983
    APPEARANCES OF COUNSEL

      George C. Cooley for appellant.

      D. Bruce Crew, III, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reversing the conviction of sodomy in the first degree and ordering a new trial as to the second and third counts of the indictment. The trial court erred in its charge to the jury on the definition of forcible compulsion. Although the indictment charged forcible compulsion “by means of physical force which overcame earnest resistance” only, over defendant’s objection the court erroneously charged that defendant could be found guilty if the jury found either such force or a threat placing the victim in fear of immediate death or physical injury.

The remaining portions of the order should be affirmed. Although the Appellate Division erroneously based its decision on the nonretroactivity of the Payton rule (Payton v New York, 445 US 573), reversal is nevertheless not required inasmuch as defendant’s affidavit in support of the motion to suppress is insufficient, as a matter of law, to support the ground alleged. (CPL 710.60, subd 3, par [b]; see, also, People v Grosfeld, 58 NY2d 887 [decided herewith].)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified and case remitted to Chemung County Court for a new trial on the second and third counts of the indictment in accordance with the memorandum herein and, as so modified, order affirmed.


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Monroe Grosfeld, Appellant.
    Argued January 4, 1983;
    decided February 15, 1983

      APPEARANCES OF COUNSEL

      John L. Pollok and Annette Ferstenberg for appellant.

      John J. Santucci, District Attorney (Barbara Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The record of the suppression hearing contains no evidence or factual findings supporting the defendant’s contention that the police illegally entered his home to take him into custody. Neither can it be said that the suppression court abused its discretion as a matter of law in denying the defendant’s motion to reopen the hearings following the Supreme Court’s decision in Payton v New York (445 US 573) since the defendant made no allegations of fact or offer of proof demonstrating the relevance of that decision to the circumstances of his case. Thus, although the Payton decision is entitled to retroactive effect (United States v Johnson, 457 US 537), there is no factual predicate for concluding that the defendant’s rights as announced in that decision have been violated (cf. People v De Mauro, 48 NY2d 892, 893; People v Charleston, 54 NY2d 622; People v Friola, 11 NY2d 157, 160).

We have considered the defendant’s other contentions and find no basis for reversing the conviction.

Meyer, J.

(dissenting). During the original suppression hearing defendant’s attorney asked for specific findings as to whether the Trial Judge accepted the police officer’s version or defendant’s version of what took place when he was arrested. Several months later, after the Supreme Court decided Payton v New York (445 US 573), he moved to reargue and during the colloquy on that motion he suggested that the court “find more of the .circumstances of how the arrest was made and how entry was gained by the police officer” and posed the question “whether or not there was a consent to having him come into the house or whether or not he came in because of the authority of his badge.”

The Trial Judge refused to make findings on that issue because he ruled that Payton was not to be given retroactive effect. He granted defendant’s motion for reconsideration but adhered to his original denial of suppression, but did so not in the exercise of discretion but on the basis of an erroneous ruling on the law. I would, therefore, remit for the making of additional findings and, because the People were denied the opportunity to put in opposing evidence by the retroactivity ruling, for the taking of additional evidence as well.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur; Judge Meyer dissents and votes to reverse in a separate memorandum in which Judge Fuchs-berg concurs.

Order affirmed, in a memorandum.


text:
    In the Matter of Muriel Lutwin, Respondent-Appellant, v Sarah Alleyne et al., Appellants-Respondents.
    Decided February 15, 1983

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Pamela Seider Dolgow of counsel), for appellants-respondents.

      Joel M. Lutwin for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be modified, with costs to appellants, by deleting the provision which adjudged that there is no basis for the charge that petitioner failed to co-operate with the evaluation committee’s request for a meeting and service complaint log and that the charge of insubordination against the petitioner was unfounded, and, as so modified, affirmed.

Although the subject hearing has been held, and the issue of petitioner’s entitlement to such hearing has therefore become moot, we retain jurisdiction of the appeal because the question is likely to affect a large number of cases on a continuing basis (People v Fuller, 57 NY2d 152, 156, n 2; Matter of Oliver v Posted, 30 NY2d 171, 177-178; cf. Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-718).

On the merits, review of the record establishes that, as a matter of law, the charges disseminated to the public did not in any way implicate petitioner’s good name, reputation, honor or integrity. Therefore, the Appellate Division erred in granting petitioner a name-clearing hearing (Board of Regents v Roth, 408 US 564, 573).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), judgment appealed from and order of the Appellate Division brought up for review modified, with costs to appellants-respondents, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Guss Hardeman, Respondent, v Mendon Leasing Corp., Appellant, et al., Defendants.
    Decided February 15, 1983

      APPEARANCES OF COUNSEL

      Harry Organek and Howard S. Davis for appellant.

      Norman Bard for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (87 AD2d 232). We add that (1) subdivision 3 of section 388 of the Vehicle and Traffic Law expressly makes the liability of lessor and lessee joint and several, and (2) there was no due process violation because the lessor’s agent gave permission in fact and had the authority under Hendon’s contract with Midtown to refuse to do so.

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


text:
    The People of the State of New York, Respondent, v Richard Livigni, Appellant.
    Decided February 15, 1983

      APPEARANCES OF COUNSEL

      Stephen R. Mahler for appellant.

      John J. Santucci, District Attorney (Ann B. Miele of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed for reasons stated in the opinion by Justice Guy J. Mangano at the Appellate Division (88 AD2d 386).

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


text:
    In the Matter of the Arbitration between Initial Trends, Inc., Appellant, and Campus Outfitters, Inc., Respondent.
    Decided February 15, 1983

      APPEARANCES OF COUNSEL

      Victor M. Metsch for appellant.

      Howard C. Friedman for respondent.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed. In the absence of a Federal statute governing method of service of a demand for arbitration, CPLR 7503 (subd [c]), which is consistent with the Federally created right to arbitrate (US Code, tit 9), is applied to these interstate transactions. The consequence of failure to strictly comply with the provisions of CPLR 7503 (subd [c]) in serving a demand for arbitration is to toll the time limit on an application to stay arbitration (Matter of Board of Educ. v Palmyra-Macedon Faculty Assn., 78 AD2d 765, mot for lv to app den 53 NY2d 603). A stay of arbitration on the ground that demand was ineffectual is, therefore, improper in a case such as this where petitioner obviously had actual notice of the demand to arbitrate and an opportunity, via this proceeding to stay arbitration, to judicially review its threshold objections to arbitrability.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York ex rel. Michael Escobar, Appellant, v Otis Bantum, as Warden, et al., Respondents.
    Submitted February 7, 1983;
    decided February 15, 1983
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the issues presented have become moot.


text:
    Kansas City Fire & Marine Insurance Company, Plaintiff, v Hartford Insurance Group et al., Respondents, and Jefferson Insurance Company of New York, Appellant.
    Submitted February 7, 1983;
    decided February 15, 1983
   Motion to clarify the Court of Appeals January 13, 1983 decision on motion for reargument, etc., denied with $20 costs and necessary reproduction disbursements. [See 58 NY2d 824.]

Judge Simons taking no part.


text:
    In the Matter of Pertico Murgia, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Decided February 15, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right (CPLR 5601).


text:
    The People of the State of New York, Appellant, v Alan Portnick, Respondent.
    Submitted November 29, 1982;
    decided February 15, 1983
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the reversal was not on the law alone or “upon the law and such facts which, but for the determination of law, would not have led to reversal”. (CPL 450.90, subd 2, par [a].)

Judge Meyer taking no part.


text:
    Angel Rodriguez et al., Appellants, v City of New York et al., Respondents.
    Decided February 15, 1983
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, for failure to timely perfect the appeal (22 NYCRR 500.7 [a]).


text:
    Victory Boulevard Associates, Appellant, v City of New York et al., Respondents.
    Argued January 6, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      John J. Turuey for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for City of New York and others, respondents.

      John C. Maloney, Jr., for Edward Destefanis, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Richmond County, reinstated.

In this article 78 proceeding, petitioner challenged the disapproval by the Board of Estimate of the City of New York of a zoning variance to permit the construction of a two-story commercial building in an area of Staten Island that was zoned residential. The Board of Estimate’s action overturned a grant of the variance by the city’s Board of Standards and Appeals (BSA).

Subdivision c of section 668 of the City Charter limits the Board of Estimate’s power to review the zoning determinations of the Board of Standards and Appeals to whether there was substantial evidence to support the BSA’s determination. In holding that the BSA’s grant of the variance was not supported by substantial evidence, the Board of Estimate concluded that petitioner failed to satisfy any of the five criteria required for a variance. A review of the record demonstrates, however, that petitioner established by substantial evidence that: there were unique physical characteristics to the lot that would create unnecessary hardship in complying with the zoning provisions; there would be no reasonable rate of return from the permitted use; a variance would not alter the essential character of the neighborhood; the hardship was not self-created; and the variance was the minimum necessary to afford relief. The Board of Estimate, therefore, erred in overturning the BSA’s determination, which was supported by substantial evidence.

Petitioner also challenges the city charter provisions authorizing Board of Estimate review of BSA determinations as unconstitutional. This claim has been examined and found to be wholly without merit.

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

Order reversed, etc.


text:
    In the Matter of Plainedge Federation of Teachers et al., Appellants, v Plainedge Union Free School District, Respondent.
    Argued January 11, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      David Schlachter for appellants.

      Lawrence W. Reich and Jerome H. Ehrlich for respondent.
   OPINION OF THE COURT

Memorandum.

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

This appeal arose out of a dispute over whether petitioner Sharon Licht, a permanent substitute teacher, was covered by the collective bargaining agreement between petitioner Plainedge Federation of Teachers and respondent school district, and, if covered, whether she was entitled to full sick leave benefits. Pursuant to the bargaining agreement’s grievance procedure, the dispute eventually proceeded to advisory arbitration. The arbitrator concluded that petitioner Licht was not covered by the agreement, and the district adopted the arbitrator’s decision as its own determination.

Petitioners then brought this article 78 proceeding to challenge the'" district’s action. Special Term vacated the determination as lacking a rational basis. The Appellate Division reversed and dismissed the petition, but on the ground that the parties by their conduct had converted the arbitrator’s award from an advisory to a binding determination. Applying the standard of review appropriate to arbitration awards, the Appellate Division concluded that the arbitrator’s award was not irrational.

The order of the Appellate Division should be affirmed, but on a different rationale. The collective bargaining agreement expressly provided that arbitration awards were advisory only, and the record discloses no conduct by the parties that would have converted the arbitrator’s award to a binding determination. Submitting to the arbitrator the issue of the agreement’s coverage was insufficient to effect such a conversion. Unlike the situation in Board of Educ. v Yonkers Federation of Teachers (46 NY2d 727) and Matter of Hempstead Classroom Teachers Assn. v Board of Educ. (79 AD2d 709), the parties here did not stipulate the remedy to be implemented or otherwise grant the arbitrator powers beyond those contained in the collective bargaining agreement.

The appropriate standard of review of the determination of the district, therefore, is that applicable to article 78 proceedings. Under this standard, it cannot be said as a matter of law that the district’s determination was arbitrary or capricious. Its determination, based in large part on “careful consideration [of] the recommendations of the Arbitrator” in accordance with the agreement of the parties (art IX, § 3, 3d Stage, par c) finds support both in the plain terms of the agreement and in the prior bargaining history between the district and union. The determination, therefore, was properly upheld.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Suraj Narayan, Appellant.
    Decided February 17, 1983

      APPEARANCES OF COUNSEL

      Anthony V. Lombardino for appellant.

      John J. Santucci, District Attorney (Barry A. Schwartz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The factual and procedural background of this appeal may be found in the opinions at the Appellate Division (76 AD2d 604, 88 AD2d 622) and the intervening opinion in our court (54 NY2d 106). For present purposes it must be taken that defendant’s cross-examination was interrupted on Monday afternoon, June 14, 1976, in part to permit the trial court to research the propriety of the last question posed by the People. On Tuesday morning, the contemplated research having been concluded, after a somewhat extended sidebar conference, the trial court ruled that he would permit the question. At that juncture, before defendant had resumed the witness stand, his attorney requested an opportunity to speak to him. The trial court pointed out that defendant was “on the stand” and ruled that he would not permit the requested consultation “while he’s testifying”. The Appellate Division held that this ruling did not constitute reversible error. We agree.

With no intention to diminish the constitutional stature and significance of a defendant’s right to consult with his attorney during the course of his trial, we recognize, too, that the attorney cannot be permitted freely to interrupt examination to permit him to counsel his client with respect to an anticipated question or line of questioning. The proper resolution lies within the sound discretion of the trial court. We agree with the majority at the Appellate Division that there was no abuse of such discretion by the trial court in this instance. While it is true that defendant was not physically sitting in the witness chair, in a functional sense his cross-examination had been interrupted to afford the trial court an opportunity to make a considered evidentiary ruling. That ruling having been made, it was not error to have directed that the cross-examination then continue without further interruption, particularly where a negative answer to the permitted question would have foreclosed further inquiry on the subject.

“This is not to say that defendant’s attorney in the instant case did not, or that defendants’ attorneys generally will not, realize the impropriety of advising defendant how to answer such a question. Rather, it is to say that it is not error for the Trial Judge in such a situation to make the ruling here made preventing conference until questioning on the issue has been concluded.” (54 NY2d 106, 117 [Meyer, J., concurring].)

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.


author: Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v Joseph Fripp, Respondent.
    Argued January 7, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      Robert Morgenthau, District Attorney (Joyce P. Adolfsen and Robert M. Pitler of counsel), for appellant.

      Edward M. Chikofsky and David Breitbart for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The findings that the defendant was arrested before the weapon was seized and that the police lacked probable cause both involve mixed questions of law and fact (People v Alexander, 37 NY2d 202; People v Williamson, 51 NY2d 801). Because these findings are supported by sufficient evidence they may not be set aside by this court (People v Harrison, 57 NY2d 470).

Fuchsberg, J.

(dissenting). On the facts in this case, as to which there can be no “real controversy” (Goncalves v Regent Int. Hotels, 58 NY2d 206, 218), the “mixed question of law and fact” concept is simply out of place. Rather, as the record here ineluctably dictates, denial of the motion to suppress the loaded gun of whose unlawful possession the defendant has been charged was mandated as a matter of law. My vote, therefore, must be to reverse.

This I say holding steadfast to the proposition that “one of our most hallowed rights — the ‘right of the people to be secure in their persons * * * against unreasonable searches and seizures’ ” — is a keystone of individual privacy and personal responsibility (People v De Bour, 40 NY2d 210, 227 [my dissenting opn]; NY Const, art I, § 12; US Const, 4th Arndt; see, also, e.g., People v Carrasquillo, 54 NY2d 248; People v Sobotker, 43 NY2d 559; People v Carney, 58 NY2d 51, 55 [my concurring opn]; People v Kinlock, 43 NY2d 832, 834 [my dissenting opn]; People v McLaurin, 43 NY2d 902, 904 [my dissenting opn]).

But, as often has been noted, in promoting this libertarian ideal and, no doubt, as part of the price for acceptance of its role as model, the Nation’s founding fathers struck a balance at a middle ground which, when police behavior is justified, respects society’s interest in law enforcement as well. If we are to be true to this equation, in my view the police action in the present case must be upheld (People v De Bour, supra, at p 227, citing Brinegar v United States, 338 US 160, 176). The undisputable facts tell us why.

In the early evening of February 28, 1980, pursuant to a Federal search warrant for specified drugs and a revolver, members of the New York City Police Department went to a second floor apartment of a “six or seven” ktory residential building in Manhattan. After gaining access to the apartment, where the record shows that the police had occasion to make prior arrests, they found the drugs described in the warrant. The gun, however, was not there.

While the officers were still on the premises, a buzzer rang in the apartment. This signaled that someone in the entranceway to the building at its street level desired admission. One of the officers responded by pressing a button, the conventional means by which a person in the apartment could release the lock on the building’s door so that a caller could enter. Within the brief time that one normally would expect it to take to reach the apartment from the entranceway, a man emerged from the only stairwell door opening onto the second floor hallway. This door was about eight feet from the entrance to the apartment, of which there were only two on that floor. No one else arrived at the second floor during this interval, either from the stairway or from the building elevator, from which a door also opened on this floor. In toto, then, there were but four doors opening onto the second floor hallway, one from the stairwell, one from the elevator and one from each of the two apartments.

As the defendant stepped through the stairwell door, two officers, stationed in the hallway, immediately noticed that the man coming through the stairwell door was carrying a brown leather bag in his left hand. This they recognized was of a type commonly used, even by police officers, to carry a gun. The officers, without drawing or exhibiting their own weapons, immediately identified themselves, whereupon defendant responded by turning away. The police then reached for the bag, which, after a short struggle, they succeeded in seizing, whereupon they found that it indeed contained a loaded revolver.

The circumstances in which the police found themselves at the time of the seizure are worth recapping. The apartment to which the warrant had directed them was one which, to their knowledge, had been the locus of prior arrests. The warrant itself indicated that the magistrate who issued it had made a judicial finding of probable cause to believe that its execution would unearth not only drugs, but a gun associated with the use of these premises. The magistrate’s findings having been corroborated as to the drugs, but the gun having not yet been discovered, it is difficult to comprehend how even the greenest of “rookies” on the police force could fail to be conscious of the real possibility that, if the gun was in fact not in the apartment, it was in the possession of one of the apartment’s habitus.

Consequently, when the apartment buzzer rang, the police, in the exercise of ordinary prudence, could not fail to assume that, unless the buzzer had been sounded mistakenly by one who was on his way to another part of the building, the caller might very well be the habitué who carried the gun. So, when a man exited through the second story stairwell door within the normal time it would take one who was buzzed in to come up the stairs, the possibility that the signaling of the apartment had been a mistake or that the one who had done the signaling was anyone but the person who had exited from the stairwell was all but gone. At this juncture, when the officers, in addition, saw the man was toting the kind of bag frequently used to carry a handgun, it would have been both an abuse of their duty as policemen as well as an affront to common sense for them to have failed to take steps to avoid the risk of having to determine whether the suspect or the officers were quicker on the draw.

It is to be remembered that in this case we are not dealing with a trial, where guilt or innocence is to be decided. Then, of course, a defendant must be given the benefit of any reasonable doubt, and, therefore, if the proof is consistent with innocence as well as guilt, the defendant must be acquitted. For, at that point in a criminal prosecution, if the view consistent with innocence and the view consistent with guilt are both reasonable, the People must lose (e.g., People v Montanez, 41 NY2d 53, 57).

But, at a suppression hearing, the question merely is whether the police acted reasonably under the circumstances. Thus, for such purposes, if there are two possible views as to whether a suspect possesses an illegal weapon, if both views are “reasonable”, i.e., objectively justifiable by the facts known to the officer at the time, the officer is free to act on the view consistent with guilt rather than innocence (People v Benjamin, 51 NY2d 267,271 [radio run advising police of man with gun; upon reaching the stated location, defendant, one of a crowd of 30, without more, in stepping back when the police approached, reached with empty hands to rear of waistband; held, officer does not have to “await the glint of steel before he can act to preserve his safety”]).

The confusion I find in the dispositions below becomes even more apparent when we realize that, at the time the gun was seized, though defendant’s freedom of movement to this extent was curtailed, he was not subjected to a full-blown search of his body of clothing. Nor was he put through a protective frisk, which would include a pat-down of his clothing. Instead, intrusion was limited to securing possession of the bag which the police, as we have seen, reasonably believed contained a deadly weapon. Since it did, however, partake of the character of a stop and frisk, giving it that full due, all that was required to justify it was a finding “that the officers could reasonably suspect that they were in danger of physical injury and that defendant posed a threat to their safety” (People v Chestnut, 51 NY2d 14, 21, cert den 449 US 1018; emphasis added).

In the present case, for instance, the intrusive police conduct did not rise to the level of an arrest (People v Chestnut, supra, at p 20 [frisk accomplished by ordering suspects to lie on ground as aid to stop and frisk justified by “reasonable suspicion”]). It follows that the analysis based, as it was in the courts below, on the probable cause to arrest standard was, to say the least, awry.

In fine, because, as a matter of law, the officers acted upon a reasonable suspicion in a legally permissible manner to insure their own safety, the gun they recovered from the defendant should not have been suppressed.

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

Order affirmed in a memorandum.

      . On argument of this appeal, defendant’s counsel conceded that there is no factual dispute.

      . Although not necessary for a determination that the officers, as a matter of law, had more than good reason to suspect that defendant was carrying a gun, the record, in addition, discloses that, when confronted by the police after emerging from the stairwell, the suspect immediately shifted the relationship between his hands and the bag. While the suppression Judge, in what has all the earmarks of a cursory, delivered-from-the-Bench ruling, made no finding on this matter one way or the other, the record tells us that one of the officers, who were the only two witnesses, testified that the suspect “had a bag in his left hand” and that “his two hands came together”, while the other described how he took the bag out of defendant’s “hands” when defendant’s “left arm” was raised with the case in it. It is odd, therefore, that the majority in the 3-to-2 affirmance at the Appellate Division was to say that “the suppression court rejected this testimony”.


text:
    In the Matter of Sweet Home Central School District, Respondent, v Sweet Home Education Association, Appellant.
    Decided February 17, 1983

      APPEARANCES OF COUNSEL

      Bernard F. Ashe and Emanual Tabachnick for appellant.

      Robert J. Feldman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (90 AD2d 683).

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


text:
    The People of the State of New York, Respondent, v Sammy Fulton, Appellant.
    Argued January 12, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      Abigail Everett and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Katherine N. Rose and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Even if we were to assume, as defendant contends, that his pro se demand for production or disclosure of the informant encompassed a request for an in camera inquiry-in accordance with the procedures outlined in People v Darden (34 NY2d 177, 181), the People’s inability to produce her at the hearing the Appellate Division directed did not mandate suppression of the items seized at the time of defendant’s arrest. For the record supports both the finding that the informant existed and that the People made diligent efforts to comply with the direction to find her (cf. People v Jenkins, 41 NY2d 307). Nor was it an abuse of discretion to deny the hearing. In sum, we find no reason to overrule the determination that, even absent disclosure, there was a sufficient showing of probable cause (People v Leyva, 38 NY2d 160, 172).

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

Order affirmed in a memorandum.


text:
    Richard Bossuk et al., Respondents, v Alfred Steinberg, Appellant.
    Decided February 17, 1983

      APPEARANCES OF COUNSEL

      Jules J. Ravo for appellant.

      Martin A. Wein for respondents.
   OPINION OF THE COURT

Memorandum.

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

CPLR 308 (subd 2) provides for delivery to “a person of suitable age and discretion” (other than the person to be served), while subdivision 1 provides for delivery to “the person to be served”. However, except for additional requirements not relevant here, the two subdivisions are identical. In particular, each subdivision provides for “delivering the summons”. Absent any indication to the contrary, therefore, we may assume that, by retaining the same delivery requirements in both subdivisions while amending CPLR 308 in other respects, the Legislature anticipated that, in this regard, judicial construction of both also would be the same (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 75, pp 162-163).

We have had occasion to hold that, under CPLR 308 (subd 1), delivery of a summons may be accomplished by leaving it in the “general vicinity” of a person to be served who “resists” service (McDonald v Ames Supply Co., 22 NY2d 111, 115). Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware that he is doing so (Levine v National Transp. Co., 204 Misc 202, 203, affd 282 App Div 720; Chernick v Rodriguez, 2 Misc 2d 891, 892). Concordantly, we hold that the delivery requirement of CPLR 308 (subd 2) may also be satisfied, as here, by leaving a copy of the summons outside the door of the person to be served upon the refusal of “a person of suitable age and discretion” to open the door to accept it, provided the process server informs the person to whom delivery is being made that this is being done. We add that no question has been raised concerning the fact that the youngsters, one 14 and the other 15, were of “suitable age and discretion”.

Moreover, we reject defendant’s contention that service which accords with our interpretation of the statute, as it was here, offends due process. It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice (Dobkin v Chapman, 21 NY2d 490, 502). It suffices that the prescribed method is one “reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action” (Mullane v Central Hanover Trust Co., 339 US 306, 314). The statute, as we read it, easily meets this standard.

Finally, we find equally without merit defendant’s contention that proof of the mailing of a copy of the summons, as further required by the statute, was lacking because the Sheriff’s employee who actually did so was not produced. The proof of the Sheriff’s regular course of business in this regard sufficed (Nassau Ins. Co. v Murray, 46 NY2d 828, 829).

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


text:
    In the Matter of Concerned Citizens against Crossgates et al., Appellants, and Sierra Club, Intervenor-Appellant, v Robert F. Flacke, as Commissioner of the New York State Department of Environmental Conservation, Respondent, and Pyramid Crossgates Company, Intervenor-Respondent.
    Argued February 8, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      Joel H. Sacks for appellants.

      Robert Abrams, Attorney-General (Kathleen Liston Morrison, Peter H. Schiff and James A. Sevinsky of counsel), for respondent.

      Donald S. Snider and Gerald M. Levine for intervenorrespondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (89 AD2d 759).

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


text:
    Henry H. Rice, Appellant, v Ritz Associates, Inc., Respondent.
    Argued January 11, 1983;
    decided February 17, 1983

      APPEARANCES OF COUNSEL

      Marvin E. Frankel, H. Richard Penn and Barry G. Felder for appellant.

      J. Irwin Shapiro and John Drew for respondent.
   OPINION OF THE COURT

Memorandum.

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (88 AD2d 513).

As to plaintiff’s contention that by virtue of the lease there was an effective transfer of the air rights of the Rice parcel to the Ritz parcel, thereby constituting an “incumbrance” on the Rice parcel within the contemplation of the appraisal procedure clause explicitly set forth in the lease which the prevailing appraisers failed to consider in their appraisal, we express no view with respect to it as this issue was not presented to or considered by the trial court. (Farr v Newman, 14 NY2d 183, 188; see, also, Telaro v Telaro, 25 NY2d 433, 438; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 162, p 631.)

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

Order affirmed, with costs, in a memorandum.


text:
    F. Edward Devitt, as a Member of the Orange County Legislature, Respondent, v Louis Heimbach, as County Executive of Orange County, et al., Respondents. Bahia Mehmet Bin Chambi, Intervenor-Appellant.
    Decided February 17, 1983

      APPEARANCES OF COUNSEL

      Claude Castro for intervenor-appellant.

      Gerald N. Jacobowitz for F. Edward Devitt, as a member of the Orange County Legislature, respondent.

      James G. Sweeney for Louis Heimbach, as County Executive of Orange County.
   OPINION OF THE COURT

Memorandum.

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

In Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury (55 NY2d 41), we held that the intent of the Legislature in adopting the State Environmental Quality Review Act (SEQRA) “was that the environmental impact statements required to be prepared by the local agency * * * with respect to any action which might have a significant effect on the environment should be accessible to members of the town board and public prior to action on the proposal in question.” (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, supra, at p 46.) This is as mandated by ECL 8-0109 (subd 2).

The statute also provides that: “As early as possible in the formulation of a proposal for an action, the responsible agency shall make an initial determination whether an environmental impact statement need be prepared for the action.” (ECL 8-0109, subd 4.) The regulations promulgated by the Commissioner of Environmental Conservation pursuant to ECL 8-0113 require in Type I actions, such as in this case, that either a determination of nonsignificance (6 NYCRR 617.10 [b]) or a determination of significance (6 NYCRR 617.10 [c]), the latter indicating that an environmental impact statement (EIS) will be prepared, be filed by the responsible local agency. If the agency determines that no significant effect on the environment will result from the proposed action, no EIS is required. This statutory and regulatory scheme contemplates as a first step, a review by the local agency to determine the effect the proposed action will have on the environment. Thus, only in those cases where the preliminary determination has been made that an action will have a significant effect will the legislative panel considering the action have before it an EIS. In all other cases, however, it should have before it the determination of nonsignificance prepared by the agency.

Our holding in Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury (supra) accordingly required that the town board have before it an EIS prior to passing resolutions concerning the creation and funding of the sewer district because, on the facts of that case, it was clear that the sewer district would have a significant impact on the environment.

In the present case, whether or not the sale of this county-owned property will have a significant impact on the environment is not clear. Regardless of its impact, however, Resolution No. 83 was not properly passed because the county legislature did not have prior to passing that resolution either an EIS or a determination of nonsignificance. As we noted in Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury (supra), such statements should be before the body considering the proposal prior to its consideration of and decision on that proposal.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.


text:
    Judith Roome, Appellant, v Norman S. Roome, Jr., Respondent.
    Decided February 17, 1983
   On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), appeal dismissed in its entirety, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Herman Bugge, Appellant, v Harold W. Sweet, Respondent.
    Submitted January 31, 1983;
    decided February 17, 1983
   Motion to dismiss appeal denied.


text:
    Conklin Development Corp., Appellant, v Acme Markets, Inc., et al., Respondents.
    Submitted January 24, 1983;
    decided February 17, 1983
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with costs, upon the ground that the modification at the Appellate Division is not substantial (CPLR 5601, subd [a], par [iii]). Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.


text:
    Federal Deposit Insurance Corporation, Respondent, v Matthew M. Russo et al., Appellants.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Matthew M. Russo, appellant pro se, and for Ivan H. Wohlworth and others, appellants.

      Jay A. Katz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (89 AD2d 575).

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


text:
    Long Island City Savings and Loan Association, Appellant, v Judith Gottlieb et al., Respondents.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Joseph A. Mule for appellant.

      Seymour Howard and Stanley P. Amelkin for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order modified, with costs to appellant, to the extent of reinstating the complaint insofar as it seeks damages and, as so modified, affirmed. Contrary to the determination by the Appellate Division, to the extent that the complaint seeks damages, a viable claim is presented despite the payment of the mortgage indebtedness. Nothing in section 278 of the Debtor and Creditor Law militates against recognition of the associated but separate claims asserted in the complaint.

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


text:
    The People of the State of New York ex rel. Joseph Grillo, Appellant, v Elizabeth Holtzman, as District Attorney of Kings County, et al., Respondents.
    Decided February 23, 1983

      APPEARANCES OF COUNSEL

      Barry G. Bell for appellant.

      Elizabeth Holtzman, District Attorney (Julie R. Fischer of counsel), respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (91 AD2d 983).

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