text:
    In the Matter of the Estate of Domenick Cassone, Deceased. John D. Cassone et al., as Executors of the Estate of Domenick Cassone, Deceased, Appellants; Rocco R. Cassone et al., Respondents.
    Decided September 20, 1984

      APPEARANCES OF COUNSEL

      Robert C. Mirone for appellants.

      Jay F. Gordon for respondents.
   OPINION OF THE COURT

Memorandum.

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

The three Cassone brothers owned equal shares in the stock of several closely held corporations and equal interests in a partnership. The brothers executed an agreement dated December 20, 1978 governing their rights and relations with respect to the four businesses, denominated the Corporation. The agreement obligates the Corporation on the death of any of the brothers to purchase and the decedent’s estate to sell all the decedent’s stock to the Corporation. The contract contains a broad arbitration clause covering any dispute under the agreement.

Following Domenick Cassone’s death in September of 1982, his estate rejected an offer by the Corporation to buy his shares and demanded payment of certain bonuses and dividends. Negotiations to resolve the dispute proved fruitless, and appellants, executors of the estate, thereafter commenced this proceeding to compel respondents to submit to examinations and produce their records to aid in bringing an action to obtain an accounting and appropriate distribution of the Corporation’s profits and dividends. Respondents served a demand for arbitration and moved to direct the parties to proceed to arbitration and to stay all further judicial proceedings pending arbitration. Appellants cross-moved to stay arbitration asserting three claims that the arbitration agreement was invalid. Supreme Court referred the motions for a hearing on whether there was a valid agreement to arbitrate, and the Appellate Division reversed, directed the parties to proceed to arbitration and stayed further judicial proceedings.

Appellants’ first claim that the arbitration agreement is invalid is that the contract was prepared by a single attorney who represented all parties as well as being counsel to the Corporation and Rocco Cassone, and that the document did not constitute a true meeting of the minds of all the parties. To the extent that the first branch of this claim may be said to raise an issue with respect to the validity of the arbitration agreement (which could be decided by the court on a motion to compel or stay arbitration pursuant to CPLR 7503, subd [a]), appellants have failed to raise a “substantial question” in the absence of elaboration. Any issue as to the validity of the substantive provisions of the contract (including its failure to reflect a meeting of the minds) would be for the arbitrator (see Matter of Weinrott [Carp], 32 NY2d 190, 198). Appellants’ bare allegation of joint representation would not warrant a hearing to invalidate the arbitration clause in the absence of some allegation of conflict of interest or overreaching (cf. Levine v Levine, 56 NY2d 42, 48; Code of Professional Responsibility, EC 5-15).

The other two asserted bases for invalidating the agreement to arbitrate — that the agreement was abandoned or terminated — involve issues which must be resolved by the arbitrator. Both of these grounds involve matters which postdate the existence of a valid agreement and do not affect arbitrability. Abandonment of the contract “is a question intimately related to performance because, a fortiori, it is premised on the nonfulfillment of contractual obligations and the failure to accomplish the terms of the agreement”, and thus it must be decided in arbitration (Matter of Macy & Co. [National Sleep Prods.], 39 NY2d 268, 271; see I. J. S. Fabrics v Dan River, Inc., 56 NY2d 755, affg on 81 AD2d 525). Appellants argue that the contractual obligations involved here (taking out insurance on the lives of the contracting parties, annually executing a schedule of the value of the businesses, and inserting an endorsement on all shares of stock in the Corporation that they are subject to the terms of the agreement) are conditions precedent and that compliance with them is a question for the court (see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1). Only conditions precedent to access to the arbitration forum, however, are for the court to determine, and the obligations relied on here relate only to substantive duties under the contract.

Termination of the contract’s substantive obligations and replacement of it with a new agreement are issues which similarly involve conduct of the parties subsequent to the contracting which are to be decided by the arbitrator (Matter of Schlaifer v Sedlow, 51 NY2d 181; Matter of Riccardi [Modern Silver Linen Supply Co.], 36 NY2d 945, 947; Matter of Lipman [Haeuser Shellac Co.], 289 NY 76, 79-81). Termination is a question for the arbitrator unless the asserted replacement agreement relates to the arbitration clause in the original agreement (Matter of Schlaifer v Sedlow, supra). The alleged replacement agreement relied on here provided that each brother would nominate one son to succeed to his father’s interests in the businesses on the father’s death. This agreement relates only to the substantive obligations created by the original contract and does not refer to the arbitration clause. Thus, the Appellate Division properly granted the motion to compel arbitration and denied the motion to stay arbitration.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Cynthia York, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Decided September 20, 1984
    APPEARANCES OF COUNSEL

      Jeffrey S. Wasserman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel {June A. Witterschein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

It is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law (Matter of Bergamini v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 897; Matter of Stanziale v Executive Dept., 55 NY2d 735; Matter of Talamo v Murphy, 38 NY2d 637; James v Board of Educ., 37 NY2d 891).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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:
    Maria V. Santiago, Appellant, v New York City Housing Authority, Respondent, et al., Defendant.
    Decided September 20, 1984

      APPEARANCES OF COUNSEL

      Edward P. Dunphy and Morris J. Eisen for appellant.

      Francis J. Marcheret for respondent.
   OPINION OF THE COURT

Memorandum.

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

The negligence of defendant New York City Housing Authority in not repairing a “jammed” exterior door is not a proximate, or legal cause of the injuries sustained by the plaintiff when she was shot in the leg after being unable to open the exterior door in attempting to reenter her building. Under these circumstances the intervening act of the unknown assailant was extraordinary and unforeseeable as a matter of law, and thus served to “break the causal connection” between the defendant’s negligence and the plaintiff’s injuries (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). To hold the shooting incident a foreseeable consequence of the defendant’s negligence would “stretch the concept of foreseeability beyond acceptable limits” (Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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 Cardell Libbett, Respondent.
    Decided September 20, 1984

      APPEARANCES OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Orando and Michael P. Marmor of counsel), for appellant.

      Ernest A. DelDuchetto for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Although the Appellate Division order contains a recital stating that the reversal of appellant’s conviction was on the law, the record reveals that no proper objections were registered to the prosecution remarks made in closing argument on which reversal was based. Because reversal was in the exercise of discretion rather than on the law, the jurisdictional predicate for review by this court has not been satisfied (CPL 450.90, subd 2; People v Hoke, 62 NY2d 1022; People v Johnson, 47 NY2d 124, 126).

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


text:
    Ethne Booth, Respondent-Appellant, v Emil Landau et al., Appellants-Respondents, et al., Defendants.
    Submitted August 20, 1984;
    decided September 20, 1984
   Motion to dismiss appeal taken by defendants Landau granted and that appeal dismissed, with costs and $20 costs of motion, upon the ground that said appellants are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    The People of the State of New York, Appellant, v Jaime Escobar, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion for clarification of remittitur denied. [See 61 NY2d 431.]


text:
    Eliahu Lipkis, Respondent, v Mario Pikus et al., Appellants.
    Decided September 20, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3, subd b; CPLR 5601).


text:
    Metropolitan Transportation Authority, Respondent, v Cosmopolitan Aviation Corporation, Appellant.
    Submitted August 6, 1984;
    decided September 20, 1984
   Motion to dismiss the appeal denied.


text:
    Betty O. Muka, Appellant, v Patrick D. Ahern, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Donald R. Card, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v David D. Farkas, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Frederick H. Kilian, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Michael F. Macko, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 16, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Duane Metzger, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Larry A. Sequin, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Betty O. Muka, Appellant, v Edward J. Uhlig, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    In the Matter of John G. Nicholas, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted September 4, 1984;
    decided September 20, 1984
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from the Appellate Division order of July 16, 1984, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order of July 5,1984, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Valli Singh, Appellant, v Govind Singh, Respondent.
    Submitted August 27, 1984;
    decided September 20, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie (NY Const, art VI, § 3, subd b; CPLR 5601). Motion for a stay dismissed as academic.


text:
    Austin Willis et al., Appellants, v George S. Kepner, Jr., et al., Respondents.
    Submitted September 4, 1984;
    decided September 20, 1984
   Motion to vacate the Court of Appeals order of dismissal dated August 15, 1984 denied. [See 63 NY2d 702.]


text:
    Cynthia Wilson, Respondent, v William H. Wilson, Appellant.
    Submitted September 6, 1984;
    decided September 20, 1984
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]). Motion for a stay dismissed as academic.


text:
    In the Matter of Board of Education of the Clarkstown Central School District, Appellant, v Gordon M. Ambach, as Commissioner of Education, et al., Respondents.
    Argued September 4, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Warren E. Berbit and Ira M. Emanuel for appellant.

      James H. Whitney and Robert D. Stone for Gordon M. Ambach, as Commissioner of Education, respondent.

      James J. Brady and James R. Sandner for Susan Margison and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (97 AD2d 188).

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


text:
    New Castle Siding Company, Inc., Plaintiff, v Horace Wolfson et al., Defendants, and Waynett A. Sobers, Jr., Appellant, and David Smith, Respondent.
    Argued September 6, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Lawrence A. Cohen and Gilbert S. Isaac for appellant.

      Emanuel Thebner and Elizabeth M. Hecht for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, whose cross claim is asserted in his individual capacity, seeks to recover for the delinquent taxes and penalties he has paid on behalf of the corporation and for loans made to the corporation above and beyond his initial investment. The former were made in appellant’s capacity as an officer or employee of the corporation (see US Code, tit 26, § 6671, subd [b]; § 6672; Tax Law, §§ 1085, 1131, 1134) and would be the result of respondent’s negligence, if any, in discharging his obligations to the corporation for which he would not be responsible to a stockholder (cf. White v Guarente, 43 NY2d 356). In making the loans, appellant acted as a general creditor of the corporation, to whom it is well settled that no duty is owed by an accountant (see Ultramares Corp. v Touche, 255 NY 170). Thus, in neither case can appellant, as an individual shareholder, have recovery against respondent.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Penfield Mechanical Contractors, Inc., Respondent, v Lillian Roberts, Individually and as Commissioner of Labor, et al., Appellants. Rochester, New York Building and Construction Trades Council, Intervenor-Appellant.
    Argued September 11, 1983;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for appellants.

      Bernard T. King for intervenor-appellant.

      Thomas G. Dignan, Robb M. Jones and Michael A. Hausknecht for respondents.
   OPINION OF THE COURT

Order affirmed, with- costs (Matter of Erie County Ind. Dev. Agency v Roberts, 63 NY2d 810, decided herewith). Question certified not answered as unnecessary.

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


text:
    In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Onondaga et al., Respondents.
    Argued September 4, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      John J. Hennigan for appellant.

      Donald L. Nicholas and Alicia S. Zielinski for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and petition granted for reasons stated in the dissenting memorandum of Justice James H. Boomer at the Appellate Division (96 AD2d 1138-1139).

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


text:
    Beulah Friedman, Respondent, v Viola Sommer, Appellant.
    Argued September 6, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Samuel Kirschenbaum for appellant.

      Kenneth M. Block and Randi S. Jones for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant granted summary judgment dismissing the complaint.

Appellant and her late husband sponsored an offering plan to convert the 360-unit residential apartment building known as “The Sovereign” to cooperative ownership. By the terms of the sixteenth amendment to the plan dated April 14, 1981, the sponsor increased the purchase prices for all unsold apartments. That amendment also contained the following provision: “However, each tenant is granted the non-exclusive right to purchase his or her apartment at the price set forth in the Twelfth Amendment to the Offering Plan for a period of thirty (30) days from the presentation of this Sixteenth Amendment.” Thereafter, but prior to May 12, 1981, the sponsor in oral communications to respondent tenant withdrew the offer to her with respect to her apartment 45G. Nevertheless, on May 12, 1981 the tenant undertook by a letter addressed to the sponsor to accept the offer contained in the sixteenth amendment and sought to purchase her apartment at the lower price. The determinative issue on this appeal is whether the sponsor’s offer of April 14 was irrevocable. The tenant contends that it was and that she has an enforceable contract for the purchase of her apartment, and her position has been upheld by the lower courts. We, however, agree with the sponsor that the offer was revocable and that it was withdrawn prior to the tenant’s purported acceptance.

It is conceded that there was no consideration for the offer and that it would therefore have been revocable at the common law. The tenant contends however that the offer was made irrevocable by statute.

A contract for the sale of a cooperative apartment, in reality a sale of securities in a cooperative corporation, is governed by the Uniform Commercial Code (Weiss v Karch, 62 NY2d 849, 850). The applicable section of the Code is 2-205 which provides in pertinent part: “An offer * * * in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated”. The offer here gave no such assurance. Quite the contrary, it expressly provided that it was “non-exclusive”. Thus, the sponsor explicitly reserved the right to sell the tenant’s apartment to others at any time during the 30-day period — precisely the opposite of an assurance that the tenant would have the right at any time during that period to purchase the apartment for herself.

Inasmuch as the sponsor’s offer was revocable, its withdrawal prior to acceptance by the tenant precluded the formation of a contract of purchase and requires dismissal of the tenant’s complaint seeking specific performance or, in the alternative, damages for the breach of such contract.

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

Order reversed, etc.

       The sponsor does not contest the tenant’s contention that the sponsor was a “merchant” within the meaning of this section. The tenant’s alternative reliance on section 5-1109 of the General Obligations Law is misplaced in view of the applicability of section 2-205 of the Code.


text:
    In the Matter of Harold L. Drimmer, as Chairman of the Board of Trustees of Westchester Community College, et al., Appellants, v Board of Trustees of the State University of New York et al., Respondents.
    Argued September 11, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Henry J. Logan, County Attorney {Lester D. Steinman of counsel), for appellants.

      Robert Abrams, Attorney-General {Peter G. Crary and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice T. Paul Kane at the Appellate Division (98 AD2d 132).

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


text:
    In the Matter of the City of Newburgh, Appellant, v Public Employment Relations Board of the State of New York, Respondent, and Local 589, International Association of Fire Fighters, AFL-CIO, Intervenor-Respondent.
    Argued September 4, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      William M. Kavanaugh, Corporation Counsel ('William F. Ketcham of counsel), for appellant.

      Jerome Thier and Martin L. Barr for respondent.

      Richard P. Walsh, Jr., and Michael T. McGarry for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

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

Just as mandamus will lie only to enforce a clear legal right, prohibition may be availed of only to proscribe a clear legal wrong. That PERB has ordered mediation during the life of the collective bargaining agreement does not, as the City argues, constitute such a clear usurpation of power by PERB, for subdivision 1 of section 209 of the Civil Service Law relates the declaration of impasse “to the end of the fiscal year of the public employer” not to the contract year (see Matter of Burke v Bowen, 40 NY2d 264, 268). Moreover, even as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if he is relegated to such other course. Here, as the Appellate Division noted (97 AD2d 258, 262), adequate means exist for presentation by the City of its argument against compulsory arbitration (see 4 NYCRR 205.6). Nor, for like reason, should the authority granted by CPLR 103 to convert this proceeding to an action for declaratory judgment be exercised.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Timothy L. Bell, Appellant.
    Argued September 5, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Carmine J. Clemente and Jeffrey J. Clemente for appellant.

      William Gritsavage, District Attorney (Valerie Friedlander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Even if we accept defendant’s contention that the proper test for admissibility of photographs of a victim being attended in the hospital is a balancing of the inflammatory nature of the photographs against their materiality and relevance to the prosecution’s case, we find no abuse of discretion in the admission of the photographs here in question (but see People v Pobliner, 32 NY2d 356, cert den 416 US 905). They were not gory, the lacerations they show having either been cleaned up or bandaged, and while the knife remaining imbedded in the victim’s back was startling in the sense of being unusual, the picture it presented of the knife was less unnerving than the oral testimony concerning it. Nor for the reasons stated by the Appellate Division majority did the “startling” nature of the photographs so far outweigh their relevance to defendant’s complicity in the crime as to constitute an abuse of discretion as a matter of law.

With respect to the victim’s in-court identification of defendant, the Trial Judge should have articulated his findings before trial but no objection to his failure to do so was made. Although CPL 470.05 (subd 2) preserves the question of law notwithstanding that failure, the ruling implicit in the admission of the identification in court is, after affirmance by the Appellate Division, beyond our power of review, there being evidence in the record to sustain the conclusions that there was an independent basis for the identification and no taint sufficient to constitute a substantial likelihood of irreparable misidentification.

We need not reach defendant’s contention that CPL 650.20, insofar as it exempts from its operation an out-of-State witness being held under sentence of death, is unconstitutional. No sufficient showing that codefendant Oats would testify or of the relevance of his testimony was made to warrant the issuance of an order under that statute or of a commission under CPL 680.20.

We have considered the other contentions presented by defendant and find them either to have been unpreserved or to be without merit.

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

Order affirmed in a memorandum.


text:
    Atlantic Cement Company, Inc., Respondent, v Fidelity & Casualty Company of New York, Defendant, and Travelers Indemnity Company, Appellant.
    Argued September 6, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Richard Bakalor and Robert E. Quirk for appellant.

      Robert L. Tofel, David J. Rosen and David B. Newman 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.

We agree, for the reasons stated in the opinion of Justice Fritz W. Alexander (91 AD2d 412), that the policy exclusion of “intentional harm” was inapplicable on the facts presented and that the Appellate .Division properly directed a verdict in favor of Atlantic Cement Company.

The exclusion being inapplicable, Atlantic was entitled under the policies not only to the costs of defense but also to indemnification for amounts paid by it as damages. The letter agreement of October 13,1965 provided the basis for settlement as to the costs of defense, but expressly reserved to the carriers the right to deny responsibility for contribution to any judgment rendered against Atlantic. It made no specific reference to Atlantic’s right to indemnification, but the necessary implication from the carriers’ reservation and the fact that the letter purported otherwise to deal only with the costs of defense was that Atlantic’s indemnification claim was not settled. That the carriers so understood is evident from their failure to plead release to Atlantic’s complaint, which contained causes of action for both costs of defense and indemnification.

The carriers, therefore, were required to indemnify Atlantic for such amounts as Atlantic “became legally obligated to pay as damages” because of the covered occurrence. As to the Kinley action, that amount was fixed by the verdict, and the Appellate Division’s direction of interlocutory judgment in the amount of the judgment entered on that verdict was, therefore, proper.

Proper also was its remission for trial as to the causes of action which Atlantic had settled, for as to those, there being no jury verdict establishing the damages that Atlantic was legally liable for, the carriers were entitled to a trial as to the reasonableness of the amounts paid in settlement. The reference in the Appellate Division decision to the rule in Rosen & Sons v Security Mut. Ins. Co. (31 NY2d 342, 347), though apparently intended only to draw an analogy to wrongful refusal cases, is now argued by Travelers to have vitiated Atlantic’s right to indemnity because, it is said, Travelers entered into a settlement agreement as to its duty to defend and did not refuse to defend. The right to indemnity and to a defense are separate, though related. Atlantic’s right to recover reasonable amounts paid in settlement results from the determination that the occurrence was within the policy coverage and is not affected by the fact that the cost of defense issues were settled by the October 1965 letter and a later stipulation and payment.

Nor can Travelers benefit from the argument, presented for the first time in the briefs to this court, that some part of the damages may have predated its policies. The appeal having been taken directly to this court from the final judgment pursuant to CPLR 5601 (subd [d]) brings up for our review only questions of law relating to the Appellate Division’s order of February 22,1983 (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], p 238). That order determined damages only as to the Kinley action, but the point even as to that was not presented either during the first trial or to the Appellate Division, on original argument or by motion for reargument, and, therefore, has not been preserved for review by this court.

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

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


text:
    In the Matter of Cheryl A. Nelson, Appellant, v New York State Civil Service Commission et al., Respondents.
    Argued September 10, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Arnold W. Proskin for appellant.

      John K. Dalton, George N. Curtis and William T. Graham for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, though on somewhat different reasoning than stated in the opinion of that court (96 AD2d 132).

Subdivision 4 of section 131 of the Civil Service Law, upon which petitioner relies, applies only when an employee is “reinstated to a position in the same salary grade”. The position petitioner left in 1973 was in salary grade 14; that to which she was reinstated, in salary grade 10. Subdivision 4 of section 131 of the Civil Service Law does not entitle her to the salary of her former position upon “reinstatement” to a position of lower salary grade. Nor should her eventual promotion to grade 14 entitle her to the salary of her former step in that grade from the time of that promotion. The purpose of subdivision 4 is to permit State employees to move from one allocated position, whether within the same or another agency, to another, whether by appointment, transfer or reinstatement, without loss in salary, not to provide additional compensation to a former employee who returns to State service in a lower grade.

The opinion of the Attorney-General (1980 Opns Atty Gen 39), upon which Special Term relied, is distinguishable because it dealt only with the right of an employee reinstated in his former grade to payment of the difference in salary between the entrance level, or hiring rate, of the grade and the increment level (or job rate) which the employee had attained in his former position, and held no more than that subdivision 4 of section 131 of the Civil Service Law entitled him to be paid, retroactively to the date of reinstatement, at the increment rather than the entrance level.

Nor is it relevant that, had petitioner applied to the Civil Service Commission under rule 5.4 (4 NYCRR) for reinstatement at grade level 14 instead of taking the examination for a grade 10 position, that body may have, “for good cause shown and where the interests of government would be served,” reinstated her to her former grade 14 position and thereby entitled her to the benefit of subdivision 4 of section 131 of the Civil Service Law. The fact is that petitioner did not apply to the Civil Service Commission until well after her appointment to the grade 10 position and the Commission’s denial of her application has not been shown to be arbitrary.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Cathleen P., Appellant, v Gary P., Respondent.
    Submitted September 5, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      David S. J. Neufeld for appellant.

      Gary P., respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition reinstated.

Petitioners, an unwed mother and her son, timely instituted this Family Court proceeding against respondent, the alleged father of the child, seeking a declaration of paternity and an order of support (see Family Ct Act, §§517, 522). On the return date Family Court dismissed the petition with prejudice. The dismissal was based upon the court’s view that prior support proceedings instituted by the Suffolk County Department of Social Services precluded petitioners’ proceeding. The first such proceeding was instituted by the Department in August 1979 after the mother applied for welfare benefits. The proceeding was dismissed in June 1980 because of the mother’s failure to appear, the Family Court Judge refusing to declare whether the dismissal was with or without prejudice. On June 25, 1980 the Department filed a second petition and at the initial court appearance another Family Court Judge dismissed it because of the prior dismissal. The petitioners were not parties to either of these proceedings and thereafter instituted this proceeding in their own names, which as noted, Family Court held was barred by the disposition of the prior Department’s proceeding. The Appellate Division affirmed its order.

Traditionally, the sole purpose of a paternity proceeding was to establish the father’s obligation to make support payments. A determination of paternity or order of filiation in such a proceeding was incidental, did not adjudicate status, and was not binding on the child (Commissioner of Public Welfare v Koehler, 284 NY 260, 266-267; Matter of Salvatore S. v Anthony S., 58 AD2d 867; Matter of Melis v Department of Health, 260 App Div 772). Indeed, where the paternity proceeding was brought by welfare officials, the mother was not even a necessary party and was not bound by the result of the action (Matter of Commissioner of Social Servs. v Bailey, 79 AD2d 572; Matter of Bertrand, 100 Misc 2d 439, 441, 444-445). Thus, if support was not the primary issue, the traditional remedy was to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties CMatter of Kordek v Wood, 90 AD2d 209, 210; Matter of Salvatore S. v Anthony S., 58 AD2d 867, supra).

Recent statutory developments and case law have eroded this dichotomy, however. Section 522 of the Family Court Act now provides that a paternity proceeding may be commenced by the mother, by a person alleging to be the father or by a public welfare official. Each of these parties may commence a separate proceeding (Matter of Kordek v Wood, 90 AD2d 209, supra; Matter of Terese C. v Barry C., 120 Misc 2d 378; Joye v Schechter, 112 Misc 2d 172). Even if support is not at issue, the mother, the putative father and child all have an interest in a filiation order because it declares paternity (Family Ct Act, § 542) and establishes rights of inheritance (EPTL 4-1.2, subd [a], par [2]); the right to recover benefits under subdivision 11 of section 2 of the Workers’ Compensation Law and numerous Federal laws; and the right to notice of adoption proceedings (Domestic Relations Law, § 111-a, subd 2, par [a]).

Accordingly, even if petitioner mother had assigned away any right to seek support payments (see Matter of Bertrand, 100 Misc 2d 439, 441, supra), she and her child still may obtain an order of filiation in the present proceeding. Neither petitioner was a party to the prior proceedings brought by the Department of Social Services, and certainly the child is in no way bound by those proceedings (Commissioner of Public Welfare v Koehler, supra).

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

Order reversed, etc.


text:
    In the Matter of Josephus Etheridge, Appellant, v John P. Collins, as Acting Justice of the New York State Supreme Court of Bronx County, et al., Respondents.
    Argued September 7, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Roger Milch for appellant.

      Mario Merola, District Attorney (Robert L. Shepherd, Steven R. Kartagener and Peter D. Coddington of counsel), respondent pro se.

   OPINION OF THE COURT

Judgment affirmed, without costs. Prohibition does not lie under the circumstances of this case (see Matter of Gold v Gartenstein, 54 NY2d 627; Matter of Dondi v Jones, 40 NY2d 8).

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


text:
    In the Matter of Erie County Industrial Development Agency et al., Respondents, v Lillian Roberts, Individually and as Commissioner of Labor, Appellant, and Building & Construction Trades Council of Buffalo, New York, & Vicinity, AFL-CIO, Intervenor-Respondent.
    Argued September 11, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll, Peter H. Schiff and Peter B. Sullivan of counsel), for appellant.

      James L. Magavern, Susan C. Goldberg, Marianne E. Hanley and Francis W. Gruene for respondents.

      Frank S. Kedzielawa for intervenor-respondent, precluded.

      Robert H. Basso for Empire State Chapter of Associated Builders and Contractors, Inc., amicus curiae.

      Richard L. O’Hara and Leonard M. Ridini, Jr., for New York State Building & Construction Trades Council, amicus curiae.

      Thomas G. Dignan, Robb M. Jones and Michael A. Hausknecht for New York State Economic Development Council, Inc., amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Emmett J. Schnepp at the Appellate Division (94 AD2d 532).

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


text:
    In the Matter of John F. O’Shaughnessy, Appellant-Respondent, v Isabel R. Dodd et al., Constituting the Board of Elections of Nassau County, et al., Respondents, and Donald E. Belfi, Respondent-Appellant.
    Argued October 8, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      James R. Moffatt for appellant-respondent.

      Howard S. Kass for respondent-appellant.

      Edward G. McCabe, County Attorney, for Board of Elections of Nassau County, respondent.

      William D. Wall for Raymond Harrington, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reason stated in the memorandum of that court.

A multiparty candidate has the same right to a drawing for ballot position as does a single party’s nominee (Matter of Wolf v Acito, 42 NY2d 1076). The only time the statutorily granted right to a drawing for ballot position under subdivision 2 of section 7-116 of the Election Law may be refused a candidate is when the exercise of that right might work a displacement on the ballot prejudicial to the candidates of other parties preferred under the provisions of subdivision 1 of section 7-116 of the Election Law (Matter of Cooke v Lomenzo, 31 NY2d 244, 247). Because the drawing by lot directed by the County Board of Elections is to be restricted to the Republican Row B candidates and is further restricted so as not to alter the position of the Democratic Row A candidates, it should be allowed to proceed (Matter of Mintz v Cuomo, 45 NY2d 918).

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

Order affirmed, without costs, in a memorandum.


text:
    Thomas Pitt, Respondent, v City of New York et al., Defendants, and James Mugan, Appellant.
    Argued September 13, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      John J. Kearns for appellant.

      David M. Goldberg 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 Fritz W. Alexander at the Appellate Division (94 AD2d 202).

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


text:
    Jules M. Fields, Respondent, v Board of Higher Education of the City of New York et al., Appellants, et al., Defendants.
    Argued September 13, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (.Edward F.X. Hart and Leonard Koerner of counsel), for appellants.

      Cheryl R. Eisberg, Harry H. Lipsig, Emilio Nunez and Pamela Anagnos Liapakis 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 Fritz W. Alexander at the Appellate Division (94 AD2d 202).

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


text:
    Basil Tagert, Respondent, v 211 East 70th Street Company et al., Appellants.
    Argued September 4, 1984;
    decided October 9, 1984

      APPEARANCES OF COUNSEL

      Arthur Richenthal for appellants.

      Jon Paul Robbins for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendants, by reversing so much thereof as affirmed the grant of summary judgment to plaintiff, and by remitting the case to Supreme Court, New York County, for further proceedings in accordance with this memorandum, and as so modified, the order should be affirmed.

In late 1982, plaintiff informed defendant, his landlord, that he had been assigned overseas by his employer for an indefinite period of up to two or three years. Plaintiff sought permission for his son, his son’s wife and their children, to move into his rent-stabilized apartment and occupy it while he was away, both for the remainder of the lease term (through March 31, 1983) and for a renewal term, either as a subtenant or as a family member entitled to occupancy under a lease provision permitting occupancy “only by tenant and the members of the immediate family of tenant.” When the landlord refused, plaintiff brought an action for a declaratory judgment and injunctive relief. Special Term granted plaintiff summary judgment, inter alia, declaring that plaintiff’s son was entitled to occupy the apartment both as a subtenant and as an “immediate family” member, and the Appellate Division affirmed.

Before the landlord’s appeal had been decided, the Legislature amended section 226-b of the Real Property Law and section YY51-6.0 (subd c, par [14]) of the Administrative Code of the City of New York (L 1983, ch 403, §§ 37, 51), requiring that a tenant seeking to sublet his apartment “establish that at all times he has maintained the unit as his primary residence and [that he] intends to occupy it as such at the expiration of the sublease”. In the absence of such a showing, a landlord’s refusal to consent to a proposed sublease would be reasonable. In affirming Special Term’s order, the Appellate Division failed to address these new provisions, which are applicable to pending actions (see L 1983, ch 403, § 64; Vance v Century Apt. Assoc., 61 NY2d 716).

The only proof plaintiff submitted in support of his contention that he intends to reoccupy the apartment as his primary residence is his own statement to the effect that, while his overseas assignment is indefinite, he plans to return to New York and wishes to retain his status as tenant in order to have an apartment to return to. Defendant challenges plaintiff’s declared intention, pointing out that he is a British citizen on indefinite assignment in London, that he removed virtually all of his furniture from the apartment, and that his son’s family had sold its Westchester residence before moving into the apartment. The evidence is insufficient to establish as a matter of law that plaintiff intends to reoccupy the apartment as his primary residence upon the expiration of the sublease, and plaintiff is therefore not entitled to summary judgment. However, in view of the recent changes in the law, which occurred after Special Term’s order, the parties should be afforded an opportunity to develop the proof further on the issue of primary residence.

Nor does plaintiff secure any greater right by virtue of the lease provision that permits “tenant and the members of the immediate family of tenant” to occupy the apartment. This provision clearly contemplates concurrent occupancy by the tenant and his family members. Moreover, only the tenant may renew a lease; family members have no such right after the tenant has vacated (Administrative Code, § YY51-6.0, subd c, par [4]). Thus, while the lease provision may permit a tenant’s family to occupy an apartment with him, and allow those family members who actually live with him to continue in residence for the remainder of the lease term in his absence (Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 61 NY2d 976), the lease provision does not permit family members to succeed to possession by moving into an apartment upon the tenant’s departure, and it does not require a landlord to renew a lease as an apartment is successively passed to members of the tenant’s family. Since plaintiff’s son did not reside in the apartment with his father, he has no right to occupancy under the lease provision.

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

Order modified, with costs to defendants, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Glen Herman, Appellant, v State of New York, Respondent.
    (Claim No. 62036.)
    Argued September 5, 1984;
    decided October 9, 1984
    APPEARANCES OF COUNSEL

      Michael J. Grenthal and Michael J. Krakower for appellant.

      Robert Abrams, Attorney-General (.Peter J. Dooley and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On August 4, 1976, plaintiff and three friends went swimming at the West End No. 2 section of Jones Beach, which plaintiff had frequented at least six times earlier that summer, and often before that. Plaintiff proceeded into the deepening water until it was waist-high, and executed a surface dive. His head struck a sand bar not visible to him from the surface, and he sustained serious permanent injuries. Allocating 50% of the responsibility to plaintiff’s own culpable conduct, the Court of Claims entered judgment for plaintiff on the issue of liability, finding a duty to warn of a dangerous natural condition — unusual sand bar activity in that area, caused by the existence of a man-made jetty — which was not known or obvious to an ordinarily intelligent person but was known to defendant because of three previous accidents between 1952 and 1974. The Appellate Division reversed and dismissed the complaint, refusing to impose a duty to warn, both because of the natural, highly transitory character of the sand bars, making any warning impractical and of little value, and because plaintiff himself knew or should have known of any danger posed by the sand bars.

To be liable in damages for failure to warn of a dangerous condition, a property owner must have notice of the condition itself as well as the unreasonable risk it creates. Here, defendant could not anticipate a danger to swimmers simply from the existence of the natural, shifting condition of sand bars in the ocean (cf. Preston v State of New York, 59 NY2d 997) and, on a beach visited by millions of bathers, defendant was not placed on notice of a danger by virtue of three similar incidents over the preceding 24 years. Since defendant did not in these circumstances have a duty to warn, we do not reach the issue of causation.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Rodney D. Owens, Respondent.
    Argued September 6, 1984;
    decided October 9, 1984
    APPEARANCES OF COUNSEL

      Benjamin J. Bucko, District Attorney {John A. Stevens and William A. Lange, Jr., of counsel), for appellant.

      Raymond M. Schlather for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for consideration of issues not reached on defendant’s appeal to that court.

At defendant’s rape trial, the evidence against him included the testimony of the 15-year-old victim, who had known defendant for years, and expert testimony regarding the detection of sperm on the victim’s underwear. To meet this evidence, defendant applied for a ruling under CPL 60.42 in order to call 17-year-old William Blake, defendant’s brother-in-law, to testify as to his sexual relations with the victim on the day of the crime or shortly before. On his attorney’s advice, Blake refused to provide such testimony on the ground that it could subject him to a charge of sexual misconduct (Penal Law, § 130.20) and the prosecutor declined to ask the court to confer immunity on the witness, thereby precluding the court from doing so (CPL 50.30). During the offer of proof, the prosecutor admitted that, despite prior instruction by Blake’s attorney that he not be questioned outside the presence of counsel, she had spoken to Blake alone in the hallway of the courthouse earlier that day. The only evidence in the record of the content of this conversation is the prosecutor’s statement that she asked Blake why he had not mentioned his sexual relationship with the victim at the time of the Grand Jury presentation and whether he had in fact had sex with the victim on July 5, to which Blake responded negatively. Blake’s only comment on the episode was that the prosecutor had not asked the latter question. The Appellate Division reversed defendant’s conviction for first degree rape because, in the majority’s view, the prosecutor should have requested the court to confer immunity on the proposed defense witness.

Though a prosecutor possesses the discretion to determine when to immunize a witness, this discretion is subject to review for abuse where, for example, it is exercised to prevent a defendant’s access to a police informant active in the crime (People v Sapia, 41 NY2d 160, cert den 434 US 823), or the prosecutor “builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant’s witnesses with prosecution for peijury if they give evidence favorable to the defense” (People v Adams, 53 NY2d 241, 247; see, also, People v Shapiro, 50 NY2d 747). The record here reveals no such abuse. The absence óf current charges against the witness with respect to the subject of the proposed testimony does not establish bad faith on the part of the prosecutor. Nor can we presume overreaching by virtue of her private discussion with the witness, especially where the only record of the content of the conversation indicates no intimidation or coercion. The prosecutor’s inexcusable violation of Blake’s right to counsel does not constitute an interference with defendant’s right to present a defense.

Though the Appellate Division based its decision on the prosecutor’s refusal to request immunity, it mentioned as error — now relied upon by defendant in support of the result below — the court’s instruction that the jury could disregard a “minor variance” between the time of the offense as charged in the indictment (“at or about 10:30 p.m.”) and the time of the offense as proven at trial. This instruction was thought to prejudice defendant in light of his alibi, which placed him at another location until at least 10:45 p.m. We do not believe that this charge constituted reversible error. The precise moment of a rape is not a material element of the crime. In such a situation, reliance on the exact time contained in the indictment is not justified and any prejudice resulting from such reliance is not ground for reversal (see People v Charles, 61 NY2d 321, 326-327; People v Spann, 56 NY2d 469). The absence of recognizable prejudice is especially evident here, where the prosecutor in the midst of trial reminded defense counsel that the indictment merely charged that the crime occurred at or about 10:30.

We have considered defendant’s remaining contentions, to the extent they have been preserved for our review, and we find them to be without merit.

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

Order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the memorandum herein.


text:
    Inna B., Appellant, v Lev G., Respondent.
    Submitted July 16, 1984;
    decided October 9, 1984
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the Family Court order entered on September 20, 1983, dismissed upon the ground that that portion of the order sought to be appealed does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied.


text:
    Charles Joseph, Appellant-Respondent, v Anthony Ruffo, as Broome County Sheriff, Respondent-Appellant.
    Submitted June 25, 1984;
    decided October 9, 1984
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601, subd [a], par [iii]; subd [d]). Motion for leave to cross-appeal denied.


text:
    In the Matter of the Arbitration between Safeco Insurance Company, Respondent, and Commercial Union Assurance Companies, Appellant.
    Decided October 9, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the Appellate Division order of unanimous affirmance (CPLR 5601).


text:
    Collision Plan Unlimited, Inc., et al., Appellants, v Bankers Trust Company, Respondent.
    Argued September 5, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Matthew Dollinger for appellants.

      Joel David Sharrow, Arthur F. Abelman and David M. Satnick for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to reinstate the complaint except as to the sixth, seventh and eighth causes of actions which have been dismissed, and, as so modified, affirmed, with costs. Where factual allegations are discerned which, taken together, manifest a cause of action cognizable at law, a motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7) should be denied. (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3211:24.) We agree with the Appellate Division that the complaint states a good cause of action by denying Nicholas Neu’s actual authority to execute the agreement, mortgage and guarantee.

However, it was error for the Appellate Division to hold, as a matter of law, that the bank was under no duty to investigate the circumstances surrounding the mortgage transaction involving Nicholas Neu and Richard Albert. By invoking the doctrine of apparent authority to justify the propriety of its actions, the bank concomitantly assumed a duty of reasonable inquiry as to Nicholas Neu’s actual perimeter of authority. (Ford v Unity Hosp., 32 NY2d 464, 472-473; General Overseas Films v Robin Int., 542 F Supp 684, 695-696; Karavos Compania v Atlantica Export Corp., 588 F2d 1, 10.) This issue, involving inferences to be drawn from evidentiary proof, cannot be determined on the documentary evidence submitted on the motion.

The mortgage arrangement should have triggered the duty of reasonable inquiry since a gratuitous guarantee by a corporation of a debt of an unrelated corporation is extraordinary. (General Overseas Films v Robin Int., 542 F Supp 684, supra.) Contracts of guarantee and suretyship not in accord with the regular line of corporate business cannot be made without express shareholder authority. (Business Corporation Law, § 908; see Restatement, Agency 2d, § 165, Comment c.) The internal memoranda of the bank evinced an understanding of the peculiarity of the mortgage. The signature of Richard Albert upon the secretary’s certificate of resolution, which authorized the mortgage on behalf of Collision, could reasonably be viewed as inconsistent with his position as prime beneficiary of the mortgage loan.

The sixth cause of action, for slander of title, fails to allege special damages. (Drug Research Corp. v Curtis Pub. Co., 7 NY2d 435, 441.) The seventh cause of action seeks to recover attorneys’ fees but contains no allegation of malice. (See City of Buffalo v Clement Co., 28 NY2d 241, 263.) The eighth cause of action claims punitive damages, which are not recoverable in a separate cause of action (Ferrucci v State of New York, 34 NY2d 881, affg 42 AD2d 359) and in any event require an allegation of malice or wanton and reckless conduct. These three causes of action were, therefore, properly dismissed.

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

Order modified, with costs to appellants, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Stuart C. Goldberg, Appellant, v Sitomer, Sitomer & Porges et al., Respondents, et al., Defendant.
    Argued September 12, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Lawrence M. McKenna and Harry E. Youtt for appellant.

      Timothy P. Butler and Robert E. Meshel for Sitomer, Sitomer & Forges, respondent.

      Harold Davis for Jacob Aschkenasy, respondent.

      Alan Kanzer and George Berlstein for Empire Fire and Marine Insurance Company and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Samuel J. Silverman at the Appellate Division (97 AD2d 114).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye. Judge Meyer concurs on constraint of Morrison v National Broadcasting Co. (19 NY2d 453).


text:
    Craig Robins et al., Respondents, v Adrian Noveck, Also Known as Andrew Noveck and Andy Noveck, et al., Defendants, and Joseph Feiler et al., Appellants. Joseph Feiler et al., Third-Party Plaintiffs, v “John Doe”, Being the Person Occupying Apartment 3-L, 2621 Palisade Ave., Bronx, New York, Third-Party Defendant.
    Argued September 13, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Irving Anolik for appellants.

      Kenneth J. Gould for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 441).

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


text:
    In the Matter of Charles Schweiss et al., Appellants, v Gordon M. Ambach, as Commissioner of Education of the State of New York et al., Respondents. (Proceeding No. 1.) In the Matter of Alfred B. Del Bello, as Westchester County Executive, et al., Appellants, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 2.) In the Matter of Board of Education, Lakeland Central School District of Shrub Oak, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents. (Proceeding No. 3.)
    Argued September 4, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Murray Steyer and Frances S. Sirota for Charles Schweiss and others, appellants.

      Henry J. Logan, County Attorney (Denise J. DAmbrosio of counsel), for Alfred B. Del Bello, as Westchester County Executive, appellant.

      Kenneth Pawson and Robert D. Stone for Gordon Ambach, as Commissioner of Education, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for Board of Education of the City School District of the City of New York and another, respondents.

      Henry J. Smith and James G. Fine for Phoenix House Programs of New York, Inc., and another, respondents.
   opinion of the court

Order affirmed, with costs, for reasons stated in the opinion by Justice John T. Casey at the Appellate Division (98 AD2d 148).

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


text:
    Philip Winograd, Inc., Appellant, v Prudential Insurance Company of America, Respondent.
    Decided October 11, 1984

      APPEARANCES OF COUNSEL

      Howard J. Klapper for appellant.

      Charles H. Miller 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 (102 AD2d 715).

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


text:
    The People of the State of New York, Appellant, v Richard Brathwaite, Respondent.
    Argued September 10, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney {Joseph N. Ferdenzi and Barbara D. Underwood of counsel), for appellant.

      Donald E. Gilbert for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s conviction and sentence for depraved indifference murder and the consecutive sentences for his two convictions of felony murder reinstated, and the case remitted to the Appellate Division for consideration of the facts (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d]).

Defendant was charged, in the fifth count of the indictment returned against him, with the depraved indifference murder (Penal Law, § 125.25, subd 2) of Antonio Gray, one of his accomplices in a robbery of a neighborhood grocery store. The proof was that defendant, Gray, and two unidentified men entered the grocery store. Defendant put his gun to the head of one of the clerks and announced a holdup. One of the two unidentified men held a gun to another clerk. Gray and the other unidentified man each pointed a gun at the owner and a third clerk. Defendant, continuing to hold his gun against the clerk’s head, with his free hand reached into the cash register and took some money. Almost simultaneously the grocery store owner shouted, “Call the police”. With that gunshots rang out. Defendant climbed the store’s counter, all the while shooting in the direction of the owner and one of the clerks. Gray joined in shooting at the owner. According to police testimony at least nine shots were fired. As a result of gunshot wounds received in the melee, the owner, one of the clerks, and Gray died. Defendant and the other two gunmen fled the scene, apparently unscathed. On trial defendant offered an alibi defense — that at the time of the shootings he was with his girlfriend at a bar some distance away.

At the close of the People’s case, defense counsel moved for a trial order of dismissal and, when his motion was denied, objected to the submission of the depraved indifference murder count to the jury. No other protest was registered, however, to the court’s instructions to the jury with respect to the fifth count. It was and is defense counsel’s contention that defendant could not be convicted of depraved indifference murder in the absence of proof that he fired the fatal shot. Although it is accurate to say that a defendant is not necessarily guilty of depraved indifference murder if a coperpetrator is killed in the course of an armed robbery, it is likewise accurate to say that, if the evidence is sufficient to permit the jury to find that a defendant acted “with the mental culpability” required for depraved indifference murder, he may be found guilty of such a charge, on the theory that he was acting in concert, under section 20.00 of the Penal Law. It is not necessary to prove that the defendant fired the fatal shot if the evidence is sufficient to establish that the defendant was acting in concert with another who did fire the fatal shot and that the defendant was acting with the mental culpability required for the commission of the crime. Here the evidence of prior planning and then active participation, without apparent cause, in the resulting furious and wanton shoot-out (referred to by defense counsel as “World War II”) was sufficient to support the jury’s finding of guilt under instructions that, although the People were not required to prove that it was defendant personally who caused Gray’s death, they must prove that either “defendant, or his accomplice, must know that a substantial and unjustifiable risk of death exists and must consciously disregard that risk, [a disregard which] must be a great or major deviation from the standard of conduct that a reasonable person would observe in the situation”. The jury was further charged that, “in addition, to constitute depraved murder, the circumstances surrounding the defendant’s conduct must evince a depraved indifference to human life”, and that “a person acts with depraved indifference to human life when, in the judgment of the jury, his conduct, beyond being reckless, is so wanton, so deficient in moral sense and concern, so devoid of regard for the life or the lives of others, and so blameworthy as to warrant the same criminal responsibility, same criminal liability as that which the law imposes upon a person who intentionally causes the death of another.”

The evidence in this case was sufficient to warrant submission of the charge of depraved indifference murder to the jury based on principles of accessorial liability and, as stated, no protest was registered to the particular formulation of the charge to the jury on this count.

Defendant was sentenced to 25 years to life on each of his two felony murder convictions (with respect to the deaths of the owner and the clerk), such sentences to run consecutively, and to a sentence of the same term on his depraved indifference murder conviction, the latter sentence to run concurrently with the other two sentences. Defendant argues, and the Appellate Division held, that section 70.25 of the Penal Law requires that the two felony murder sentences run concurrently. He relies on subdivision 2, which provides: “2. When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently.” Here, although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate “acts” which caused the deaths of the owner and the clerk (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other.

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

Order reversed, defendant’s conviction and sentence for depraved indifference murder and the consecutive sentences for felony murder reinstated, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


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    Vincent Gargiulo et al., Appellants, v Murray L. Oppenheim et al., Defendants, and Harry Light, Respondent. (And a Third-Party Action.)
    Argued September 11, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Marshall D. Sweetbaum and Irving Schuh for appellants.

      Richard Eisenberg for respondent.
   OPINION OF THE COURT

Memorandum.

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

The stipulation of the parties dated December 10, 1974 contained the following provision: “7. Neither the execution of this Stipulation nor the performance of its terms shall operate to settle, discontinue, abate or otherwise affect this action or the related action in the United States District Court or any other litigation, right to interest or other claims of any kind which may now or hereafter exist between the parties or any of them, or other persons, except that performance by plaintiffs hereunder shall constitute payment of $112,000 plus the said costs and disbursements and performance by defendant Oppenheim shall constitute a return of the escrow.” The effect of this provision, so far as presently pertinent, was to leave unsettled and otherwise unresolved the claims now advanced by appellants Gargiulo and Argento in this action.

We turn then to the remaining contentions of the parties. In the first place, we conclude that the defense of claim or issue preclusion (grounded in res judicata principles) is not available in the circumstances of this case to preclude assertion of the contentions now advanced by appellants. The question of the validity of the June 20, 1973 agreement was litigated in the Federal action and thus is binding on the parties. The claim now advanced by appellants in this action, however, for restitution of the $112,000 paid in consequence of the invalid 1973 agreement, was never advanced by them, as it might have been, by way of counterclaim in the Federal action.

For purposes of the disposition of this appeal we assume, without deciding, that under the procedural compulsory counterclaim rule in the Federal courts (Fed Rules Civ Pro, rule 13, subd [a] [in US Code, tit 28, Appendix]) claim and issue preclusion would extend to bar the later assertion in the present State court action of a contention which could have been raised by way of a counterclaim in the answer in the prior Federal action between the same parties (see Restatement, Judgments 2d, § 87, Comment a, Illustration 3; McDonald’s Corp. v Levine, 108 Ill App 3d 732; Horne v Woolever, 170 Ohio St 178; see, also, Cummings v Dresher, 18 NY2d 105, 108 [Fuld, J., concurring]; National Equip. Rental v Estherville Ford, 313 NW2d 538 [Iowa]; Ann., 22 ALR2d 621). There is an exception to the Federal compulsory counterclaim rule, however, which is applicable in this case. The Federal rule expressly excludes a claim from its operative sweep if “at the time the action was commenced the claim was the subject of another pending action” (Fed Rules Civ Pro, rule 13, subd [a], par [1]). In their original complaint in this State court action appellants sought rescission of the 1973 agreement and restitution of the Jamsut stock for which stock their later payment to respondent Licht of $112,000 was substituted. Accordingly, inasmuch as this State court action was commenced prior to the Federal action, the claim for restitution arising out of payment under the June, 1973 agree- ' ment falls outside the reach of the Federal compulsory counterclaim rule, and principles of preclusion would not operate to bar its assertion in the present action. Trial Term therefore properly permitted appellants to supplement their complaint by adding a cause of action based on unjust enrichment.

Nevertheless, we conclude that the Appellate Division correctly determined that appellants are not entitled to prevail on their claim for restitution in this action. As that court held, they “received the benefit for which they bargained and agreed to pay Licht the $112,000 which they now seek to have returned to them. Having received such a benefit, which was of great value to them, they may not obtain return of the sum paid therefor, notwithstanding the fact that the agreement between the parties giving rise to such exchange has been declared a legal nullity” (95 AD2d, at p 495).

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

Order affirmed, with costs, in a memorandum.

      . For a statement of the factual context out of which litigation between the parties arose, see the Per Curiam opinion at the Appellate Division (95 AD2d 484).

      . The factual determination made by the Appellate Division — that the moneys of which appellants seek restitution were paid under the June, 1973 agreement (the Í974 stipulation having constituted merely a means to avoid the sale of the Jamsut stock and a method by which to preserve each party’s right to maintain his own action once the money then due under the 1973 agreement was paid) — comports with the weight of the evidence.


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    In the Matter of the City School District of the City of Tonawanda, Appellant, v Tonawanda Education Association, Respondent.
    Decided October 11, 1984

      APPEARANCES OF COUNSEL

      John H. Ponterio for appellant.

      Bernard F. Ashe and Emanuel Tabachnick for respondent.
   OPINION OF THE COURT

Memorandum.

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

As a result of decreased student enrollment, the Board of Education of the City of Tonawanda discharged two of its tenured teachers, Miller and Cole. Both filed arbitrable grievances alleging that by reason of the Board’s failure to have terminated in their place teachers who had less seniority in their tenure area (but who were certified to teach subjects in which the discharged teachers were not certified) there had been a violation of the seniority provision of the collective bargaining agreement in effect between the school district and the association representing the teachers.

The Miller grievance was arbitrated first and resulted in an award favorable to the school district, that there had been no violation. A different arbitrator by whom the Cole grievance was heard, who knew of the Miller award, reached a different conclusion two months later, found that a violation of the seniority provision had occurred, and directed payment of compensating damages to Cole. When the school district brought a proceeding to confirm the Miller award and one to vacate the Cole award Supreme Court granted the relief requested, holding that the first award, in the school district’s favor, was entitled to res judicata effect in the second, Cole, arbitration of a grievance which arose in circumstances identical to that presented in the earlier grievance. On appeal by the teachers’ association from Supreme Court’s disturbance of the Cole award, the Appellate Division unanimously reversed and confirmed the determination of the arbitrator favorable to Cole, noting that the defense of res judicata was for the arbitrator. In that holding the Appellate Division was correct. The effect, if any, to be given to an earlier arbitration award in subsequent arbitration proceedings is a matter for determination in that forum (Board of Educ. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813; Matter of Country-Wide Ins. Co. [Barrios], 48 NY2d 831, 832). The existence of a prior award inconsistent with one sought to be vacated is not included among the grounds set out in CPLR 7511 (subd [b]) on which a court may upset an arbitration award.

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


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    The People of the State of New York, Respondent, v Felipe Cruz, Appellant.
    Decided October 11, 1984

      APPEARANCES OF COUNSEL

      Robert S. Dean for appellant.

      Elizabeth Holtzman, District Attorney (Anthea H. Bruffee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant and his brother, Isidoro, were represented by the same attorney at their trial for the shooting of an off-duty correction officer. The defense presented by their counsel was that the complainant had been mistaken in his identification and that it was actually another brother, Arsemio, who fired the shots.

Where multiple defendants are represented by a common attorney, the trial court is obligated to ascertain on the record whether each defendant is aware of the potential risks involved in joint representation and has knowingly chosen such course (People v Gomberg, 38 NY2d 307, 313-314). Apparently, no such inquiry was made by the trial court here. To establish his right to a new trial, however, defendant must additionally “demonstrate that a conflict of interest, or at least a significant possibility thereof,” existed (People v Macerola, 47 NY2d 257, 264). This may be shown, for example, through the existence of “pronounced variations in the type and quantum of evidence against each defendant [which suggests] different theories and tactics of defense for each” (People v Baffi, 49 NY2d 820, 822).

Defendant argues that counsel should have asserted a self-defense claim on his behalf and a passive bystander defense as to Isidoro. He claims that the attorney was deterred from doing so because a self-defense claim would have required a concession that defendant fired the shots and would have necessarily implicated Isidoro. These two possible defenses are not necessarily inconsistent, however. Defense counsel could have argued that defendant shot the complainant without also inculpating Isidoro. In fact, had the attorney relied on a theory that defendant fired the shots in self-defense, it might have strengthened an argument on behalf of Isidoro that he was a mere bystander by minimizing his involvement in the incident. We conclude that defendant has not met the burden imposed on him under Maceróla.

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


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    Steven Bardere, Appellant, v Arthur Zafir et al., Respondents, et al., Defendants.
    Decided October 11, 1984

      APPEARANCES OF COUNSEL

      Roy M. Warner for appellant.

      Hugh J. Helfenstein and Richard A. Scheer for respondents.
   OPINION OF THE COURT

Memorandum.

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

On appeal by defendants Zafir and Brooklyn Garbage Bag Co. from an order of Special Term which had denied their motion under CPLR 3211 to dismiss the complaint for failure to state a cause of action and as barred by the Workers’ Compensation Law, plaintiff, for the first time, asked in the Appellate Division that if the order of Special Term were reversed and the motion were granted he be given leave to replead to set out a theory of successor liability under Billy v Consolidated Mach. Tool Corp. (51 NY2d 152). We agree with the parties that, in reversing the order of Special Term and dismissing the complaint, the Appellate Division implicitly denied plaintiff’s application.

We find no basis for reversal of that disposition. The court examined plaintiff’s papers submitted in opposition to the motion and found missing therefrom allegations of any one of the four circumstances which will support a claim of successor liability under Schumacher v Richards Shear Co. (59 NY2d 239). Additionally, plaintiff failed to comply with the requirement of CPLR 3211 (subd [e]) that, if the party opposing a motion to dismiss for insufficiency desires leave to plead again in the event the motion is granted, he shall set forth and support a request for such relief in his opposing papers. In order to reverse the implicit refusal by the Appellate Division of leave to replead to plaintiff we would have to say that plaintiff’s papers, as a matter of law, necessarily satisfied that court that there was good ground to support a theory of successor liability (CPLR 3211, subd [e]) and, further, that the appellate court was required (again as a matter of law) to excuse compliance with the statutory mandate of inclusion of a request to replead in the opposing papers. We can do neither.

Plaintiff’s reliance on Sanders v Schiffer (39 NY2d 727) in support of his request that we authorize application by him to Special Term for leave to serve an amended complaint is misplaced. As an examination of the record discloses, in Sanders, unlike the present case, plaintiffs had complied with the statutory requirement by including a request for permission to replead in their attorney’s affidavit opposing the motion to dismiss. Moreover, in that case there had been no evaluation of the claimed support for the proposed amended pleading and no determination by the Appellate Division of plaintiffs’ request to replead, as has occurred in the present case responsive to the explicit request by plaintiff that the appellate court itself grant leave to amend.

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


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    In the Matter of Antonio Emmi et al., Appellants, v Zoning Board of Appeals of the Town of Salina et al., Respondents.
    Argued September 10, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Mario DArrigo for appellants.

      Matthew M. Grobosky and Henry C. Fadden for Zoning Board of Appeals of the Town of Salina, respondent.

      S. Paul Battaglia and Dominic Urciuoli for Mobil Oil Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the courts below that the Zoning Board of Appeals did not act arbitrarily and capriciously in entertaining the application of the tenant, Mobil Oil. Although the appellants, the owners of the property, urge that the Board should not consider an application for variances made by a tenant unless the fee owner consents, or permits the tenant to act as agent for the owner, the applicable statute is not so limited. Section 267 of the Town Law provides that an appeal may be taken by any “aggrieved person”, which has been held to include persons other than the fee owners (see, e.g., Reizel v Exxon Corp., 36 NY2d 888; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656).

In this case, where the evidence before the Board showed that Mobil was the tenant, had paid the property taxes, and had made prior applications to the Board on its own, and on one occasion with the support of the owner, it cannot be said that the Board acted unreasonably in considering and granting its application for the zoning variances.

In addition we would note that the lease submitted to the court in this article 78 proceeding authorizes the tenant, in broad terms, to make improvements to the property thus demonstrating that in fact the owners’ challenge to the tenant’s standing is unfounded.

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

Order affirmed, with costs, in a memorandum.


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    Frank A. Nemia, Plaintiff, v Theodora S. Nemia, Defendant. (Action No. 1.) Theodora S. Nemia, Respondent, v Frank A. Nemia, Appellant. (Action No. 2.)
    Argued September 11, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Richard M. Hill for appellant.

      James P. McGinty for respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court with directions to dismiss the wife’s appeal to that court and for consideration of issues, if any, not reached by that court on the husband’s appeal with respect to action No. 2. Plaintiff wife was not aggrieved by the grant of reverse summary judgment to the husband and accordingly the Appellate Division was without jurisdiction tb entertain her appeal at the time it was taken. This disposition is without prejudice to her right if she be so advised to seek reconsideration of Special Term’s grant of defendant husband’s motion for reverse summáry judgment and of the judgment of divorce entered thereon in light of the provisions of chapters 827 and 828 of the Laws of 1984.

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

Order reversed, without costs, and case remitted to the Appellate Division, Third Department, with directions to dismiss the wife’s appeal to that court and for consideration of issues, if any, not reached by that court on the husband’s appeal with respect to action No. 2. Question certified answered in the affirmative.


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    City of Rochester, Respondent, v Angelo Chiarella et al., Respondents, and Stephen J. Sercu et al., Appellants.
    Argued September 13, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Joseph A. Regan and Mary Jane Angelone for appellants.

      Louis N. Kash, Corporation Counsel, for City of Rochester, respondent.

      Kenneth A. Payment for subclass A2, respondents.

      Edward H. Fox and Karl S. Essler for Angelo Chiarella, respondent.

      Byron Johnson for subclass B, respondents.

      Michael A. Rosenbloom for subclass C, respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice John H. Doerr at the Appellate Division (98 AD2d 8) other than as it relates to the Statute of Limitations defense, that defense having been withdrawn. Question certified answered in the affirmative. We add that on this appeal the effect of the claims of nonprotestors on the right of protestors to full refund is not before us.

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


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    In the Matter of Sharon GG., Appellant, v Duane HH. et al., Respondents.
    Argued September 5, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Donald, M. Sukloff for appellant.

      Richard N. Aswad for Michael GG., respondent.

      James C. Gacioch for Duane HH., respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for the reasons stated in the opinion by Justice Howard A. Levine (95 AD2d 466).

In view of the grounds on which we affirm we have no reason to consider or decide whether, pursuant to section 532 of the Family Court Act, a wife may ever compel a blood test of her husband nor do we consider whether the best interests of the child may require the court to compel the husband to submit to a blood test.

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

Order affirmed, without costs, in a memorandum.


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    In the Matter of Marilyn Daul, Respondent, v Board of Education of the Mahopac Central School District, Appellant, et al., Respondent. In the Matter of Beatrice Dionisio, Respondent, v Board of Education of the Mahopac Central School District, Appellant, et al., Respondent.
    Argued September 12, 1984;
    decided October 11, 1984

      APPEARANCES OF COUNSEL

      Ronald A. Longo for appellant.

      Norma F. Jacobson for respondents.
   OPINION OF THE COURT

Memorandum.

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

These article 78 proceedings were commenced by the two most senior teachers on a “preferred eligible list” of the Mahopac Central School District, to challenge respondent’s appointment of one less senior as a substitute for a teacher on sick leave. Central to each proceeding is the question whether a vacancy within the meaning of subdivision 3 of section 2510 of the Education Law, entitling those on the eligible list to move up, was created for the 1981-1982 school year when a teacher who had been on sick leave for one and one-half years notified respondent in June 1981 that poor health prevented her from fulfilling her duties and shortly thereafter submitted her resignation (effective June 1982), which was accepted by the Board. In these circumstances, unlike Brewer v Board of Educ. (51 NY2d 855), where the incumbent teacher had taken a short-term leave of absence, we cannot say that the Appellate Division erred in the conclusion that a “vacancy” existed.

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

In Matter ofDaul v Board ofEduc.: Order affirmed, with costs, in a memorandum.

In Matter of Dionisio v Board of Educ.: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v David Lane, Respondent.
    Submitted September 4, 1984;
    decided October 11, 1984
   Motion to dismiss the appeal granted and the appeal dismissed upon the ground that the determination of 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]).


text:
    In the Matter of Eleanor M. Leonard, Respondent, v Joseph F. Leonard, Appellant.
    Submitted September 17, 1984;
    decided October 11, 1984
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division affirming the contempt adjudication, dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution; motion otherwise denied.


text:
    Jules Scher, Appellant, v Warner F. Apt et al., Respondents.
    Submitted September 14, 1984;
    decided October 11, 1984
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the papers submitted do not comply with section 500.11 (d) (22 NYCRR 500.11 [d]) of the Court of Appeals Rules of Practice.


text:
    In the Matter of Socialist Workers Campaign’84 et al., Appellants, v New York State Board of Elections et al., Respondents.
    Argued October 12, 1984;
    decided October 15, 1984

      APPEARANCES OF COUNSEL

      Lewis B. Oliver, for appellants.

      Thomas Zolezzi and Stanley L. Zalen for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (105 AD2d 486).

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


text:
    In the Matter of Alphonso Adams et al., on Behalf of Themselves and All Other Pretrial Detainees Represented by the Monroe County Public Defender, Appellants, v Andrew P. Meloni, as Monroe County Sheriff, Respondent.
    Argued September 11, 1984;
    decided October 16, 1984

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellants.

      JohnD. Doyle, County Attorney (Deborah Gerber Farber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On August 13, 1982, petitioners, pretrial detainees awaiting trial upon felony charges, were transferred from the Monroe County Jail to the Yates County Jail. The purpose of the transfer to the Yates County Jail, which is approximately a distance of 60 miles from the Monroe County Jail, was to alleviate severe overcrowding at the Monroe County facility. Petitioners challenged the transfer on statutory and constitutional grounds relating to access of counsel.

Although the petitioners have since been released or returned to Monroe County Jail and are no longer affected by the transfer, it was not error for the Appellate Division not to dismiss the appeal as moot as it presents an important question of statutory construction which is likely to recur.

The transfer of petitioners by the Monroe County Sheriff was accomplished pursuant to clear statutory authority. Subdivision 1 of section 504 of the Correction Law provides that if a county jail becomes unsafe or unfit for the confinement of some or all of the inmates, the State Commission of Correction must designate another suitable place within the county, or the jail of any other county, for the confinement of such inmates. By order of the State Commission of Correction, dated August 11, 1982, the Yates County Jail was designated as a substitute jail for the Monroe County Jail. The hazards associated with an overpopulated prison are manifest and would certainly qualify the Monroe County Jail as “unfit or unsafe” so as to justify the transfer of prisoners.

The Sheriff’s selection of petitioners for transfer was rationally based upon the noneligibility of certain other inmates for transfer. Moreover, the transfer of petitioners was within the discretion of the Sheriff since subdivision 1 of section 504 of the Correction Law permits the transfer of “some or all of the inmates, civil or criminal”, without limitation. Such discretion was unrestricted by the order of the Commission of Correction.

Accordingly, the conduct of the Sheriff, which necessarily reflected a legitimate concern for the safety and well-being of all inmates in his charge, including petitioners, constituted a valid exercise of discretion.

Insofar as petitioners have failed to tender sufficient proof, either documentary or testimonial, of actual deprivation of constitutional guarantees protected by the State and Federal Constitutions, and made no application to present proof, this court does not reach the merits of petitioners’ constitutional claims.

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

Order affirmed, without costs, in a memorandum.


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    The People of the State of New York, Respondent, v George Karabinas, Appellant.
    Decided October 16, 1984
    APPEARANCES OF COUNSEL

      Robert N. Isseks for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s arguments that his suppression motion should have been granted is beyond review in this court since the trial court’s determinations on the points the defendant now disputes involved mixed questions of law and fact which are supported by evidence in the record.

The defendant’s contention that the court erred in denying his request to charge the jury with respect to an alibi defense has not been preserved. At the time the motion was denied the court noted that the statements of the defendant’s girlfriend did not provide an alibi because they related to events occurring after the time of the victim’s death according to the People’s theory at trial. The defendant did not dispute this conclusion at the trial nor did he object to the court’s further statement that there was no other evidence in the record supporting an alibi defense. Indeed the defendant never informed the court as to the basis for the request. Although the defendant now contends that the statement which he made to the police, which was introduced as part of the People’s main case, was sufficient to raise an alibi defense, this point not having been brought to the court’s attention when the alleged error could have been corrected, has not been preserved for our review.

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