text:
    Concert Radio, Inc., Appellant-Respondent, v GAF Corporation et al., Respondents-Appellants.
    Argued September 8, 1988;
    decided November 29, 1988

      APPEARANCES OF COUNSEL

      Earle K. Moore, Michael R. Sonberg and Robert C. Shenfield for appellant-respondent.

      Arthur L. Liman, Max Gitter and Clifford Peterson for respondent-appellant.

      David M. Rice for Listeners’ Guild, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, without costs.

Plaintiff, a business corporation, was formed in 1975 to oppose a plan by Starr Broadcasting Group, Inc., then-owner of radio station WNCN, to convert the format of WNCN from classical to rock music. Plaintiff challenged Starr’s application for renewal of its FCC license and, with the support of two listeners’ groups, filed a competing application for a license. The dispute was resolved when defendant GAF Corporation offered to purchase the station and continue the classical music format. A five-party contract was concluded among plaintiff, defendant, Starr and the two listeners’ groups whereby plaintiff agreed to withdraw its FCC application and defendant agreed to execute an option agreement in plaintiff’s favor. The option agreement, dated April 9, 1976, recited defendant’s intention to operate WNCN "primarily as a classical music station” for at least five years; if within that period defendant "decide[d] to sell Station, or transfer control of Station to someone other than a subsidiary or affiliate of GAF”, plaintiff would have an option to acquire the station at a stipulated formula price (equaling $2.9 million) in order to continue operating WNCN as primarily a classical music station.

On December 29, 1980 — only months before expiration of the five-year option agreement — defendant’s board of directors adopted a resolution finding that it would be advantageous to sell or discontinue certain of the corporation’s business, and directing its officers to "take such actions as may be necessary or appropriate to effect the sale of * * * WNCN.” That announcement was repeated at a press conference and in defendant’s public filings. Plaintiff immediately attempted to exercise its option to purchase the station at the stipulated price, but defendant refused, arguing that in fact there had been no decision to sell WNCN but only a decision to offer the station for sale, and that the option was not triggered until a buyer was identified. The present suit ensued.

After a bench trial, both Supreme Court and the Appellate Division correctly concluded, as a matter of contract interpretation, that defendant’s board resolution, public announcements and public filings manifested an unequivocal decision to sell within the meaning of the agreement, thus triggering plaintiff’s option. On the remaining issue — the appropriate remedy for defendant’s breach of the option agreement — the courts divided. The trial court concluded that specific performance was proper, but the Appellate Division majority held that on this record specific performance was unjustified, and it awarded plaintiff damages.

We affirm the Appellate Division determination, because under existing equitable principles, we cannot say that the denial of specific performance and award of damages (stipulated at $2.6 million) in its stead, was erroneous (see, Da Silva v Musso, 53 NY2d 543, 548; see also, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 195; Gordon v Mazur, 284 App Div 289, affd 308 NY 861).

It is undisputed that plaintiff entered into the option agreement principally to assure continuance of classical music programming at WNCN for the next five years. Since defendant has now operated WNCN as a classical music station for 12 years, the remedy of specific performance is not necessary to effectuate plaintiff’s primary intent. Furthermore, defendant’s breach of the option agreement centered on a genuine disagreement about the meaning of a contractual term (see, Gordon v Mazur, supra). Had defendant waited a few more months before issuing its resolution and public announcement, the five-year option would have expired by its own terms and plaintiff would have had no basis for complaint at all.

Finally, if specific performance were awarded here, defendant would sustain considerable losses, including its substantial cumulative operating losses and the accretion in the station’s value that is attributable to its contributions over the past 12 years. Under these circumstances, the imposition of such a hardship is not warranted (Gordon v Mazur, supra, at 292 ["court will measure relative hardships and prejudices as well as nice legal rights”]). In this case, as the Appellate Division concluded, the legal remedy of damages sufficiently compensates plaintiff for defendant’s breach.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, without costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    John W. Giblin, Sr., Respondent, v Steven G. Murphy et al., Appellants, et al., Defendants.
    Argued October 11, 1988;
    decided November 29, 1988

      APPEARANCES OF COUNSEL

      George H. Barber for appellants.

      Robert P. Lynn, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

On April 20, 1979, plaintiff, president and majority shareholder of Westwood Paper & Hardware Company, Inc., a closely held corporation in the business of wholesale marketing of hardware and paper products since 1955, and Edward Sarraf (the other Westwood shareholder) sold their shares to Sinclair Distributors, Inc., a no-asset corporation organized to buy Westwood. The individual defendants — appellants on this appeal — are the officers, directors and shareholders of Sinclair. The terms of the sale are contained in three agreements executed on April 20, 1979 by Sinclair: a purchase agreement, fixing a price of $200,000 — $40,000 down and $160,000 payable in monthly installments over four years; a promissory note, permitting acceleration in the event of nonpayment; and a pledge agreement, pledging the Westwood stock as security for payment. The pledge agreement further granted plaintiff the right to inspect Westwood’s property and records; provided for written notice to him of corporate action; and in the case of any default allowed him to vote the Westwood shares and call a special shareholders’ meeting to replace defendants as directors. Moreover, under the pledge agreement all distributions accruing to Sinclair from the Westwood shares were to be held in trust and applied against the next installment, and specifically not to be paid to defendants Murphy, Quagliata, "their relatives or any shareholder of Sinclair, or its successors or affiliates.”

In approximately a year Westwood was in bankruptcy. Payments on the note had ceased, plaintiff accelerated the debt, and he commenced the present litigation against Sinclair, Westwood and the individual defendants. After trial, at which only one of the three individual defendants even appeared, Supreme Court awarded plaintiff compensatory as well as punitive damages and attorneys’ fees, concluding that defendants were guilty of fraud and misrepresentations both in the formation and in the operation of the business. With respect to the individuals particularly, the trial court found that, as fiduciaries, they had breached the pledge agreement by receiving distributions of corporate assets, and by failing and refusing to allow plaintiff access to books and records, or notify him of corporate action. The court additionally concluded that the individuals had, by fraud and misrepresentations as to their competence and integrity, induced plaintiff to enter into the agreements. The Appellate Division remitted for a new trial as to attorneys’ fees, and it concluded that fraud in the inducement had not been established, but otherwise affirmed the judgment (97 AD2d 668). After retrial the Appellate Division affirmed the judgment (125 AD2d 884), and this court granted leave to appeal.

While both courts sustained liability against the individual defendants by piercing the corporate veil, we need not and do not reach that issue, because of the independent basis found for recovery against them.

The individual defendants do not dispute that they owed plaintiff a fiduciary duty, as directors, to protect his continuing ownership interest in the stock of Westwood (see also, Business Corporation Law § 717; Alpert v Williams St. Corp., 63 NY2d 557; Matter of Cohen v Cocoline Prods., 309 NY 119, 123). Further, there are affirmed findings of fact supported by the record, that the individuals breached their fiduciary duty to plaintiff in several respects, such as by failing to notify him of certain corporate action and by repeated wrongful diversion of corporate assets to themselves and others. The corporate entity cannot shelter individuals from responsibility for breaches of duty of care they may independently owe as directors (see, Abrams v Allen, 297 NY 52, 55-56). Nor, on this record of wantonly negligent, even reckless conduct, can defendants’ acts be justified as falling within the business judgment rule (compare, New York Credit Men’s Adj. Bur. v Weiss, 305 NY 1 and Sautter v Fulmer, 258 NY 107, with Auerbach v Bennett, 47 NY2d 619).

The award of punitive damages similarly should be sustained. The trial court in extensive findings and conclusions of law characterized defendants’ conduct as out-and-out fraud, and while the Appellate Division in certain respects modified those findings, it determined that defendants’ operation of the business "amounted, at least, to willful or wanton negligence” and to "a wanton or reckless disregard of plaintiff’s rights,” and that they were "grossly negligent and reckless.” (97 AD2d 668, 670, 671, supra.) Under these circumstances we cannot say that the lower courts erred in allowing punitive damages in this case (see, Nardelli v Stamberg, 44 NY2d 500, 503).

Nor can we accept defendants’ argument that the punitive damages award must be overturned because there was no harm aimed at the public generally. Punitive damages are allowable in tort cases such as this so long as the very high threshold of moral culpability is satisfied (see, e.g., Welch v Mr. Christmas, 57 NY2d 143, 150; Cleghorn v New York Cent. & Hudson Riv. R. R. Co., 56 NY 44, 48; see also, Whitney v Citibank, 782 F2d 1106) — as it is here on the established findings of defendants’ wrongful diversion and squandering of corporate assets, granting of excessive credit, payments of salaries to themselves, and other acts constituting willful, wanton and reckless misconduct.

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

Order affirmed, with costs, in a memorandum.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Genesee Lime Products, Inc., Appellant.
    Argued October 18, 1988;
    decided November 29, 1988
    APPEARANCES OF COUNSEL

      Thomas G. Collins for appellant.

      Howard R. Relin, District Attorney (Robert Mastrocola and Alan Cruikshank of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

In 1962, défendant purchased land to mine lime for agricultural purposes, and to that end it obtained an excavation permit from the Town of Wheatland. The town ordinance provided that no excavation was to be made to "a depth which, after the expiration of the permit, cannot be leveled to provide adequate drainage over contiguous land and not allow a pool of water to accumulate.” (Code of Town of Wheatland § 4-4 [A] [2].) Defendant’s first permit expired July 14, 1963, the second December 31, 1963, and the third December 31, 1965; each permit incorporated the town ordinance by reference. Excavation stopped by 1965, but backfilling of portions of the excavated land has continued into the present decade..

In 1975 the Freshwater Wetlands Act (ECL art 24) went into effect. On this appeal it is undisputed that the premises in issue became wetlands subject to the ECL. What is disputed is whether defendant’s continued activity in 1985 of backfilling approximately two to three acres of the excavated land to its prior level constitutes the misdemeanor of altering a freshwater wetland area without a permit from the Department of Environmental Conservation (DEC) (ECL 24-0701 [1]). Defendant was convicted in Justice Court and fined $500, and County Court affirmed.

Defendant’s central argument is that backfilling was authorized by the town excavation permits, and it was therefore exempt from the DEC permit requirement by virtue of the "grandfather clause” contained in ECL 24-1305. That statute provides an exemption for "any land use, improvement or development for which final approval shall have been obtained prior to the effective date of [the Act] from the local governmental authority or authorities having jurisdiction over such land use.” (ECL 24-1305.)

The town excavation permits issued to defendant between 1962 and 1965 do not require or authorize defendant to restore the premises to their original level. There is no provision to be found in the permits, in the town ordinance, or in the record before us that permitees fill back the excavated areas; indeed, in the decades since expiration of the permits the town has never taken any action to compel restoration of the premises. The omission of any provision for backfilling from the pertinent paragraph of the town ordinance (Code of Town of Wheatland § 4-1 [A] [2]) is particularly striking when contrasted with the very next paragraph of the ordinance, dealing with gravel pits. With respect to gravel pits only, the ordinance specifies that the area is to be covered, reseeded and restored to pasture land at the conclusion of the excavation (Code of Town of Wheatland § 4-4 [A] [3]).

Nor can the courts imply the missing authorization. Courts are not free to speculate or assume that backfilling is an expected incident of excavation operations (see, dissenting opn, at 778). Judicial determinations can only be based on the record made by the parties. In this case, the record contains no evidence to support an assumption that backfilling is expected, or that it was contemplated by the ordinance or permits. The record supports only the contrary conclusion.

Similarly, the handwritten notation on one of the permits— "surplus of spoils to be stockpiled and used to fill excavation areas in future” — does not constitute approval for backfilling wetlands. The notation appears on but one of defendant’s three permits; contrary to the dissent (at 777), that permit does not on its face require or even authorize backfilling, but only limits defendant to the use of spoils in the event that there is later backfilling; and it would in any event be unavailing to this defendant, because there is an undisturbed factual finding that it was backfilling the wetlands with offsite material, and therefore violated the permit.

The dissent’s reliance on the intent of the "grandfather clause” to avoid severe hardship (dissenting opn, at 776) also is misplaced here. The "grandfather clause” was motivated by legislative recognition that real injustice could result if approved projects — particularly ongoing construction projects— suddenly had to be halted in midstream because of the new law. Here, however, defendant not only lacked approval for backfilling the wetlands, but also its activity takes place a full 20 years after the expiration of one-year permits. This is not the picture of hardship that gave rise to the "grandfather clause”. Moreover, defendant acknowledged before the trial court that it knew it could have sought a permit for its recent operations from the DEC (see, 6 NYCRR 662.2 [dl; and 663.3 [o]), yet it chose not to do so. Whether or not defendant’s deliberate failure to follow the administrative permit procedure should preclude judicial review — as the DEC urges— defendant cannot be heard to complain of inequity it might have avoided.

Titone, J.

(dissenting). Since one of Genesee’s permits required Genesee "to fill excavation areas in [the] future”, I believe defendant’s backfilling activities obtained "final approval” within the meaning of ECL 24-1305. Therefore, Gene-see’s backfilling activities are exempt from the Freshwater Wetlands Act and, accordingly, I would reverse the order of the County Court and dismiss the charges against defendant.

The Freshwater Wetlands Act (ECL art 24) (the Act) became effective on September 1, 1975, and was enacted to protect and conserve freshwater wetlands. Less than a year later, the Legislature added ECL 24-1305 in order to ameliorate the stringent requirements of the Act as applied to preexisting nonconforming uses. This "grandfather clause” provides that, "[t]he provisions of [the Act] shall not apply to any land use, improvement or development for which final approval shall have been obtained prior to the effective date of [the Act] from the local governmental authority or authorities having jurisdiction over such land use” (ECL 24-1305).

The legislative intent of the "grandfather clause” is clear. It was designed to remedy the gross inequity and severe hardship incurred by owners and developers whose previously authorized and commenced projects suddenly became subject to the requirements of the Act (see, Mem of Assemblyman Lee, 1976 NY Legis Ann, at 212-213; Budget Div Mem, Bill Jacket, L 1976, ch 771; Department of Environmental Conservation Mem, Bill Jacket, L 1976, ch 771). Prior to the enactment of the "grandfather clause”, such individuals were forced to stop their projects, and seek a permit from the Department of Environmental Conservation (see, ECL 24-0701 [1]). Through the enactment of ECL 24-1305, the Legislature has unequivocally exempted from the Act any land use that received final approval from the appropriate local government body prior to September 1, 1975 (see, Matter of Miracle Mile Assocs. v Department of Envtl. Conservation, 98 Misc 2d 519, affd 73 AD2d 807; Dwight Enters., DEC Declaratory Ruling 24-03 [1979]).

Against this backdrop, the sole inquiry is whether Genesee obtained "final approval” by the local government prior to the effective date of the Act. Final approval is defined to include, "the issuance of a building permit or other authorization for the commencement of the use, improvement or development for which such permit or authorization was issued” (ECL 24-1305 [c] [emphasis added]). Through a simple application of the statute to the facts, I believe it is beyond question that Genesee obtained "final approval”, "for the commencement of the use”, prior to the effective date of the Act.

It is undisputed that Genesee obtained three separate permits between 1962 and 1965 from the Town of Wheatland. These excavation permits constitute "final approval” because they authorized Genesee to commence mining for marl prior to the effective date of the Act. When the last permit technically expired on December 31, 1965, Genesee no longer had the authority to continue mining the land for marl. However, one of the permits specifically required Genesee to stockpile surplus spoils so that they could be "used to fill excavation areas in [the] future”. Thus continued backfilling was part of the authorized activity; the expiration date in the permit applied only to the authorization to excavate, not the subsequent reclamation of the land. Further as the language of the permit makes clear, the restoration of Genesee’s property after the expiration of the permit was not just permitted, but required. Therefore, Genesee’s "use”, for which "final approval” was obtained, included restoration of the land in the form of backfilling.

Further support that restoration is contemplated after the expiration of the permits is found in a provision of Wheat-land’s excavation ordinances, which are expressly incorporated into the terms of the permits. One of the ordinances provides that no excavation is to be made to "a depth which, after the expiration of the permit, cannot be leveled to provide adequate drainage over contiguous land and not allow a pool of water to accumulate” (Code of Town of Wheatland § 4-4 [A] [2]; emphasis added). While the majority contrasts this paragraph with an inapplicable paragraph of the town ordinance pertaining to gravel pits (majority mem, at 775), they have ignored the fact that the ordinance also contemplates some kind of activity following the official expiration of the permits. In fact, the activity contemplated is the backfilling for which defendant is being prosecuted. Thus, even though the other two permits are silent on the question of backfilling, there is no reason to assume that Genesee could have excavated the land and then simply walked away leaving large cavities to collect rain water.

In the face of the clear mandate to backfill contained in one of the permits, the majority somehow concludes "[t]here is no provision * * * in the record before us that [excavation] permitees fill back the excavated areas” (majority mem, at 774). To support this view, the majority points to the fact that the town has never taken formal action to compel defendant to backfill. This argument misses the point for two reasons. First, the "grandfather clause” exempts activities which have been permitted by the local authority. The fact that a locality may not be affirmatively requiring the activity has no impact on whether "final approval” has been obtained. Second, the town has never taken formal action to curtail defendant’s operation. Actually, by all indications, the town was aware of the backfilling and approved of it. In fact, in 1978 and 1983, the town granted variances to allow construction on newly filled areas of Genesee’s land. Had the town not approved of Gene-see’s activities, it does not require a great leap of faith to believe that the variances would not have been granted.

The majority also believes defendant should not be allowed to backfill in perpetuity. Although this concern is laudable, the majority’s argument is misplaced. The "grandfather clause” on its face indicates no concern with how long it takes to complete a land use or development given final approval by a local government (see, Dwight Enters., DEC Declaratory Ruling 24-03, at 101 [1979]). Indeed, as stated previously, the "grandfather clause” simply requires that the town permits authorized Genesee to commence its mining prior to the effective date of the Act.

Moreover, the majority has forgotten that the DEC, not the town, has brought this prosecution. The present criminal prosecution should not concern whether Genesee has violated town permits or local ordinances. Such an action, if one exists, should be brought by the Town of Wheatland. It was the town that granted Genesee the prior authorization .to excavate, and it should be the town that decides whether the backfilling is improper or untimely. While the DEC is empowered to monitor wetlands, the “grandfather clause” precludes DEC action in the face of “final approval”. Since Genesee obtained the permits prior to the Act, and one of the permits specifically required Genesee to backfill, Genesee is exempt from the Wetlands Act. That defendant might have sought an additional permit from the DEC (majority mem, at 775-776) is of no legal consequence since the “grandfather clause” does not require such action.

Finally, I am most concerned that the DEC has chosen a criminal prosecution to challenge Genesee’s activities which have been ongoing for more than 20 years. At the very least, a valid question exists concerning the application of the “grandfather clause” to Genesee’s activities. That being so, resolution of the singular legal question involved by subjecting defendant to the stigma of a criminal conviction instead of proceeding civilly or administratively hardly seems appropriate or fair.

For the foregoing reasons, I conclude that Genesee’s backfilling activities fall within the protection of the “grandfather clause”, and I would reverse the order of the County Court and dismiss the charges against defendant.

Chief Judge Wachtler and Judges Kaye, Alexander and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion in which Judges Simons and Hancock, Jr., concur.

Order affirmed in a memorandum.

       Without a DEC permit, ECL 24-0701 prohibits "any form of dumping, filling, or depositing of any soil, stones, sand, gravel, mud, rubbish or fill of any kind, either directly or indirectly” (ECL 24-0701 [2]).


text:
    The People of the State of New York, Respondent, v James C. Grafton, Appellant.
    Argued October 20, 1988;
    decided November 29, 1988

      APPEARANCES OF COUNSEL

      Richard T. Sullivan and Thomas M. Moll for appellant.

      Kevin M. Dillon, District Attorney (Louis A. Haremski and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As the Appellate Division recognized, the factors to be considered by that court on a motion pursuant to CPL 30.30 are not the same as those determining the reasonableness of an appellant’s request for an extension of time to perfect an appeal. We cannot say that the Appellate Division erred as matter of law in concluding that the period April 20 to August 30, 1985 was reasonable and therefore excludable (CPL 30.30 [4]) on the factors presented in this case.

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

Order affirmed in a memorandum.


text:
    Samuel Ben Zev, Appellant, v Louis Merman et al., Respondents.
    Argued October 12, 1988;
    decided November 29, 1988

      APPEARANCES OF COUNSEL

      Michael C. Wimpfheimer for appellant.

      Eugene W Bechtle, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

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

What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case (see, Ballen v Potter, 251 NY 224; Murray Co. v Lidgerwood Mfg. Co., 241 NY 455, 459). Included within a court’s determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance (see, Murray Co. v Lidgerwood Mfg. Co., supra, at 459; Ballen v Potter, supra; 76 N. Assocs. v Theil Mgt. Corp., 114 AD2d 948; Schoen v Grossman, 33 Misc 2d 490, affd 17 AD2d 778; Pomeroy, Specific Performance of Contracts § 396 [3d ed]). The determination of reasonableness must by its very nature be determined on a case-by-case basis.

Accordingly, it cannot be said that the Appellate Division erred as a matter of law in determining that the time set by defendants for performance was reasonable.

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

Order affirmed, with costs, in a memorandum.


text:
    Rachel Balsam et al., Appellants, v Delma Engineering Corporation et al., Respondents, et al., Defendants.
    Submitted September 19, 1988;
    decided November 29, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied plaintiffs motion to amend the complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gene Crescenzi, a Suspended Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted September 6, 1988;
    decided November 29, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as granted petitioner’s motion to hold respondent-appellant in contempt, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York ex rel. Philip Dinitz, Appellant, v Marron Hopkins, Warden, et al., Respondents.
    Decided November 29, 1988
   Appeals transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Mark R. Hedgepeth, Appellant, v George Merz, Respondent.
    Decided November 29, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that plaintiff, having stipulated to reducing the amount of damages to which he is entitled, is not aggrieved by the modification for purposes of appeal (see, CPLR 5511; Smith v Hooker Chem. & Plastics Corp., 69 NY2d 1029; Dudley v Perkins, 235 NY 448).


text:
    Marilyn Lichtman, Doing Business as DeWitt Nursing Home, Appellant, v Rhoda Grossbard, Individually and as Conservator for Jules Grossbard, Respondent.
    Argued September 8, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Arnold D. Roseman and Irving N. Selkin for appellant.

      Rhoda Grossbard, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Plaintiff commenced this action to recover an outstanding balance due for nursing home services rendered to the defendant’s husband as a patient prior to his death. In the complaint, the plaintiff sought to recover against defendant as the conservator for her husband. The complaint also alleges that the defendant is individually liable because she specifically requested the services or expressly agreed, orally and in writing, that she would pay for them. The defendant denied that she had personally assumed liability to pay the bills and claimed that plaintiff’s testator had agreed to waive the outstanding balance. Defendant was unable to establish the waiver defense, however, because she was precluded by the Dead Man’s Statute (CPLR 4519) from testifying with respect to statements made by the plaintiff’s testator.

The trial court initially entered judgment against her in her capacity as conservator, but found that she was not individually liable. On reargument however, the court found that the defendant had expressly agreed to pay for the services. Alternatively the court held that there was a statutory duty, imposed by Domestic Relations Law § 32 (2), to pay for the services provided to her husband. Thus, judgment was also entered against her in her individual capacity.

The Appellate Division modified on the law and the facts by deleting the portion of the judgment holding her individually liable. The court found no express agreement by the defendant to personally pay for the services. The court also found no statutory liability, noting that the plaintiff had made no claim pursuant to the statute relied upon by the trial court, that the subsection had been deleted, and that in any event it had not imposed liability on a wife to pay a third party for services provided to her husband. Thus the judgment was sustained to the extent that defendant was held liable as conservator. The plaintiff has now appealed to this court.

The Appellate Division correctly held that the plaintiff was not entitled to recover on any of the grounds asserted in the complaint. On this appeal the plaintiff claims that the common-law rule requiring a husband to pay for his wife’s necessaries (Garlock v Garlock, 279 NY 337) is antiquated or violates equal protection and that the law should be changed to impose on a wife the same obligation with respect to her husband. This issue, however, was not preserved for our review.

The constitutional challenge to the common-law rule was not raised in the trial court and may not be considered by this court for the first time on appeal (see, e.g., Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828; cf., Matter of Barbara C., 64 NY2d 866; Matter of Mingo v Pirnie, 55 NY2d 1019). Neither did the plaintiff urge that the common-law rule should be extended on policy grounds. Indeed, a fair reading of the complaint shows that the plaintiff did not rely on the common-law rule with respect to necessaries as a basis for recovery. The plaintiff’s contention throughout the complaint was that the defendant should be held individually liable for the cost of the services rendered to her husband because she had voluntarily assumed the obligation by specific requests for the services or expressed oral and written agreements to pay for them.

In short, the case was pleaded and tried on the theory that the plaintiff had voluntarily assumed the obligation of paying for the services, and not on the theory that it is, or should be, an obligation imposed as a matter of common law because of her status as the spouse of the recipient. It is well settled that when a case has been pleaded and tried on one theory, this court cannot grant recovery on another theory (Macina v Macina, 60 NY2d 691; Collucci v Collucci, 58 NY2d 834, 836).

These principles are not mere technicalities, nor are they only concerned with fairness to litigants, important as that goal is. They are at the core of the distinction between the Legislature, which may spontaneously change the law whenever it perceives a public need, and the courts which can only announce the law when necessary to resolve a particular dispute between identified parties. It is always tempting for a court to ignore this restriction and to reach out and settle or change the law to the court’s satisfaction, particularly when the issue reached is important and might excite public interest. However, it is precisely in those cases that the need for judicial patience and adherence to the common-law adversarial process may be — or is often greatest.

Because the issue is not properly before us, our affirmance should not be construed as a rejection of the view of other courts and Judges Hancock or Titone that the necessaries rule should be changed as a matter of common law or constitutional principles (see, Annotation, Modem Status of Rule that Husband is Primarily or Solely Liable for Necessaries Furnished Wife, 20 ALR4th 196), and that it should either be abolished, as Judge Titone believes, because its validity has been undermined by changing legal and social concepts leaving little justification for its retention (see, Condore v Prince George’s County, 289 Md 516, 425 A2d 1011; Schilling v Bedford County Mem. Hosp., 225 Va 539, 303 SE2d 905; see, Comment, The New Doctrine of Necessaries in Virginia, 19 U Rich L Rev 317, 320-321), or that it should be expanded, as Judge Hancock believes, to impose a reciprocal obligation on both spouses because that would reflect the modern view of marriage as a economic partnership, would be consistent with the policy underlying the current support laws and would continue to encourage retail consumer creditors to supply nonworking spouses with credit (see, e.g., Jersey Shore Med. Center—Fitkin Hosp. v Estate of Baum, 84 NJ 137, 417 A2d 1003; North Carolina Baptist Hosps. v Harris, 319 NC 347, 354 SE2d 471; Richland Mem. Hosp. v Burton, 282 SC 159, 318 SE2d 12; Mahoney, Economic Sharing During Marriage: Equal Protection, Spousal Support and the Doctrine of Necessaries, 22 J of Fam L 221). If the Legislature does not address the problem we have no doubt that an appropriate case at an appropriate time will present us with the opportunity to properly rule on the issue.

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

Order affirmed, with costs, in a memorandum.

       Judges Hancock and Titone would reach the merits because in their view the issue was preserved.


text:
    In the Matter of the Civil Service Employees Association, Inc., et al., Respondents, v Public Employment Relations Board et al., Appellants, and Luis Diaz, Intervenor-Appellant.
    Argued October 13, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Jerome Thier and Martin L. Barr for Public Employment Relations Board and others, appellants.

      August J. Ginocchio for intervenor-appellant.

      Marilyn S. Dymond and Marjorie E. Karowe for respondents.

      Richard E. Casagrande and Jeffrey G. Plant for New York State Public Employee Federation, AFL-CIO, amicus curiae.

      James R. Sandner and Robin A. Romeo for New York State United Teachers, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Vito Bertini, a grievance representative of the Civil Service Employees Association, Inc., assisted Luis Diaz, an employee of the State Department of Mental Hygiene, in filling out a grievance form requesting arbitration. As a result of a series of mistakes and omissions on the part of Bertini and other CSEA representatives, the charges were not timely filed and the grievance was dismissed. Thereafter, Diaz’s employment was terminated.

Thereafter, Diaz filed an improper practice charge against CSEA with the Public Employment Relations Board (PERB). The Administrative Law Judge (ALJ), in a letter to Diaz’s attorney, framed the charges as an allegation that (1) CSEA’s untimely appeal to arbitration was grossly negligent, (2) CSEA’S untimely appeal was knowing, deliberate and in bad faith, and (3) CSEA’s refusal to seek a court review of the arbitration award was in breach of its obligations. He requested counsel to clarify any incomplete or overbroad statement of the charges but the attorney did not respond. All of the charges were dismissed by the ALJ after a hearing and PERB confirmed that decision. However, PERB went on to find that CSEA was grossly negligent in failing to adequately train Bertini or to provide him with adequate organizational support and thus breached its duty of fair representation.

Neither the amended details of the actual charge nor the statement of the charge by the AU allege inadequate training or insufficient organizational support and Diaz’s attorney did not specify a charge of inadequate training or organizational support in his exceptions to the ALJ’s order as PERB’s Rules of Procedure require (see, 4 NYCRR 204.10).

PERB’s review of the ALJ’s decision is limited to matters included in the original charge or developed at the formal hearing. Any exception to the ALJ’s ruling not specifically raised is waived (see, Matter of Margolin v Newman, 130 AD2d 312, appeal dismissed 71 NY2d 844; 4 NYCRR 204.10 [b] [4]). Therefore it was improper for PERB to base its decision on inadequate training and support when these issues were not raised in Diaz’s charges or included in his exceptions to the AU’s order.

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

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Metropolitan Property & Liability Insurance Company, Respondent, v Israel Falkovitz, Appellant.
    Argued October 19, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Isaac Tessler for appellant.

      Eugene Staub for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

In a dispute involving uninsured motorist coverage, the Appellate Division — in certifying a question to this court— noted an apparent conflict "between the First and Second Departments on the issue of whether New Jersey law applies (see, Matter of Allstate Ins. Co. v Walsh, 99 AD2d 987, [1st Dept] and Allcity v Williams, 120 AD2d 1 [2d Dept])”. The parties’ briefs deal solely with the issue whether physical contact with another vehicle must be proven for uninsured motorist coverage of a New York vehicle in a New Jersey accident; they assume that New York law requires physical contact (see, Insurance Law § 5217; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116), but New Jersey law does not (NJ Stat Annot §§ 17:28-1.1, 39:6-76; Perez v American Bankers Ins. Co., 81 NJ 415, 409 A2d 269).

We are, however, precluded by the established facts of this case from reaching that issue. Under both New York and New Jersey law, some involvement of another vehicle is a prerequisite to uninsured motorist coverage. But here, there is an affirmed finding supported by the record that "there was no evidence of involvement by any vehicle other than the one being operated by the claimant and no evidence of any contact with any other vehicle.” Thus, the result is the same whether New York or New Jersey law applies.

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

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Nazif Vrlaku, Appellant.
    Argued October 19, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Stanley M. Meyer for appellant.

      William L. Murphy, District Attorney (Yolanda L. Rudich and Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly determined that during the period of defendant’s detention by the Federal authorities he was unable to stand trial in Richmond County and that, therefore, the running of the 180-day limitation period for disposition of the pending indictments was tolled pursuant to article VI (a) of the Interstate Agreement on Detainers (contained in CPL 580.20) (see, United States v Roy, 830 F2d 628 [7th Cir 1987]; Young v Mabry, 596 F2d 339 [8th Cir 1979]; State v Binn, 196 NJ Super 102, 481 A2d 599, mod 208 NJ Super 443, 506 A2d 67).

Defendant’s reliance on People v Torres (60 NY2d 119) to support dismissal of the indictments is misplaced. In that case, the issue was whether the 180-day period for trial of charges pending against a defendant in Queens County should have been tolled during the defendant’s detention in Suffolk County on other charges pending against him there. Suffolk County had refused to return the defendant to Queens County despite several court orders to do so, causing the 180-day period to expire before the authorities in Queens County could bring the defendant to trial. We held that the 180-day limitation period that commenced once the defendant delivered his request for final disposition of the untried charges to the Queens County authorities (CPL 580.20, art III [a]) was not tolled during the period of his detention in Suffolk County.

Central to the holding in Torres was our determination that the tolling provision of the Agreement on Detainers was not intended to operate where the defendant’s "unavailability for trial is occasioned not by the condition or conduct of the defendant but by the People of the State in their prosecutorial capacity” (People v Torres, 60 NY2d, at 126, supra [emphasis added]). Thus, our decision rested on the particular facts of that case, involving a rivalry between two counties within the jurisdiction of the same State causing "factionalism of the prosecutorial arm of the State” (People v Torres, 60 NY2d, at 127, supra). The rationale of Torres is inapplicable here, where the delay in prosecuting defendant was due not to such intrastate factionalism, but rather to the competing law enforcement interests of separate party States to the Agreement on Detainers.

During the time in question, defendant was detained by Federal authorities seeking to prosecute him on charges pending in the Northern District of Texas and the Southern District of New York. Under these circumstances, the fact that defendant has committed crimes in multiple sovereign jurisdictions may not serve to protect him against lawful prosecution by New York State. By defendant’s own conduct, he subjected himselfnto prosecution by both Federal and State authorities, rendering himself unavailable for trial in Richmond County during the time he was being prosecuted for Federal crimes and in Federal custody in Dallas and New York. Thus, the People should not be penalized for their inability to try defendant within 180 days of their receipt of his request for final disposition. As we conclude that the period of defendant’s Federal detention is not chargeable to the People, we need not decide whether the trial court should have granted the People a continuance nunc pro tunc.

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

Order aifirmed in a memorandum.


text:
    Arthur M. Farrar, as Administrator of the Estate of Gladys L. Farrar, Deceased, Respondent, v Brooklyn Union Gas Co., Appellant. (And a Third-Party Action.)
    Argued October 14, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Timothy J. Flanagan for appellant.

      John J. Brennan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs; defendant’s motion for summary judgment should be granted dismissing the complaint insofar as it seeks pecuniary damages based on loss of an estate tax credit; and the certified question should be answered in the negative.

The administrator of decedent’s estate commenced this wrongful death action seeking recovery of funeral expenses and a loss of inheritance of $125,562 resulting from the loss of a Federal estate tax credit. The administrator, successful in the lower courts, contended that had decedent lived until 1987 instead of dying by asphyxiation in 1982 as a result of defendant’s alleged negligence, the estate would have realized the full benefit of the Federal estate tax credit and no Federal estate tax would have been due and paid (26 USC § 2010 [a]).

The award of damages in a statutory wrongful death cause of action is strictly limited to "fair and just compensation for the pecuniary injuries resulting from the decedent’s death” (EPTL 5-4.3 [a]). Absent express legislative authority, and there is none here, future tax liability is not considered when determining pecuniary loss (see, Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198, 205). In this case, the administrator seeks recovery not of an earned, fixed tax credit, but of an inchoate one which decedent may have earned in futuro assuming at least these key factors remained the same — the amount and assets of the estate, the decedent’s tax status, and the tax law itself. These are uncertain, dependent on future changeable events and, thus, inherently speculative. Such a loss is not compensable.

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

Order reversed, etc.


text:
    Lawrence M. Howell et al., Appellants, v Dundee Fair Association et al., Respondents.
    Argued October 20, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Kevin J. McDonald for appellants.

      Robert A. Barrer for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured at a car racetrack while serving on the volunteer fire and ambulance crew. He paid no fee to enter the racetrack, but prior to entering the pit area where he was injured, he signed a waiver and release of liability for any injury sustained while in the restricted area. The only issue presented to us in this personal injury action is whether the release is void under General Obligations Law § 5-326, which provides in pertinent part: "Every * * * agreement * * * in or in connection with * * * any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any * * * place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability * * * shall be deemed to be void as against public policy and wholly unenforceable.”

Supreme Court granted partial summary judgment to the defendants (the owner-operators), holding General Obligations Law § 5-326 did not void the release because plaintiff was not a "user” of the raceway as defined in the statute. The Appellate Division granted the defendants’ motion for summary judgment in its entirety, concluding that inasmuch as General Obligations Law § 5-326 did not void the release there were no issues of fact left to be tried and defendants were entitled to a dismissal of the lawsuit. Its rationale on the key issue, however, was that "[pjlaintiff did not purchase an admission ticket, so plaintiff did not sign the release agreement in connection with or collateral to a ticket of admission.” (135 AD2d, at 1134.)

We affirm the dismissal of the action based on the affirmative defense of the release because General Obligations Law § 5-326 is unavailable to void it in this case. Plaintiff did not, of course, purchase an admission ticket, but the statute by its own terms is not so limited and in that respect the Appellate Division rationale is unduly restrictive. The statute voids any agreement, not only those embodied on a ticket of admission which purports to exempt owners or operators from liability when a fee or other compensation is paid for the use of a facility. Here, notwithstanding plaintiffs execution of the release agreement itself and the "other compensation” paid to the owner-operators in the form of his volunteer services, plaintiffs cause is nevertheless barred by the release because plaintiff was not a "user” of the facility within the meaning of the remedial statute as a matter of law. Plaintiff, by his own admission on this record, was at the raceway solely to work as a member of the volunteer fire and rescue squad. Under these circumstances, the statute has no effect on the validity of the release.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Shaykh M. Abdurrahman, Appellant, v Carl D. Berry, as Superintendent of Woodbourne Correctional Facility, Respondent.
    Submitted October 11, 1988;
    decided December 1, 1988
   Motion for leave to appeal dismissed upon the ground that (1) the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution, and (2) the letter sought to be appealed from is neither a judgment, nor an order, from which an appeal to this court may be taken (CPLR 5512 [a]; 5602 [a]).


text:
    Gerta C. Conway et al., Respondents, v Leonard Davis et al., Respondents, and William Leighton, Proposed Intervenor-Appellant.
    Decided December 1, 1988
   Appeal from Justice Kassal’s order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (NY Const, art VI, § 3 [b]; CPLR 5601).

Appeal from the Supreme Court order transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    CBS Inc., Appellant, v Ziff-Davis Publishing Co. et al., Respondents, et al., Defendant.
    Submitted September 19, 1988;
    decided December 1, 1988
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.

Chief Judge Wachtler taking no part.


text:
    Edward B. Fitzpatrick, Jr. Construction Corp. et al., Appellants, v County of Suffolk et al., Defendants, and Charles T. Walsh et al., Respondents.
    Submitted August 15, 1988;
    decided December 1, 1988
   Motion for leave to appeal from so much of the Appellate Division order as dismissed the complaint as against respondent Converse Ward David Dixon denied; motion otherwise dismissed upon the ground that the order insofar as it dismissed the complaint as against respondents Charles T. Walsh and Bowe, Walsh and Associates does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Arthur T. Mott, Appellant, v Division of Housing and Community Renewal of the State of New York et al., Respondents.
    Submitted October 11, 1988;
    decided December 1, 1988
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the denial of petitioner’s motion to amend the petition, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Gaetana Pizzirusso, Appellant, v Allstate Insurance Company, Respondent.
    Decided December 1, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Wilfredo Soto et al., Appellants-Respondents, v City of New York, Respondent-Appellant, et al., Defendants.
    Submitted October 3, 1988;
    decided December 1, 1988
   Motion for leave to appeal denied. Cross motion for leave to appeal dismissed as untimely. CPLR 2215 does not effect an extension of the time provided in CPLR 5513 (c) when leave to appeal is sought by cross motion.


text:
    Walter D. Peek, Inc., Appellant, v Murray Traub, Also Known as Morris B. Weintraub, et al., Respondents.
    Submitted August 22, 1988;
    decided December 1, 1988
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, the judgment affirmed by that order having been entered on an illusory stipulation.


text:
    The People of the State of New York, Respondent, v Collie Madison, Appellant.
    Argued November 16, 1988;
    decided December 15, 1988

      APPEARANCES OF COUNSEL

      Carol A. Zeldin and Philip A. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Barbara D. Underwood and Cheryl Swanson Miller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The undisturbed factual findings regarding the voluntariness of defendant’s statements are supported by the record and are therefore beyond our further review. Moreover, under the facts and circumstances surrounding the interrogation of defendant, it cannot be said that as a matter of law defendant’s confessions were the products of unlawful promises or representations made by the police. Additionally, although the charge to the jury was not the model of clarity, taken as a whole it adequately conveyed that the second confession should be disregarded if the jury found that it was the fruit of a prior unlawful confession.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Anthony Steven Bailey, Appellant.
    Argued November 18, 1988;
    decided December 15, 1988

      APPEARANCES OF COUNSEL

      Richard N. Allman and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Carol Teague Schwartzkopf Barbara D. Underwood and Nikki Kowalski of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At defendant’s trial, it was discovered that a prosecution witness — a privately employed security guard — had made a report to his employer regarding the incident for which defendant was being prosecuted. Defendant claims that the People’s failure to discover and preserve the statement constitutes a Rosario violation (see, CPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286). The lower courts found, however, with sufficient support in the record, that the People did not know of the statement’s existence or contents, and that the document was never in the People’s possession or control. Under these circumstances, the statement produced by the witness solely for his private employer was not Rosario material (see, People v Reedy, 70 NY2d 826, 827).

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

Order affirmed in a memorandum.


text:
    In the Matter of Anthony Ferraro.
    Decided December 15, 1988
   OPINION OF THE COURT

On consideration of continuation of this court’s March 25, 1988, suspension of Honorable Anthony Ferraro from the office of Justice of the Supreme Court of the State of New York, Ninth Judicial District, it is determined that the suspension is continued, without pay, effective immediately.

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


text:
    In the Matter of Jerome D. Cohen.
    Decided December 15, 1988
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Jerome D. Cohen is suspended, with pay, effective immediately, from the office of . Justice of the Supreme Court of the State of New York, Second Judicial District, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    The People of the State of New York, Respondent, v David Velazquez, Appellant.
    Argued November 15, 1988;
    decided December 15, 1988

      APPEARANCES OF COUNSEL

      Lynn A. Dummett and Pamela K. Phillips for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The undisturbed factual finding regarding propriety of the denial of defendant's suppression motion is supported by the record and therefore beyond further review. The Appellate Division having decided the suppression issue, we do not pass on the validity of defendant’s waiver. Defendant’s remaining arguments are without merit or unpreserved.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ignasio Reynoso, Also Known as Ignacio Reynoso, Appellant.
    Argued November 18, 1988;
    decided December 15, 1988

      APPEARANCES OF COUNSEL

      Richard Joselon and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Allen M. Hecht and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Charged with manslaughter in the first degree (Penal Law § 125.20 [1]), defendant maintains he was entitled to a charge of justification (Penal Law § 35.15). Although the record must be considered in the light most favorable to the accused (People v Padgett, 60 NY2d 142), a court need not charge justification if no reasonable view of the evidence establishes the elements of the defense (People v Watts, 57 NY2d 299; People v Scarborough, 49 NY2d 364, 373-374). Here, the trial court properly refused to charge the jury on the justification defense because "[e]ven if defendant had actually believed that he had been threatened with the imminent use of deadly physical force, and there is no evidence that he had so believed,” the jury could not rationally conclude that his reactions were those of a reasonable man acting in self-defense (People v Collice, 41 NY2d 906, 907; see also, People v Goetz, 68 NY2d 96).

In addition to his complaint about the charge, defendant contends that the trial court made several incorrect evidentiary rulings which require a reversal. We disagree. The evidence that defendant had been shot in the chest approximately 90 days prior to this incident was excluded, not, as defendant now claims, because he did not link it to his defense through his own testimony, but rather because there was no evidence at all to establish a nexus between the prior shooting and the shooting for which he was currently on trial. Without additional proof establishing how the prior gunshot affected defendant’s current state of mind, the mere fact of the earlier shooting was not relevant and therefore properly excluded (see, People v Miller, 39 NY2d 543).

Defendant also claims that error was committed when the trial court excluded a statement made to defendant’s sister, within two hours after the shooting, that defendant believed the victim had been armed. Although defendant argued that this evidence was offered solely to establish his state of mind, and thus was not hearsay (see, Richardson, Evidence §§203, 205 [Prince 10th ed]), the statement was irrelevant unless offered to prove the truth of the matter asserted — that defendant believed the victim was armed — and for that purpose it was inadmissible hearsay. While such declarations may be received to show the declarant’s state of mind at the time the statement was made, they are not admissible to establish the truth of past facts contained in them (Richardson, op. cit., § 288; see, Shepard v United States, 290 US 96). Here, the only relevancy of defendant’s statement would have been to support his justification defense and establish the past fact of defendant’s prior beliefs. The prosecutor correctly characterized the statement as inadmissible self-serving hearsay (Richardson, op. cit., §§ 357, 358).

Finally, defendant takes issue with trial court’s exclusion of evidence concerning the character of the crime scene neighborhood, and the presence of a controlled substance in the victim’s body. Since there is no indication in the record that defendant knew that the victim was acting under the influence of drugs, or that the neighborhood was dangerous, this evidence was properly excluded (see, People v Miller, supra).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Harvey Coker, Appellant.
    Argued October 13, 1988;
    decided December 15, 1988
   Appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Ellis, 71 NY2d 1012; People v Parker, 71 NY2d 887; People v Pacheco, 67 NY2d 631; People v Mintz, 20 NY2d 753, 770).


text:
    In the Matter of Guptill Holding Corporation, Appellant, v Henry G. Williams, as Commissioner of the Department of Environmental Conservation of the State of New York, et al., Respondents, and Frederick W. Burgess et al., Intervenors-Respondents.
    Submitted September 26, 1988;
    decided December 15, 1988
   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 for leave to appeal denied.


text:
    In the Matter of John J. Santucci, as District Attorney of Queens County, Appellant, v Gabriel S. Kohn, as a Justice of the Supreme Court, Queens County, et al., Respondents.
    Submitted August 1, 1988;
    decided December 15, 1988
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [a]).


text:
    Jerry Spiegel, Respondent, v Stephan P. Ferraro et al., Defendants, and Ernie’s Auto Body, Inc., Appellant.
    Submitted November 28, 1988;
    decided December 15, 1988
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Lisa Grant et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, and Carolyn Lee et al., on Behalf of Themselves and All Others Similarly Situated, Intervenors-Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued November 21, 1988;
    decided December 20, 1988

      APPEARANCES OF COUNSEL

      Raymond L. Falls, Jr., Robert N. Hayes, Vivien Shelanski, Irene Cannon-Geary, Diane Kiesel, Frederick B. Galt, Joy F. Willig and Richard G. Primoff for appellants.

      Robert Abrams, Attorney-General (Robert J. Schack and Charles Carson of counsel), for Mario M. Cuomo, as Governor of the State of New York, and another, respondents.

      Peter L. Zimroth, Corporation Counsel (Frederick P. Schaffer of counsel), for Edward I. Koch, as Mayor of the City of New York, and others, respondents.

      Archibald Murray, Lenore Gittis, Kalman Finkel, Helaine Barnett, Arthur Fried, Kay G. McNally, Jane M. Sufian, Shawn Leary and Steven Banks for Legal Aid Society of the City of New York, amicus curiae.

      Marcia Robinson Lowry, Christopher A. Hansen and Lucy Billings for American Civil Liberties Union Children’s Rights Project, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.

In this case arising under the Child Welfare Reform Act of 1979 (Social Services Law § 409 et seq.), a regulation of the Department of Social Services — 18 NYCRR 430.9 — states that when standards set forth in 18 NYCRR 430.9 (c), (d) or (e) are met, "[t]he provision of preventive services shall be considered mandated”. The issue before us is whether a nondiscretionary duty is thereby imposed upon respondent city, to provide preventive services whenever the standards set forth in 18 NYCRR 430.9 (c), (d) or (e) are met, so as to render relief in the nature of mandamus appropriate (see, Klostermann v Cuomo, 61 NY2d 525).

Required, or mandated, preventive services are authorized by Social Services Law § 409-a (1) (a); optional preventive services are authorized by Social Services Law § 409-a (2). Mandated preventive services furnished by a local social services district are reimbursed by the State at a 75% rate, while optional services are reimbursed at a 50% rate (Social Services Law § 409-b [1]). We agree with the conclusions of the late Justice Leonard H. Sandler (130 AD2d 154) that (1) the determination whether preventive services are mandated in a particular case is, at its essence, a discretionary determination, and (2) the regulation does not require in every case what the Legislature has prescribed must be discretionary in each case.

The statute provides that the determination whether preventive services are mandated is dependent in each case upon the finding by a social services official that "the child will be placed or continued in foster care unless such services are provided and that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family.” (Social Services Law § 409-a [1] [a].) A regulation, of course, cannot restrict a statute (see, Matter of McNulty v New York State Tax Commn., 70 NY2d 788, 791). Here, however, the regulation can and should be read rationally and harmoniously with the statute, as suggested by the agency responsible for its administration (see, Matter of Howard v Wyman, 28 NY2d 434). When the stated standards are met, a social services official may determine that preventive services are essential to prevent foster care placement, and may therefore be considered "mandated” services within 18 NYCRR 430.9 and Social Services Law § 409-a (1) (a) so as to entitle the social services district to the higher reimbursement rate under Social Services Law § 409-b.

Such a reading of the regulation preserves for social services officials the discretion in individual cases to conclude that services should not be provided — even though the standards set forth in the regulation are met — because of the case-by-case findings required by Social Services Law § 409-a (1) (a). This interpretation, moreover, comports with the legislative direction of Social Services Law § 409-a (4) that regulations "promulgated pursuant to and not inconsistent with this section” shall contain program standards relating to circumstances and conditions that are appropriate for the provision of particular services. The Legislature did not direct the Department of Social Services to fashion regulations that would themselves predetermine categories in which preventive services must, in every case, be provided. We further agree with Justice Sandler’s conclusion that, for the same reasons, the request for system-wide declaratory relief in this case is untenable (130 AD2d, at 168, supra).

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

Order affirmed, etc.


text:
    In the Matter of the Mary Chamberlain Trust, Appellant, v Robert M. Litke, as Commissioner of the New York City Department of General Services, Respondent.
    Argued November 15, 1988;
    decided December 20, 1988

      APPEARANCES OF COUNSEL

      James M. Murphy and L. Kevin Sheridan for appellant.

      Peter L. Zimroth, Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s property was condemned by the City of New York in 1971. At that time, the City planned to use the property for a new courthouse for the New York City Civil Court. The courthouse was never constructed. Instead, in 1982 and 1986, the City made efforts to lease the property to private tenants.

Petitioner commenced the present proceeding in 1986 to prohibit the City from taking further steps to lease the property or otherwise dispose of it without permitting it a right of first refusal. Claiming that the City’s original purpose in acquiring the property had been abandoned, petitioner invoked EDPL 406 (A) (as amended by L 1982, ch 356), which provides that if condemned property has not been "materially improved” and the condemning authority abandons "the project for which the property was acquired,” the condemning authority may not "dispose of the property or any portion thereof for private use within ten years of acquisition without first offering the former fee owner of record at the time of acquisition a right of first refusal to purchase the property” (emphasis supplied). Both courts below rejected petitioners’ claim, holding that even if all of the other statutory elements were present, an attempt by the City to lease condemned property is not a "disposition” sufficient to trigger the operation of the statute. We agree.

A primary rule of statutory construction is that words in legislative enactments are to be given their "natural and most obvious meaning” (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251). It is apparent that the term "dispose of,” as used in EDPL 406 (A), refers to a sale, assignment or other method of transferring title to the property to a private party. First, in ordinary parlance, the term "dispose of’ is most often used to convey permanent and complete transfer of a particular tangible or intangible property. Second, the purpose of EDPL 406 (A) is to give the former owner a right of first refusal "to purchase the property”, a remedy that would seem disproportionate if it were triggered even by an effort of the condemning authority to enter into a short-term lease. Finally, the conclusion that the term "dispose of’ in EDPL 406 (A) refers only to sales of the property is reinforced by the statements of the statute’s drafters that its purpose was to give former property owners a right of first refusal "before [the] property is offered for public sale” (1973 Report of State Commn on Eminent Domain and Real Property Tax Assessment Review, at 51 [emphasis supplied]).

For all of these reasons, we conclude that petitioner, which claims only that the City has attempted to lease the condemned property after abandoning its original project, has not stated a basis for relief under EDPL 406 (A). Accordingly, its petition was properly dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Richard McGrath, Appellant.
    Argued November 22, 1988;
    decided December 20, 1988

      APPEARANCES OF COUNSEL

      Peter Gerstenzang and Stuart I. Greenberg for appellant.

      Francis D. Phillips, II, District Attorney (Barbara J. Strauss of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Justice Arthur D. Spatt at the Appellate Division (135 AD2d 60).

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


text:
    The People of the State of New York, Respondent, v William Faust, Appellant.
    Decided December 20, 1988

      APPEARANCES OF COUNSEL

      Daniel J. Rothstein and Sidney H. Stein for appellant.

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Except where directly admissible against a defendant (see, Lee v Illinois, 476 US 530), the admission, at a joint trial, of a nontestifying codefendant’s confession implicating the defendant is a violation of the defendant’s constitutional right to confront the witnesses against him (People v Cruz, 66 NY2d 61, revd 481 US 186, on remand 70 NY2d 733). Manifestly, such a violation occurred in this prosecution.

However, the constitutional error is, under the circumstances presented, harmless. In this case, defendant’s admissible confession was detailed, consistent and included a diagram and photographs of the murder scene. His confession was corroborated by substantial objective evidence: testimony that defendant entered the cab shortly before it was found burned with the driver dead in the trunk, testimony placing defendant near the scene of the crime shortly after the crime occurred, splattered with blood and smelling of smoke, and defendant’s girlfriend’s testimony that defendant confessed to killing the cab driver and burning the cab. Although defendant claimed, on the stand, that he gave no statement to the police, his explanation of the events of the night in question was vague. He stated that he was so intoxicated he remembered little of the night but did remember getting into a fight and seeing a fire. Given the detail of defendant’s confession and the substantial corroborative evidence, the error in receiving the codefendant’s confession was harmless beyond a reasonable doubt (see, People v Hamlin, 71 NY2d 750, 759; People v Crimmins, 36 NY2d 230, 237). Defendant’s remaining contention is without merit.

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

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


text:
    Collins Tuttle and Company, Inc., Appellant, v Colgate Palmolive Company et al., Respondents.
    Argued November 16, 1988;
    decided December 20, 1988
    APPEARANCES OF COUNSEL

      Michael S. Gruen and Sally L. Schneider for appellant.

      Clarence S. Barasch for respondents.
   OPINION OF THE COURT

Memorandum.

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

This dispute, arising out of alleged conduct in 1974 and sued upon initially in June 1976, was resolved by dismissal of plaintiffs amended complaint after a bench trial in January 1985. Plaintiff asserted — and reiterates on the appeal before us — a core claim for damages equal to a brokerage commission it would have earned but for defendant’s alleged tortious interference with a business opportunity; plaintiff also sought declaratory judgment relief as to future contingent rights.

We perceive no basis or need to reach and address the issue primarily advanced by the parties — whether plaintiff was entitled as a matter of statutory construction to a jury trial despite having joined declaratory relief among its demands— because the trial court, as unanimously affirmed by the Appellate Division, correctly resolved the case on a narrower failure-of-sufficient-proof basis. That ground would have obviated jury resolution in any event, since plaintiff’s failure to satisfy its prima facie burden of proof ended the case as a matter of law, irrespective of any potential jury trial entitlement and irrespective of whether plaintiff waived or forfeited such jury trial claim by operation of law or by litigation strategy.

The original 1976 complaint sought damages equal to the commission Collins would have earned had it brokered Colgate’s rental of a warehouse facility. Pursuant to motion, the complaint as amended in 1980 additionally demanded a declaratory judgment that if Colgate were to exercise its renewal option in 1991, Collins would be entitled to future damages equal to the commission it would have earned upon renewal. Colgate’s motion for summary judgment was denied in June 1982, with the Appellate Division affirming and then denying leave to appeal to this court. Collins filed a note of issue demanding a jury trial in May 1984, and after being advised of the court’s intention to hold a bench trial, Collins formally moved for a jury trial. That motion was denied in October 1984 and no appeal was taken and no stay sought. After a lengthy bench trial, Colgate’s motion to dismiss the amended complaint was granted in May 1986. The Appellate Division affirmed, without opinion, in October 1987. Collins’ appeal as of right to this court, purportedly on a constitutional jury trial issue, was dismissed sua sponte in March 1988 and we thereafter granted Collins’ motion for leave to appeal.

The trial court’s decision on the merits, stripped of its extraneous discourse, focused on the essentials relative to the issues presented to us now and, fairly read, provides an independent threshold basis for disposition of the appeal: "the plaintiff has failed to prove the elements of its causes of action for interference with a business opportunity and for a breach of duty of good faith” (decision of Kirschenbaum, J., appendix, at 21). On this basis, there was nothing left to go to a jury— even assuming a statutory jury entitlement could emerge from the pleading and trial strategies charted by the plaintiff — and there is thus no basis to disturb the unanimously resolved rulings of the lower courts. We need reach no other issues.

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

Order affirmed, with costs, in a memorandum.


text:
    James I. Spandau, Respondent, v United States of America et al., Defendants, and State of New York Department of Taxation and Finance, Appellant.
    Argued November 17, 1988;
    decided December 20, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Nancy A. Spiegel, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      James I. Spandau, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs cross motion for summary judgment denied, and summary judgment granted to the New York State Department of Taxation and Finance.

To satisfy the State’s lien arising out of the seller’s unpaid sales tax liabilities, a purchaser in bulk of the seller’s business assets is required to pay the State, in addition to the cash consideration otherwise due the seller, an amount equal to the full tax indebtedness of the seller not to exceed the total purchase price consideration or fair market value of business assets sold, whichever is higher (Tax Law § 1141 [c]).

The State Tax Commission, in response to a notice of intention to purchase a business which pays sales tax, informed the purchasers "that a possible claim for such tax or taxes exists, [and] any sums of money, property or choses in action, or other consideration, which the purchaser * * * is required to transfer over to the seller * * * shall be subject to a first priority right and lien” by the State (Tax Law § 1141 [c] [emphasis supplied]). The State’s first priority on the whole consideration of the transaction includes imposition of personal liability on the purchaser for the payment of the unpaid sales taxes up "to an amount not in excess of the purchase price or fair market value of the business assets sold, transferred, or assigned” (id.). The statutory scheme thus "preserves [the State’s] indisputable right to collect taxes which could otherwise be extinguished by the simple expedient of a taxpayer transferring its assets” (Harcel Liqs. v Evsam Parking, 48 NY2d 503, 507).

The instant interpleader action is brought by an escrowee stakeholder, the purchasers’ attorney, whose clients were discharged and relieved by the lower courts of all sales tax liability on the basis of the directed distribution of only cash held in escrow. This was a mistaken discharge because the full sales tax indebtedness, amounting to less than the purchase price, which included other consideration in addition to the cash in the escrow account, was not yet satisfied. The purchasers had additionally assumed seller Surfside Pizzeria’s personal debt on a promissory note. This relief from obligation constitutes “other consideration” under the tax collection statute. The Tax Commission’s first priority lien over all statutorily designated kinds of consideration must be given effect under the statute lest the structuring of transactions and creative financing be facilely employed to frustrate the collection, after fair notice, of taxes due and owing. Moreover, purchasers have other adequate means in the negotiation of sales agreements to structure their agreeménts to avoid what could otherwise become for them onerous or duplicative payments. Thus, there is no reason to sacrifice the intent and plain reach of this statute to this transaction (see, e.g., Tax Law § 1141 [c]).

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

Order reversed, etc.


text:
    In the Matter of June Garcia, Appellant, v Board of Education of Newburgh Central School District et al., Respondents.
    Submitted October 24, 1988;
    decided December 20, 1988
   Motion for leave to appeal denied. Cross motion for leave to appeal dismissed upon the ground that cross movant is not aggrieved by the order sought to be appealed from (CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals § 91, at 395).


text:
    The People of the State of New York, Respondent, v Donna Williams, Michael P. Barrett, Martin Williams, Shelly J. McClure, Jeffrey J. Snyder and Robert A. Becher, Appellants.
    Submitted December 5, 1988;
    decided December 20, 1988
   Motion to dismiss appeal denied.


text:
    Rebecca Anderson et al., Appellants, v Klein’s Foods, Inc., Respondent.
    Argued November 15, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      James P. Renda and Thomas C. Pares for appellants.

      Beth L. Hoffman and Chris G. Trapp for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (139 AD2d 904).

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


text:
    Susan Cortesi et al., Respondents, v R & D Construction Corp. et al., Appellants.
    Argued November 18, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      Michael J. Hutter for appellants.

      Randall Pratt and James F. Taylor for respondents.
   OPINION OF THE COURT

Order modified, with costs to appellants, by denying plaintiffs’ motion for summary judgment for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division (137 AD2d 901, 903-905) and, as so modified, affirmed.

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


text:
    In the Matter of the County of Suffolk et al., Appellants, v State of New York et al., Respondents.
    Argued November 21, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      E. Thomas Boyle, County Attorney (Joyce D. Long of counsel), for appellants.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (138 AD2d 815).

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


text:
    William J. Kiernan et al., Respondents, v Gloria Thompson, Defendant, and City of Ithaca, Appellant.
    Argued November 18, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      John L. Perticone for appellant.

      Robert C. Mulvey and Richard I. Mulvey for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly denied the City’s motion for summary judgment and granted plaintiffs cross motion to amend the complaint to add the uncontested factual allegation that the City removed a tree stump in 1982, thereby creating the broken and defective condition of the sidewalk that resulted in plaintiffs injuries. It is well established that a municipality is under a continuing duty to maintain its public roadways in a reasonably safe condition (see, D’Ambrosio v City of New York, 55 NY2d 454, 462; Blake v City of Albany, 48 NY2d 875, 876), and that such duty is independent of its duty not to create a defective condition (see, Sniper v City of Syracuse, 139 AD2d 93, 96). Thus, the Appellate Division correctly determined that plaintiffs personal injury action is properly based upon the City’s negligent failure to maintain the sidewalk in repair. The action also was timely commenced because brought within 1 year and 90 days after the breach of that ongoing duty — the “happening of the event upon which the claim is based” (General Municipal Law §50-i [1] [c])— which breach resulted in plaintiffs accident. Moreover, since the City created the crack in the pavement, plaintiff was not required to provide it with prior written notice of the unsafe condition (Muszynski v City of Buffalo, 29 NY2d 810, affg on opn below 33 AD2d 648; Hogan v Grand Union Co., 126 AD2d 875, 876) and thus the City’s motion for summary judgment based upon plaintiff’s failure to comply with the prior notice provision in the Ithaca City Charter was properly denied.

The Appellate Division erred, however, insofar as it construed the amended complaint as stating a separate cause of action based solely on the City’s negligence in removing the tree stump rather than on its negligence in failing to properly maintain the sidewalk. If that were so, the negligent removal of the stump rather than the negligent failure to maintain the sidewalk that resulted in the accident would constitute "the happening of the event” for purposes of General Municipal Law § 50-i (1) (c). As removal of the tree stump occurred over two years prior to the accident, the statutory period for commencing an action against the City for that discrete act of negligence has long since expired (see, Klein v City of Yonkers, 53 NY2d 1011; Sniper v City of Syracuse, 139 AD2d, at 95, supra; Nebbia v County of Monroe, 92 AD2d 724, lv denied 59 NY2d 603). Accordingly, we do not construe the amended complaint as alleging a distinct cause of action grounded solely in the City’s negligent stump removal, but rather view the amendment as merely adding the factual allegation that the City created the defective condition, thus obviating the need to comply with the prior notice provision in the Ithaca City Charter.

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

Order affirmed, etc.


text:
    AT&T Information Systems, Inc., Respondent, v City of New York, Appellant, and Robert Abrams, as Attorney-General of the State of New York, Intervenor-Appellant.
    Argued November 21, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Judith R. Greenwald, Edith I. Spivack and Joseph I. Lauer of counsel), for defendant-appellant.

      Robert Abrams, Attorney-General (Harvey M. Berman and O. Peter Sherwood of counsel), intervenor-appellant pro se.

      Ira G. Greenberg, Martin J. Eisen, James P. Kratochvill and Richard A. Sinton of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Ernst H. Rosenberger at the Appellate Division (137 AD2d 7).

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


text:
    Gary Miller, Appellant, v David Fernan et al., Appellants, and William Rebmann et al., Respondents.
    Argued November 17, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      John P. Cox and Jane C. Hettrick for defendants-appellants.

      Neil E. Garvey for plaintiff-appellant.

      Linda L. Kaumeyer for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendants-respondents’ motion for summary judgment denied.

A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area (see, Fagan v Atlantic Coast Line R. R. Co., 220 NY 301, 306-307; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 109, 111, affd 72 NY2d 888). On a review of the record, questions of fact exist as to whether respondents breached this duty, whether the breach was a proximate cause of plaintiff’s injuries, and whether plaintiff was comparatively negligent (see, Keener v Tilton, 283 NY 454, 455-456). Contrary to respondents’ contention, plaintiff’s conduct was not an intervening and superseding cause as a matter of law, since there is a factual dispute over whether there was any safe alternative route which plaintiff could have taken (cf., Blye v Manhattan & Bronx Surface Tr. Operating Auth., 72 NY2d 888, supra; Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 541, lv denied 68 NY2d 602).

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

Order reversed, etc.


text:
    In the Matter of Joseph Petrella, Respondent, v Rita Siegel, as President of Community School Board District 28, et al., Appellants.
    Argued November 21, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Linda H. Young and Edward F. X. Hart of counsel), for appellants.

      Joel Field for respondent.

      Dennis G. O’Hara and Robin E. Miller for New York State Council of School Superintendents, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Under the New York City school decentralization plan, a community superintendent is the "superintendent of schools” of a community school district of the parent City of New York school system (see, Education Law § 2590-a [6]). In addition to the express obligation to comply with all applicable provisions of law, community school superintendents have the same powers and duties with respect to the schools under their community board’s jurisdiction as did the superintendent of schools of a city district of the City of New York at the time the school system was decentralized pursuant to article 52-A (Education Law § 2590-f [1] [a]; [2]; see, Education Law § 2566). Consequently, certain provisions of article 52 controlling at the time the decentralization article was enacted (Education Law § 2550), by express legislative carryover, remain applicable to community superintendents (Education Law § 2590-f [1]). Thus, Education Law § 2565 (2) prescribes that the particular method for a superintendent of schools to exercise his or her voluntary choice to vacate that position is "by filing a written resignation with the board of education” (emphasis supplied; compare, Education Law § 2507 [2]; § 3019-a). Having prescribed the resignation method, the Legislature has ordained the required procedure, for otherwise the statute would serve no purpose and we may not ascribe to the Legislature a vain act.

For this reason and for the purpose at issue, the general exclusion of City of New York community superintendents from the category "superintendent of schools” in General Construction Law § 47-a has no application here. The legislative history to the enactment of General Construction Law § 47-a shows that its purpose was to establish "a single title for all chief school officers other than in the City of New York as ’superintendent of schools’ ” because ”[c]ity school districts * * * are already administered by superintendents of schools” (L 1978, ch 358; June 13, 1978 letter from Senator Donovan, bill sponsor, to Judah Bribetz, counsel to Governor; June 14, 1978 mem from Robert D. Stone, counsel of the State Education Dept, to counsel to Governor; see, Education Law § 2590-a [6]; § 2590-f [1] [a]; § 2566). "Superintendent of schools”, as used in the definition of "community superintendent” of a New York City school (Education Law § 2590-a [6]), takes its meaning independently and is governed by the specific interplay of the provisions of Education Law articles 52 and 52-A, each expressly applicable to the City of New York and its school administration (Education Law §§ 2550, 2590).

Inasmuch as it is undisputed that community superintendent Petrella did not file a written resignation with the board pursuant to Education Law §2565 (2), the resolutions of the community school board purportedly accepting his oral resignation and terminating his employment were inoperative and were properly annulled by both lower courts.

Having decided this case on the narrowest applicable ground, we need reach no other issues.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Lawrence D. Jordan, Respondent.
    Decided December 22, 1988
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the Appellate Division 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 [2] [a]).


text:
    Margaret B. Butler et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Caldwell & Cook, Respondent. Lyne E. Cicon et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Caldwell & Cook, Respondent.
    Decided December 22, 1988
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Winston Fisher, Appellant, v Victor F. Condello, as Chairman of the Retirement Board of the Teachers’ Retirement System of the City of New York, et al., Respondents.
    Submitted October 24, 1988;
    decided December 22, 1988
   Motion, insofar as it seeks leave to appeal from an order of the Appellate Division denying petitioner’s motion to reinstate his appeal, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Fleet Factors Corp., Doing Business as Ambassador Factors, Appellant, v Henry Werblin et al., Respondents.
    Decided December 22, 1988
   Appeal from so much of the Appellate Division order as affirmed the denial of plaintiffs motion for leave to replead dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Barbara Johnson, Appellant, v Valerie White, Respondent.
    Submitted November 7, 1988;
    decided December 22, 1988
   Motion for reconsideration of September 22, 1988 dismissal or for leave to appeal, etc., denied. [See, 72 NY2d 951.]


text:
    M. Michele Rechberger, Respondent, v Edward H. Rechberger, III, Appellant. (And Another Action.)
    Submitted November 21, 1988;
    decided December 22, 1988
   Motion for extension of the time within which to move for reargument denied. Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 72 NY2d 942.]


text:
    Leonard C. Spano, as Administrator of the Estate of Mark A. Spano, Deceased, Appellant, v Dennis O’Hara, Respondent.
    Decided December 22, 1988
   Appeal from the Appellate Division order entered September 22, 1988 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not finally determine the action within the meaning of the Constitution.

Appeal from the Appellate Division order entered October 16, 1987 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.