author: Kaye, J.

text:
    Esther Seidel et al., Respondents, v 18 East 17th Street Owners, Inc., et al., Appellants, et al., Defendants.
    Argued and submitted June 2, 1992;
    decided July 2, 1992

      POINTS OF COUNSEL

      Jacob B. Ward for Southside Development Company, appellant.
    I. Public policy prohibits a cause of action for usurious interest. (Szerdahelyi v Harris, 67 NY2d 42; Sabine v Paine, 223 NY 401; Claflin v Boorum, 122 NY 385; Angelo v Brenner, 90 AD2d 131; Payne v Burnham, 62 NY 69; Miller v Zeimer, 111 NY 441; Hammelburger v Foursome Inn Corp., 54 NY2d 580; Matter of Carr, 99 AD2d 390; Hungerford Brass & Copper Co. v Brigham, 47 Misc 240.) II. The complaint to foreclose the mortgage should have been dismissed because repayment of the principal extinguished the mortgage. (Mead v York, 6 NY 449; Browne v Vredenburgh, 43 NY 195; Diehl v Becker, 227 NY 318; President & Directors of Manhattan Co. v Rudner, 280 App Div 982; Ganz v Lancaster, 169 NY 357; Matter of Consalus, 95 NY 340; Real Estate Trust Co. v Keech, 69 NY 248; Sullivan v Rosson, 223 NY 217; Becker v McCrea, 193 NY 423, 194 NY 537.) III. Plaintiifs-respondents’ pleadings and papers opposing the motion to dismiss the complaint do not disclose a valid cause of action. (National Bank v Lewis, 75 NY 516, 81 NY 15; Purdy v Coar, 109 NY 448; Matter of Oakes, 248 NY 280; Bennett v Bates, 94 NY 354; 219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Webster v Roe, 212 App Div 756, 241 NY 570; Riordan, Kauder & Co. v Coughlin, 226 App Div 97, 254 NY 537; Matter of Steinbeck v Gerosa, 4 NY2d 302.)

      Marvin S. Lerman for 18 East 17th Street Owners, Inc., appellant.

      Matthew Dollinger, Floyd G. Grossman and Michael J. Spithogiannis for respondents.
    I. The estoppel in pais doctrine precludes 18 East from raising the defense of usury. (Merchants Exch. Natl. Bank v Commercial Warehouse Co., 49 NY 635; Payne v Burnham, 62 NY 69; Verity v Sternberger, 62 App Div 112; Hungerford Brass & Copper Co. v Brigham, 47 Misc 240; Angelo v Brenner, 98 AD2d 131.) II. The personal defense of usury is not available to 18 East and was nonetheless waived and the obligation ratified. (Halsey v Winant, 258 NY 512; Williams v Tilt, 36 NY 319; Hartley v Harrison, 24 NY 170; Sands v Church, 6 NY 347; Geddes Sav. & Loan Assn. v Mishel, 89 AD2d 792; Gross v Lichtman, 55 AD2d 670; Kahn v Sohmer, 12 AD2d 982, 13 AD2d 659; Broad & Wall Corp. v O’Connor, 13 AD2d 462; Del Rubio v Duchesne, 284 App Div 89.) III. There remains an outstanding principal balance due of $75,000. (W.W.W. Assocs. v Giancontieri, 77 NY2d 157; Browne v Vredenburgh, 43 NY 195; Diehl v Becker, 227 NY 318; Ganz v Lancaster, 169 NY 357; Matter of Consalus, 95 NY 340; Real Estate Trust Co. v Keech, 69 NY 248; Band Realty Co. v North Brewster, Inc., 37 NY2d 460.) IV. The transaction can be interpreted as a joint venture. (Matter of Steinbeck v Gerosa, 4 NY2d 302.) V. The covenant of good faith precludes avoidance of the transaction and enforcement in accordance with its terms. (Austin v Trybus, 136 AD2d 940; McKenna v Case, 123 AD2d 517; Norgate Homes v Central State Bank, 82 AD2d 849; Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62; R. W. Kern, Inc. v Circle Indus. Corp., 158 AD2d 363.) VI. An estoppel certificate may exist. (Hammelburger v Foursome Inn. Corp., 54 NY2d 580.)
   OPINION OF THE COURT

Kaye, J.

In this mortgage foreclosure action, plaintiff-lenders seek to preclude a defense of usury, on the ground that the defense was waived by defendant-borrowers, that they are estopped from raising the defense, or that it is otherwise unavailable to them. We reject the lenders’ arguments, and dismiss their action to enforce a concededly usurious loan.

I.

In October 1982, Southside Development Co., a partnership, borrowed $150,000 from Eta Herbst (plaintiffs’ decedent), to help finance its purchase of an eight-story loft building in Manhattan, which it planned to convert to cooperative ownership. In exchange for the loan, Southside executed in Herbst’s favor a $225,000 bond bearing 8% interest, secured by a second mortgage on the building. The bond was to mature in 37 months, with quarterly interest-only payments due in the interim. Under the parties’ written agreement, $150,000 was to be prepaid to Herbst when title passed to the cooperative corporation. In addition, Herbst was given an option to exchange the remaining $75,000 due on the bond for the shares and proprietary lease to a floor of the building. The same arrangement was made with Ellen Raacke, who is not a party to this litigation.

In late 1985, Southside conveyed the building to the cooperative, 18 East 17th Street Owners, Inc. (Owners). In mid-August 1986, Owners made a principal payment of $75,000 and, by separate check, a payment of interest then due. A few days later, Herbst, having previously exercised her option for a floor of the building, resold her shares in the cooperative to a third party for $237,000. Herbst died on August 31,1986.

Plaintiffs — the executors of Herbst’s estate — commenced this action to foreclose on the mortgage after their demands for the $75,000 due on the bond, and accrued interest, went unheeded. Owners moved to dismiss the complaint and cancel the bond and mortgage, asserting that the transaction was usurious. In response, plaintiffs contended that Owners could not assert the usury defense because (i) Owners was a stranger to the original transaction and could not, as a grantee taking subject to an existing mortgage, claim usury in that mortgage; (ii) Southside, by conveying the building subject to a mortgage, waived the defense, which could not thereafter be raised by anyone; and (iii) the doctrine of estoppel in pais applied, based on the conduct of a Southside partner and Owners principal (Maurice Reichman), who allegedly was also Herbst’s attorney.

Supreme Court computed the actual interest rate of the loan to be 28.6%, and the lenders do not dispute that figure, or that the loan is usurious. However, Supreme Court found triable issues of fact as to whether Owners could assert the usury defense. Although the deed conveying the property from Southside to Owners did not explicitly mention the mortgage, the court observed that the cooperative offering plan documents acknowledged the mortgage, and thus there was a factual issue as to whether the conveyance was "subject to” the mortgage. In the court’s view, this same factual issue had to be resolved before a determination could be made as to Southside’s waiver of usury. Finally, on the estoppel claim, the court found issues of fact regarding Reichman’s conduct and Herbst’s reliance.

On defendants’ appeal, the Appellate Division — over a two-Justice dissent — affirmed for the reasons stated by Supreme Court, and identified two additional issues for trial. The Appellate Division opined that the transaction could be viewed as a joint venture, thus unregulated by usury laws, and that defendants’ more favorable treatment of Raacke raised issues of good faith and fair dealing implicit in all contracts. The Appellate Division certified to this Court the question whether its order was correct, which we answer in the negative.

II.

Statutes prohibiting usurious loans were enacted in 15th century England, became part of New York’s colonial history, and have remained since (see, 1960 Report of NY Law Rev Commn, 1960 Legis Doc No. 65, at 75-80; Curtiss v Teller, 157 App Div 804, affd 217 NY 649). Their purpose is "to protect desperately poor people from the consequences of their own desperation.” (Schneider v Phelps, 41 NY2d 238, 243.)

In its present form, the usury statute provides: "No person or corporation shall, directly or indirectly, charge, take or receive any money * * * on the loan or forbearance of any money * * * at a rate exceeding” 16% per annum (General Obligations Law § 5-501 [2]; Banking Law § 14-a [1]). When "any bond, bill, note, assurance, pledge, conveyance, contract, security or any evidence of debt, has been taken or received in violation” of the usury laws, "the court shall declare the same to be void, and enjoin any prosecution thereon, and order the same to be surrendered and cancelled.” (General Obligations Law § 5-511 [2].)

The consequences to the lender of a usurious transaction can be harsh: the borrower is relieved of all further payment —not only interest but also outstanding principal, and any mortgages securing payment are cancelled. In effect, the borrower can simply keep the borrowed funds and walk away from the agreement. Moreover, the borrower can recover any interest payments made in excess of the legal rate (General Obligations Law § 5-513). New York usury laws historically have been severe in comparison to the majority of States (1960 Report of NY Law Rev Commn, 1960 Legis Doc No. 65, at 77), reflecting the view of our Legislature that the prescribed consequences are necessary to deter the evils of usury.

Statutory and judicial exceptions may in some circumstances mitigate the harshness. Corporations — generally the antithesis of the "desperately poor people” referred to in Schneider v Phelps (supra) — are ordinarily barred from asserting a usury defense (General Obligations Law § 5-521 [l]). Banks forfeit interest but not principal (General Obligations Law § 5-511 [1]). Moreover, the defense may be waived; it may be unavailable to certain persons not party to the original transaction; and a borrower may be estopped from asserting it. This appeal concerns the last three exceptions to a defense of usury.

Standing and Waiver of Usury

This Court has stated that "the mortgagor may * * * waive the usury and elect to affirm the mortgage by selling and conveying his property subject to the lien and payment of such mortgage, and the purchaser, in that case, takes the equity of redemption merely and cannot question the validity of the mortgage on [the] ground of usury.” (Hartley v Harrison, 24 NY 170, 172.) Moreover, the ability to cancel a usurious transaction and keep the borrowed money is a "peculiar privilege upon the actual borrower,” stemming in part from the notion that the borrower is a victim of the lender (Buckingham v Corning, 91 NY 525, 530; see also, Halsey v Winant, 258 NY 512, 530). Thus, under certain circumstances, a stranger to the loan has no standing to claim that it was usurious (see, Halsey v Winant, 258 NY 512, supra; Buckingham v Corning, 91 NY 525, supra; Williams v Tilt, 36 NY 319; Sands v Church, 6 NY 347).

Whatever application these exceptions might have when an independent third party obtains property subject to a mortgage in an arm’s length transaction, we conclude that they are inapplicable in this case. The conveyance of the encumbered property from Southside to Owners was contemplated in the agreement between Herbst and Southside, and indeed was the very purpose of the loan. Moreover, Southside’s partners were the officers and principals of Owners. Significantly, Owners’ acquisition of the building was merely a function of the building’s conversion to cooperative ownership, not a result of a sale to an independent third party.

Thus, even if the property was transferred "subject to” the mortgage, on these facts no inference of waiver can be drawn from Southside’s conveyance to Owners, nor can it be said that Owners is a true stranger to this transaction. To the contrary, under these circumstances, Owners can be deemed the borrower for purposes of the usury laws (compare, Schneider v Phelps, 41 NY2d 238, supra [individual may be considered borrower when loan made to "dummy” corporation]). Accordingly, in this case it is unnecessary to resolve the issue whether the conveyance was subject to the mortgage because even if it was, Owners would not be precluded from asserting a usury defense.

Estoppel in Pais

We next consider plaintiffs estoppel in pais claim. In Payne v Burnham (62 NY 69), a usury case, the Court noted that as a general rule, " 'a party will be concluded from denying his own acts or admissions which were expressly designed to influence the contract of another, and did so influence it, and when such denial will operate to the injury of the latter.’ ” (Id., at 73.)

In usury cases, we have applied the doctrine where the mortgagor executes an estoppel certificate (a statement that there are no setoffs or defenses to the mortgage [see, e.g., Real Property Law § 258, Schedule M, [J 7]) and a third party, relying on the representations, obtains the mortgage (see, Hammelburger v Foursome Inn Corp., 54 NY2d 580; Miller v Zeimer, 111 NY 441; Weyh v Boylan, 85 NY 394; Payne v Burnham, 62 NY 69, supra). The law recognizes that it would be inequitable for the mortgagor to later claim that there is in fact a usury defense and thereby "obtain an unconscientious advantage at the expense of an innocent person” (Weyh v Boylan, 85 NY, at 398, supra).

Although the mortgagor is estopped from claiming usury, the illegal transaction is not entirely purged of its taint. Balancing the competing interests of law and equity, "the innocent assignee is permitted to recover only the amount advanced with interest, rather than to enforce the mortgage for its face amount” (Hammelburger v Foursome Inn Corp., 54 NY2d, at 588, supra; see also, Claflin v Boorum, 122 NY 385, 389; Payne v Burnham, 62 NY, at 74, supra).

In this case, plaintiffs urge a different theory of estoppel in pais, based not on an estoppel certificate but on the borrower’s conduct. Plaintiffs allege that Reichman, a principal of South-side and Owners, was also Herbst’s attorney; that Reichman suggested the interest rate and drafted the documents; and that Herbst relied on his representations that the transaction was legal.

The Appellate Divisions, and the majority of States to consider the issue, have recognized that a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction (see, Abramovitz v Kew Realties Equities, 180 AD2d 568, lv denied 80 NY2d 753 [decided today]; Schaaf v Borsher, 82 AD2d 880 [2d Dept]; Angelo v Brenner, 90 AD2d 131 [3d Dept]; Hammond v Marrano, 88 AD2d 758 [4th Dept]; Annotation, Usury — Borrower’s Initiation, 16 ALR3d 510, 513-516). We endorse such a rule. Otherwise, a borrower could void the transaction, keep the principal, and "achieve a total windfall, at the expense of an innocent person, through his own subterfuge and inequitable deception” (Angelo v Brenner, 90 AD2d 131, 133, supra).

Even assuming plaintiffs’ factual allegations are true, however, their claim must fail. "An indispensable requisite of an estoppel in pais, is that the conduct or representation was intended to, and did, in fact, influence the other party to [her] injury.” (Payne v Burnham, 62 NY, at 73, supra; emphasis added.) Herbst suffered no cognizable injury that should be remedied by equity. To the contrary, for her initial outlay of $150,000, she realized at least $312,000 (defendants claim significantly more) within four years. Any reliance on Reich-man was to her benefit, not detriment.

Indeed, given this concededly usurious loan, Herbst’s estate would be entitled, at most, to recovery of the amount advanced, with legal interest (see, Hammelburger v Foursome Inn Corp., 54 NY2d, at 588, supra; Claflin v Boorum, 122 NY, at 389, supra; Payne v Burnham, 62 NY, at 74, supra). There is no dispute, however, that the estate already received more than those amounts (even excluding Herbst’s profit on the option) and that this action is for usurious interest — the difference between the amount loaned and the face amount of the bond. Equity is not available to effectuate such recovery.

III.

Finally, we consider whether the transaction may be construed as a joint venture, and whether implied covenants of good faith and fair dealing are relevant in this case. These issues were first raised by the Appellate Division itself and are not strenuously pressed by plaintiffs on this appeal.

Usury laws apply only to loans or forbearances, not investments (General Obligations Law § 5-501 [1], [2]). If the transaction is not a loan, "there can be no usury, however unconscionable the contract may be.” (Orvis v Curtiss, 157 NY 657, 661.) We disagree with the Appellate Division’s suggestion that Herbst could be considered a joint venturer of Southside or Owners.

The parties’ agreement refers to Herbst as a "Lender” and a "loan” of $150,000. Southside executed a bond and a mortgage, traditional loan instruments. The mere presence of a unilateral option in favor of Herbst — in lieu of $75,000 of the bond face amount — did not transform the lender into a joint venturer. "|T]f the court can see that the real transaction was the loan or forbearance of money at usurious interest, its plain and imperative duty is to so declare, and to hold the security void.” (Meaker v Fiero, 145 NY 165, 170.) This arrangement, in form and substance, plainly was a loan.

We also disagree with the Appellate Division’s suggestion that defendants could be required to comply with an illegal agreement based on principles of good faith and fair dealing. Apparently, defendants paid Raacke in accordance with the terms of her usurious loan agreement. That defendants chose not to assert a usury defense against Raacke, however, does not preclude them from raising the defense against plaintiffs. Indeed, to follow out plaintiffs’ argument, implied covenants of good faith and fair dealing would require every borrower to comply with an agreement to pay usurious interest. The usury laws take precedence over any such implied covenants.

Plaintiffs’ remaining arguments are similarly without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendants’ motions to dismiss the complaint granted, defendant Owners’ motion granted to have the bond and mortgage surrendered and the lis pendens cancelled, and the certified question answered in the negative.

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

Order reversed, etc.

      . There was one written agreement between Raacke and Herbst, as individual lenders, and Southside, as borrower. Raacke and Herbst, however, received separate bonds and mortgages. The documents provided that the two second mortgages would have equal priority.

      . Although Owners is a corporation, Supreme Court held that a corporation succeeding to the rights of a party that could have asserted a usury defense likewise may assert the defense, citing Merchants Exch. Natl. Bank v Commercial Warehouse Co. (49 NY 635), and thus Owners’ corporate status was not in itself a bar to the defense. On this appeal, plaintiffs do not contest that holding, and we therefore do not pass on the issue. We note that in any event a corporation may raise the defense when the interest rate is criminally usurious (General Obligations Law § 5-521 [3]), i.e., greater than 25% per annum (Penal Law § 190.40), and that the rate in this case was found to be 28.6%.

      . Defendants contend, as a factual matter, that there is no issue of unequal treatment because both lenders received the identical amount— $312,000, plus interest — although by different means. In that we hold, as a matter of law, that implied covenants are not material in the usury context, we need not consider defendants’ argument.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Edwin Vientos, Appellant.
    Argued November 15, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      Robert P. App and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Mary C. Farrington and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It cannot be said as a matter of law that the People’s evidence of value was insufficient. The People’s expert testified that he was familiar with the retail market for Commodore computers, that the company did not sell the computers used, or authorize its dealers to do so, and that he knew of no market for used Commodore computers. The People were not required to show whether the equipment had an established value in the black market, since that standard is only applicable when the stolen items are contraband, such as drugs, which may not be sold legally (People v Irrizari, 5 NY2d 142, 145-146). The expert’s concession that an individual owner was free to sell used equipment to another person does not indicate the existence of a market for the used equipment, which contemplates that the sales occur with some regularity and uniformity (People v Irrizari, supra, at 146).

The statute provides that replacement cost may be used if market value "cannot be satisfactorily ascertained” (Penal Law § 155.20 [1]), and the testimony of the People’s expert, if credited, permitted the People to use this alternative method of valuation. It was, therefore, proper for the court to charge the jury to this effect.

The defendant’s alternative argument that the People’s proof of replacement cost was insufficient because it did not take into account depreciation in the hands of the owner (People v Harold, 22 NY2d 443), was not raised at trial and thus was not preserved for review.

The other argument raised by the defendant is without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Babylon Union Free School District, Respondent, v Babylon Teachers Association, Appellant.
    Argued November 19, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      Richard A. Shane, James R. Sandner and Mitchell H. Rubinstein for appellant.

      Jacob S. Feldman, Vanessa M. Sheehan and Kevin A. Seaman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant has sought arbitration of a claim that the school district breached the collective bargaining agreement by summarily altering the composition of a teacher’s class, in part at the behest of the students’ parents. One of its contentions is that this action violated article IV, § 2 of the agreement which provides: "In the event of a parental complaint regarding one or more teachers, the building principal shall arrange an appointment between the teacher or teachers and the parent, to provide the opportunity for constructive discussion of the problem.” The school district brought this proceeding for a stay of arbitration, contending that the cited provision has no application to this dispute. The school district further contended that the composition of a classroom is a nondelegable duty of school officials, and, consequently, it would be against public policy to submit such a dispute to arbitration.

The courts below erred in granting the requested relief. The collective bargaining agreement provides for arbitration of any dispute concerning the proper interpretation of the agreement. Thus, on its face, this dispute over the applicability of article TV, § 2 is arbitrable (see, e.g., Matter of Board of Educ. v Watertown Educ. Assn., 74 NY2d 912, 913). Furthermore, at this point in the dispute, there is no basis for objecting to arbitration on public policy grounds. Even if, as the district urges, public policy precludes a remedy that would override the district’s discretion to determine class composition (see generally, Education Law § 1709 [3]), a stay of arbitration would be premature and unwarranted "where it is possible that the arbitrator may use his [or her] broad powers to fashion a remedy ’adequately narrowed to encompass only procedural guarantees’ ” (Matter of Enlarged City School Dist. [Troy Teachers Assn.], 69 NY2d 905, 906, quoting Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 NY2d 411, 418). This conclusion is particularly apt here, where the rights established by the contractual provision in issue are principally procedural.

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

Order reversed, etc.


text:
    In the Matter of William M. Kunstler, Appellant, v Thomas B. Galligan, as Justice of the Supreme Court of the State of New York, Respondent.
    Decided December 18, 1991

      APPEARANCES OF COUNSEL

      Morton Stavis, Mahlon F. Perkins, Jr., Arthur Kinoy and Ronald L. Kuby for appellant.

      Robert Abrams, Attorney-General (Lisa M. Evans of counsel), for respondent.

      Joshua L. Dratel for New York State Association of Criminal Defense Lawyers, amicus curiae.

      Eric A. Seiff and Richard A. Greenberg for New York Criminal Bar Association, amicus curiae.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the Per Curiam opinion at the Appellate Division (168 AD2d 146).

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


text:
    Derek Burgess, Appellant, v Long Island Railroad Authority, Respondent.
    Decided December 18, 1991

      APPEARANCES OF COUNSEL

      Tobi R. Salottolo and A. Stanley Proner for appellant.

      Mark Yagerman and Steve S. Efron for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured on the tracks of the Long Island Railroad (LIRR) after discharge from a LIRR train. He did not serve a summons and complaint on the public authority until more than one year and 30 days after his claim accrued. Therefore, his claim was untimely and correctly dismissed.

A person has one year from the date a claim accrues to commence an action against a public authority such as LIRR (Public Authorities Law § 1276 [2]). The complaint must contain an allegation that at least 30 days have elapsed since the authority was presented with a demand or claim and that the authority has neglected or refused to adjust or pay the claim (Public Authorities Law § 1276 [1]). This "stay” of 30 days is not counted as part of the limitations period and the plaintiff therefore may serve a complaint at any time up to one year and 30 days after the claim has accrued (CPLR 204 [a]; see, Andersen v Long Is. R. R., 59 NY2d 657, 661; Barchet v New York City Tr. Auth., 20 NY2d 1, 5).

Plaintiff claims that because he was injured on a Friday night and could not present his claim to LIRR’s Claims Bureau until the next Monday, three days later, he was actually "stayed” for 33 days and was entitled to one year and 33 days to commence his action.

We find no merit to plaintiffs argument. The statute contemplates and requires only a 30-day waiting period. Therefore, 30 days is the maximum extension of time plaintiff is entitled to under CPLR 204 (a). Moreover, the interests of uniformity strongly urge us to avoid a rule whereby the time in which to commence an action against a public authority would vary case to case, depending on the authority’s office hours and scheduled vacations.

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, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Asa Smith, Appellant.
    Argued November 15, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      Ira Mickenberg for appellant.

      Robert M. Morgenthau, District Attorney (Hilary Hassler and James M. McGuire of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (166 AD2d 385).

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


text:
    In the Matter of Claudia I. Henschke, Appellant, v State Division of Housing and Community Renewal, Respondent, and Edie Cowan, Intervenor-Respondent.
    Decided December 18, 1991

      APPEARANCES OF COUNSEL

      Joseph J. Saltarelli for appellant.

      Iris J. Korman and Dennis B. Hasher for respondent.

      M. Bruce Solomon for intervenor-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (174 AD2d 535).

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


text:
    In the Matter of Anonymous, Appellant. Committee on Character and Fitness, Respondent.
    Argued November 19, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      Jerome Karp for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division is the fact finder on issues of character and fitness and its discretion is inclusive; our review "is limited to ensuring that the proceedings have been conducted in accordance with statutory and regulatory requirements, that no right of the petitioner has been violated, and that there is evidence to sustain the decision of the Appellate Division” (Matter of Anonymous, 74 NY2d 938, 940).

While one might disagree with the determination made by that court in this case, "[w]e may not substitute our judgment on the merits for that of the Appellate Division” (id., at 940).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of David T. Haggerty et al., Appellants, v Planning Board of the Town of Sand Lake et al., Respondents.
    Argued November 13, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      David R. Dudley and Janet S. Kaplan for appellants.

      George F. Carpinello for Planning Board of the Town of Sand Lake, respondent.

      William H Helferich III for Albany Telephone Company, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (166 AD2d 791).

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 Norman Cloud, Appellant.
    Decided December 18, 1991
    APPEARANCES OF COUNSEL

      James J. O’Rourke for appellant.

      Robert M. Morgenthau, District Attorney (Leonard I. Picker and Robert M. Raciti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether exigent circumstances existed to justify the warrantless entry and arrest of defendant involves a mixed question of fact and law. Where, as here, there is support in the record for such an undisturbed finding, it is beyond the scope of further review by this Court (People v Burr, 70 NY2d 354, 360-361). Evidence in the record of this CPL article 440 proceeding supports the determination of the courts below that exigent circumstances justified the warrantless entry. On the morning of October 6, 1976, the police received direct and reliable information that defendant had admitted recently stealing a .38 caliber revolver and killing a delicatessen clerk within the course of a robbery, and that defendant, the weapon and potential innocent hostages were in a particular hotel room in Manhattan.

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:
    Richard Green, Individually and as Parent and Natural Guardian of Amy Green, an Infant, Appellant, v Allstate Insurance Company, Respondent, et al., Defendants.
    Submitted June 17, 1991;
    decided December 18, 1991
   Motion for leave to appeal dismissed upon the ground that the order of the Appellate Division sought to be appealed from has been superseded by a subsequent order of the Appellate Division which is in favor of movant (see, CPLR 5511).


author: Titone, J.

text:
    The People of the State of New York, Appellant, v Dhoruba Bin Wahad, Formerly Known as Richard Moore, Respondent.
    Argued October 9, 1991;
    decided December 19, 1991

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Patrick J. Hynes, James M. Kindler, Mark Dwyer and Eleanor J. Ostrow of counsel), for appellant.

      Robert Bloom, Robert J. Boyle and Elizabeth M. Fink for respondent.

      Ira Mickenberg for Office of the Appellate Defender, amicus curiae.

      Joan P. Gibbs for Center for Constitutional Rights and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this memorandum.

Almost 19 years ago, the defendant Dhoruba Bin Wahad was convicted of two counts of attempted murder (Penal Law § 110.00, former § 125.25) and one count of felonious possession of a weapon (Penal Law former § 265.05) in connection with a 1971 machine gun shooting of two police officers. Defendant’s conviction was affirmed by the Appellate Division (51 AD2d 891) and by this Court (42 NY2d 421). In 1988, he filed a motion to vacate a judgment of conviction under CPL 440.10. In his motion papers, defendant claimed that the prosecution had failed to turn over Rosario material to which he was entitled (People v Rosario, 9 NY2d 286, cert denied 368 US 866).

For the reasons stated in our opinion in People v Jackson (78 NY2d 638 [decided today]), we conclude that in order to vacate his conviction based on his Rosario claim the defendant must demonstrate that there was a reasonable possibility that this failure to turn over Rosario material contributed to the guilty verdict against him. The defendant is entitled to a CPL 440.10 hearing to permit him to make this showing. Additionally, defendant should be permitted to address those other claims that were not reached below as a result of the disposition of his Rosario claim.

Titone, J.

(dissenting). For the reasons stated in my dissenting opinion in People v Jackson (78 NY2d 638 [decided herewith]), I would conclude that defendant’s postconviction motion to vacate was properly granted on the ground that the prosecution had failed to turn over certain items constituting Rosario material. In my view, no further showing need be made, since the per se rule of reversal that has long been applied in direct appeals (see, e.g., People v Jones, 70 NY2d 547) should also be applied in this CPL 440.10 proceeding. Accordingly, the order below should be affirmed.

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

Order reversed, etc.


text:
    Len Frank, Appellant, v Park Summit Realty Corp., Respondent.
    Decided December 19, 1991

      APPEARANCES OF COUNSEL

      George R. Osborne for appellant.

      M. William Scherer for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to defendant landlord, by deleting so much thereof as affirmed "the disposition by the trial court of plaintiff’s meritless claim for rent abatement, and the award to landlord of all rent arrears without reduction” and reinstating that portion of the order of Supreme Court as awarded plaintiff tenant a partial rent abatement and, as so modified, affirmed. The Appellate Division’s statement "affirming” an award to landlord of all rent arrears without reduction misstated Supreme Court’s order entered December 21, 1989 and, effectively, granted landlord affirmative relief that was neither sought on appeal nor before that court. The order of the Appellate Division is otherwise affirmed for the reasons stated in the memorandum of that court (175 AD2d 33).

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


text:
    William P. Ryan et al., Respondents, v City of New York, Appellant.
    Argued November 13, 1991;
    decided December 19, 1991

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel (Elaine Rothenberg and Larry A. Sonnenshein of counsel), for appellant.

      Richard P. Broder for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action against New York City on June 5, 1986 to recover for injuries he sustained during the course of his employment as a police officer. Following a jury trial, he was awarded a sum to compensate for past pain and suffering and lost earnings to the date of trial. Additionally, the jury awarded damages for plaintiff’s future pain and suffering and loss of future earning capacity. Defendant’s subsequent motion to offset the award by sums paid to plaintiff from collateral sources was denied insofar as it sought reduction for collateral-source reimbursement for plaintiff’s future lost income. The Appellate Division affirmed.

The courts below correctly declined to reduce plaintiff’s damages award by the income he expected to receive from collateral sources in reimbursement of future losses. CPLR 4545 (b) (1), which governs actions for work-related injuries commenced against public employers before June 28, 1986, authorizes reduction of damages awards only to the extent that "the court finds that [a] cost or expense [included in the award] was replaced or indemnified from [a] collateral source” paid for or sponsored by the employer (emphasis supplied). The use of the past tense in this provision clearly indicates a legislative intention to permit offsets only for collateral-source reimbursements for preverdict losses.

Moreover, defendant’s argument to the contrary is refuted by the language and history of CPLR 4545 (b)’s companion provisions: CPLR 4545 (a), which governs medical malpractice actions, and CPLR 4545 (c), which governs all personal injury actions commenced after June 28, 1986 (see, L 1986, ch 220, § 46). CPLR 4545 (a), which originally tracked the language of subdivision (b), was amended in 1985 specifically to permit damages awards to be offset by collateral-source reimbursements for "past or future cost[s] or expensefs]” (see, L 1985, ch 294, § 8). CPLR 4545 (c), which was added in 1986, contains the same specific reference to past and future costs (L 1986, ch 220, § 36). Since the Legislature did not choose to amend CPLR 4545 (b) in a similar fashion, the conclusion is inescapable that the Legislature simply did not intend to permit reductions for future collateral-source payments in actions governed by subdivision (b).

To be sure, the Legislature’s over-all purpose in enacting CPLR 4545 (b) was to prevent double recoveries from public employers by mandating deduction of employer-sponsored collateral-source payments (see, Mem, Assembly Rules Comm, 1984 NY Legis Ann, at 251-252). The existence of such an over-all legislative goal, however, does not materially advance defendant’s position. It is apparent from the plain language of the statute that the Legislature chose to accomplish its purpose by enacting a limited measure addressed only to those “double recoveries” that result from collateral-source reimbursement of preverdict costs and expenses.

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

Order affirmed, with costs, in a memorandum.

      . CPLR 4545 (b) (1) provides, in pertinent part:
      "In any action against a public employer or a public employee who is subject to indemnification by a public employer * * * for personal injury or wrongful death arising out of an injury sustained by a public employee while acting within the scope of his public employment or duties, where the plaintiff seeks to recover for the cost of medical care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such cost or expense was replaced or indemnified, in whole or in part, from a collateral source provided or paid for, in whole or in part, by the public employer * * * If the court finds that any such cost or expense was replaced or indemnified from any such collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the contributions of the injured public employee for such benefit.”

      . Although CPLR 4545 (b) (3) provides for the admission of certified actuarial reports as "evidence of the present value of any death benefit, dependent benefit or disability retirement allowance,” we do not deem it persuasive proof of a contrary Legislative intent. As the trial court noted, at the time subdivision (b) (3) was enacted (L 1984, ch 701), it was not customary for the jury to consider the present value of future damages and there was no statutory provision authorizing the court or the jury to reduce future damages to their present worth. Thus, it is unclear what the Legislature had in mind when it enacted the provision. What is fairly clear, however, is that the provision was not enacted to facilitate any offset for future collateral-source income under CPLR 4545 (b) (1). Since any reduction of future collateral-source payments to present value would be met with a parallel reduction in the future damages to be offset, subdivision (b) (3)’s provisions would have no practical effect in this context.


text:
    Harvey C. Jones, as Parent and Natural Guardian of Harvey C. Jones, Jr., an Infant, Appellant, v Park Realty et al., Respondents.
    Argued November 14, 1991;
    decided December 19, 1991

      APPEARANCES OF COUNSEL

      James J. Duggan for appellant.

      Edward C. Cosgrove, Judith Blake Manzella and John P. Freedenberg for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (168 AD2d 945 [Appeal No. 2]).

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


text:
    Carol Anderson et al., Appellants, v Eli Lilly & Company et al., Respondents, et al., Defendants.
    Argued November 20, 1991;
    decided December 18, 1991
    APPEARANCES OF COUNSEL

      Norman E. Frowley, Leonard L. Finz, Stuart L. Finz and Mark Bower for appellants.

      Russel H. Beatie, Jr., Chama L. Gerstenhaber, Charles J. Biederman, David M. Covey and Jack Gross for Eli Lilly & Co. and another, respondents.

      Paul K. Stecker and Tamar P. Halpern for E.R. Squibb & Sons, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, whose wife allegedly suffered certain injuries to her reproductive system due to her in útero exposure to the drug diethylstilbestrol (DES), commenced this action against defendants, several manufacturers of DES, asserting a derivative cause of action for loss of consortium. Prior to trial, defendants moved for summary judgment, contending that plaintiff could not recover for loss of consortium since his wife’s exposure to DES and her resultant injuries occurred before the marriage. That motion was granted, and on appeal, the Appellate Division affirmed.

It is by now well settled that a cause of action for loss of consortium does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage (see, Mehtani v New York Life Ins. Co., 145 AD2d 90, 95, lv denied in part and dismissed in part 74 NY2d 835; Briggs v Butterfield Mem. Hosp., 104 AD2d 626; Rademacher v Torbensen, 257 App Div 91). Contrary to plaintiff’s contention, the rationale underlying this rule is not limited to situations where the injuries to the spouse in question are manifest at the time of the marriage. As the Appellate Division explained below: "Consortium represents the marital partners’ interest in the continuance of the marital relationship as it existed at its inception (see, Millington v Southeastern Elevator Co., 22 NY2d 498, 504-505), not upon some guarantee that the marital partners are free of any preexisting latent injuries” (158 AD2d 91, 94; see, Clark v Lilly & Co., 725 F Supp 130, 130-131 [ND NY 1989]).

Plaintiff’s contention that the Legislature’s enactment of the new discovery Statute of Limitations (CPLR 214-c) dictates a different result here is likewise unavailing. As we recently explained in Enright v Lilly & Co. (77 NY2d 377, cert denied — US —, 112 S Ct 197): "[CPLR 214-c] was directed at opening up traditional avenues of recovery by removing a procedural barrier that was unreasonable given the nature of DES injuries. Nothing in the legislation [however] suggests that the Legislature intended to expand the basis for liability” (id., at 384). Similarly, we find plaintiff’s reliance on the so-called revival statute (L 1986, ch 682, §4) to be misplaced. That provision merely temporarily revived certain previously time-barred claims — it did not act to create any new causes of action (see, Metauro v Abbott Labs., 146 Misc 2d 537, 538-539; Walsh v Armstrong World Indus., 700 F Supp 783, 785 [SD NY 1988]).

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

Order affirmed, with costs, in a memorandum.

      . See also, Annotation, Recovery for Loss of Consortium for Injury Occurring Prior to Marriage, 5 ALR4th 300, 301 (noting that most jurisdictions "have denied recovery for loss of consortium where the injury occurs before the marriage”); Prosser and Keeton, Torts § 125, at 932 (5th ed) (same); 2 Speiser, Krause and Gans, The American Law of Torts § 8:22, at 580 (same); Restatement (Second) of Torts § 693, comment h.

      . Cf., Walsh v Armstrong World Indus., 700 F Supp 783, 785 (SD NY 1988) (noting that where the injured spouse is in the relatively early stages of a progressive disease at the time of the marriage, a loss of consortium claim may lie in favor of the other spouse, since under such circumstance "both the quality and quantity of consortium [will] decrease with time”).


text:
    The People of the State of New York, Respondent, v Edward Williamson, Appellant.
    Argued November 15, 1991;
    decided December 18, 1991

      APPEARANCES OF COUNSEL

      Walter J. Evans, Jr., and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Daniel S. Ratner and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Bronx County, for further proceedings in accordance with this memorandum.

Defendant was charged with first degree robbery arising out of a knifepoint street encounter in The Bronx. The complainant identified him out of a photo array. At a hearing to determine whether a Wade hearing was required, the complainant testified that prior to the robbery she had seen the defendant more than 10 times in the bodega where she worked, and had seen him more than 20 times in the neighborhood where they both lived. The court cut off cross-examination of the complainant in several relevant respects, and concluded that the photo identification was confirmatory, that CPL 710.30 notice was not required, and that there was no evidence of impermissible suggestiveness by the police.

Defendant was convicted after a jury trial, and the Appellate Division affirmed the judgment, finding that although the curtailment of cross-examination was error, the complainant’s testimony sufficiently established the confirmatory nature of the photo identification (161 AD2d 489).

We agree that it was error to restrict cross-examination under these circumstances, because once the complainant was called as a witness for the People at the hearing, defendant had the right to cross-examine her (contrast, People v Chipp, 75 NY2d 327). Unlike the Appellate Division, however, we conclude that the error requires a reversal. The issue central to the hearing was the extent of the complainant’s prior familiarity with the defendant and that issue became crucial at trial in this single-witness identification case. Thus, the preclusion of an adequate opportunity to cross-examine on that key issue eliminated any supportable basis upon which to find that the photo identification was the product of prior familiarity and, therefore, merely confirmatory (see, People v Newball, 76 NY2d 587; People v Collins, 60 NY2d 214). The case must be remitted for a hearing to determine whether a Wade hearing is required. If, after that pr e-Wade hearing, the court concludes that a Wade hearing is not required, the judgment should be amended to reflect that determination and the judgment of conviction and sentence treated as affirmed. If, after the pr e-Wade hearing, the nisi prius court determines that a Wade hearing is required, a Wade hearing should be held and further proceedings, including a new trial, should be carried out as circumstances may warrant. We have examined defendant’s remaining argument and conclude it is without merit.

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

Order reversed, etc.


text:
    Triangle Sheet Metal Works, Inc., Appellant, v James H. Merritt and Co. et al., Respondents.
    Argued November 19, 1991;
    decided December 19, 1991

      APPEARANCES OF COUNSEL

      Gary L. Rubin and Robin E. Woodward for appellant.

      Eli S. Cohn and Howard S. Jacobowitz for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Triangle Sheet Metal Works, Inc. (Triangle) — a subcontractor on a New York City public works project— commenced this action against defendant James H. Merritt and Co. (Merritt) — the prime contractor by which it had been hired, seeking damages for various delays in the performance of its subcontract. At the close of Triangle’s case, the trial court granted Merritt’s motion to dismiss, concluding that Triangle had failed to make out a prima facie case since it had not offered any evidence that Merritt was responsible for any of the delays in question. On appeal, the Appellate Division affirmed.

This case falls squarely within the general rule that, absent a contractual commitment to the contrary, a prime contractor is not responsible for delays that its subcontractor may incur unless those delays are caused by some agency or circumstance under the prime contractor’s direction or control (see, Norcross v Wills, 198 NY 336, 341-342; McGrath v Electrical Constr. Co., 230 Ore 295, 302-303, 364 P2d 604, 608; Doyle & Russell v Welch Pile Driving Corp., 213 Va 698, 700-701, 194 SE2d 719, 721). Contrary to Triangle’s contention, there is simply no basis for concluding that a prime contractor — which often times lacks control over much of the work to be performed at a particular project — has implicitly agreed to assume responsibility for all delays that a subcontractor might experience — no matter what their cause (cf., Grad v Roberts, 14 NY2d 70, 75 ["in every contract there is an implied undertaking on the part of each party that (it) will not * * * do anything to prevent the other party from carrying out the agreement on (its) part” (emphasis supplied)]). If a subcontractor wants a prime contractor to be a guarantor of job performance, it should bargain for the inclusion in its subcontract of a provision to that effect.

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 Raymond Williams, Appellant.
    Decided December 19, 1991

      APPEARANCES OF COUNSEL

      William A. Loeb and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Alexei Schacht of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (172 AD2d 448).

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


text:
    The People of the State of New York ex rel. Malik Allah, Appellant, v Arthur Leonardo, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Submitted December 16, 1991;
    decided December 19, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    State of New York, Respondent, v Joseph Coyle et al., Appellants.
    Submitted December 16, 1991;
    decided December 19, 1991
   On the Court’s own motion, appeal, insofar as taken from the November 7, 1991 order of the Appellate Division, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved and, insofar as taken from the November 27, 1991 judgment of Supreme Court, dismissed, without costs, upon the ground that the November 7, 1991 Appellate Division order is the final appeal-able paper in this action (see, CPLR 5611). Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Rodney Taylor, Appellant, v Frederick Richardson, as Superintendent of Cayuga Correctional Facility, Respondent.
    Submitted December 16, 1991;
    decided December 19, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when 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:
    Voorheesville Rod & Gun Club, Inc., Respondent, v E. W. Tompkins Company, Inc., Appellant.
    Submitted November 4, 1991;
    decided December 19, 1991
   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. Cross motion for imposition of sanctions denied.


text:
    In the Matter of Department of Personnel of the City of New York et al., Appellants, v New York City Civil Service Commission, Respondent, and Kevin White, Respondent.
    Argued November 21, 1991;
    decided December 23, 1991
    APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Elaine Rothenberg and Larry A. Sonnenshein of counsel), for appellants.

      Raymond E. Kemo for Kevin White, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the petition granted, the cross petition dismissed, and so much of respondent New York City Civil Service Commission’s determination as awarded Kevin White back pay annulled.

In January 1985 respondent White was appointed to the New York City Housing Authority Police Department, subject to a background check. While still a probationary employee, he was terminated by petitioner for failing to provide certain information on Ms application and because he was believed to be medically disqualified. White took an administrative appeal to respondent Civil Service Commission. The Commission reversed petitioner’s determination, restored White to Ms position and awarded Mm back pay, for the period he had not worked for the Police Department, less any amounts earned or received as unemployment benefits. Petitioner instituted this proceeding challenging the award of back pay, contending that the Commission had no power to grant that relief in the absence of a statute or contract authorizing it to do so and that, in the absence of such áuthorization, the payment constituted an unlawful gift of public funds (see, Matter of Antonopoulou v Beame, 32 NY2d 126, 131).

An administrative agency has only those powers expressly or impliedly given it (see, Matter of Nicholas v Kahn, 47 NY2d 24, 31). We have delineated the powers reserved to the Commission as “those of an appeals board: to hear and decide appeals by persons aggrieved by [petitioner’s] determinations” (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 442, citing NY City Charter § 812 [c] [now subd (d)]) and to hear and decide appeals in disciplinary proceedings (Civil Service Law § 76; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 442, supra). In hearing such appeals the Commission may only “affirm, modify or reverse” petitioner’s determination (NY City Charter §812 [d]). The power to award back pay is neither expressly given nor may it necessarily be implied as a part of the Commission’s delegated powers. In the absence of such authority, the Commission may not grant back pay (see, Matter of City of Mount Vernon v State of New York Bd. of Equalization & Assessment, 92 AD2d 985, 988).

Respondent White contends authority for the award is to be found in section 77 of the Civil Service Law. However, that section concerns compensation of employees reinstated "by order of the supreme court.” Section 77 is therefore inapplicable to this case because respondent was reinstated by the Commission, not by the court (contra, Matter of Sterling v Levitt, 168 AD2d 314, lv denied 77 NY2d 810). Moreover, insofar as the Appellate Division relied upon our decision in Matter of Garayua v New York City Police Dept. (68 NY2d 970) to support its determination, we note that in that case the award of back pay was not challenged before this Court.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Patrick Norton, Respondent.
    Argued November 21, 1991;
    decided December 23, 1991

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Leonard I. Picker and Norman Barclay of counsel), for appellant.

      Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree that the prosecution failed in its burden to establish that the hearsay statements in issue fell within the "excited utterances” exception, by showing that declarant’s several statements, beginning some time after a stabbing and continuing through Ms hospitalization, were made under the influence of the event and stilled his reflective powers (People v Nieves, 67 NY2d 125, 131). From declarant’s level of responsiveness, Ms activity and his condition, it could not reasonably be concluded "that the remarks were not made under the impetus of studied reflection.” (People v Edwards, 47 NY2d 493, 497; see also, People v Brooks, 71 NY2d 877; People v Brown, 70 NY2d 513.) In light of this conclusion, we need not and do not consider whether the Appellate Division misapplied the governing legal standards by requiring that the declarant appear to others to have been in a life-threatening situation, by holding responses to police questions to a different standard from other statements made after a startling event, and by considering a recantation made by declarant three months after the stabbing as evidence that declarant had a motive to fabricate Ms statement at the time of the stabbing.

Titone, J.

(dissenting). In affirming the order below rather than dismissing the People’s appeal from that order, the majority has misapplied the rules governing our jurisdiction in criminal cases and, in consequence, has sown the seeds for future confusion. Since accuracy, precision and consistency are critical values in this exacting area of law, I cannot join in the majority’s disposition. Accordingly, despite my probable agreement with the majority’s assessment if the merits could be reached, I write separately to explain why the posture of this appeal requires a dismissal.

CPL 450.90 (2) (a) provides that "[a]n appeal to the court of appeals from an order of an intermediate appellate court reversing * * * a judgment * * * of a criminal court may be taken only if * * * the intermediate appellate court’s determination of reversal * * * was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (emphasis supplied). The statute, as amended in 1979 (L 1979, ch 651, § 1), also demands that the factual or legal nature of the ruling below be determined by this Court. Thus, even where the intermediate appellate court’s order recites that its reversal was "on the law” alone, this Court must examine the decision and, where appropriate, the record below to determine whether the recitation correctly reflects the basis of the order sought to be appealed. And, when the Court’s examination reveals that the decision was not based "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal,” the appeal must be dismissed (see, e.g., People v Greene, 64 NY2d 850; People v Hogya, 56 NY2d 602; People v Bay, 54 NY2d 808).

In this instance, although the Appellate Division order of reversal recites that it was based "on the law,” a review of its opinion establishes beyond peradventure that its determination was, in reality, based on its disagreement with the trial court on the proper factual conclusions to be drawn from the evidence. The specific issue which concerned the intermediate appellate court was whether the various out-of-court statements made by the victim in the aftermath of the stabbing were admissible under the "excited utterance” exception to the rule against hearsay. Contrary to the majority’s assertion (majority opn, at 809, n), problems falling into this category are typically treated not as law questions, but rather as "mixed” questions, requiring application of settled legal principles to the particularized facts of the case (see, e.g., People v Nieves, 67 NY2d 125, 135 ["determination whether * * * statements qualified as excited utterances requires factual determinations”]; People v Edwards, 47 NY2d 493, 497 ["admissibility of an excited utterance is entrusted in the first instance to the trial court” (emphasis supplied)]; People v Marks, 6 NY2d 67, 76-77 [admissibility of excited utterance is a "preliminary fact question”]). Indeed, in this Court’s two most recent decisions involving excited utterances, we resolved the evidentiary questions presented by stating only that "we cannot say that the trial court erred in admitting the statements as excited utterances” (People v Brooks, 71 NY2d 877, 879; People v Brown, 70 NY2d 513, 522). The use of this formulation, in which the Court merely accepted or refused to disturb a trial court’s determination, would make little sense if the admissibility issue were a pure "question of law” squarely within the Court of Appeals own purview (cf., People v Harrison, 57 NY2d 470, 477). More importantly, in assessing the appealability of an order under CPL 450.90 (2) (a), the salient question is not, as the majority suggests, whether the underlying issue is one of law (see, majority opn, at 809, n), but rather whether the intermediate appellate court actually based its decision on a legal, as distinguished from a factual, conclusion (see, People v Cona, 49 NY2d 26, 33-34; see also, People v Albro, 52 NY2d 619; compare, CPL 470.35 [2] [a], [b] [addressing reviewability on appeals from orders of reversal or modification]). On this point, it is clear from the opinion of the Appellate Division majority in this case that the court’s reversal was based not on the law, but rather on its differing assessment of the facts and the inferences that should be drawn from those facts.

The majority first reviewed the testimony on the record in detail, making special note of the inconsistencies and other credibility problems that it perceived (164 AD2d 343, 345-346, 346-347, 348). The court also considered the parts of the victim’s medical records that it deemed "pertinent,” in particular, those that reflected on the degree to which the victim had been traumatized by his injuries (id., at 348; see, e.g., People v Brown, supra, at 520). The majority even went beyond the face of the "cold, bare record,” stating that it had observed "the demeanor of the [declarant-]victim Roídos” by "listening] to his tape recorded recantation,” had "f[ound]” Roídos to be "calm” and "not fearful or confused” (160 AD2d, at 348) and had further found Roldos’s recantation to be "powerful impeachment material” that was "[a]s illuminating as it was compelling” (id., at 349).

Further, after reviewing the legal principles governing the admissibility of excited utterances (id., at 351-353), the Appellate Division majority stated its own "belief” that the victim’s injury was not sufficient "to have precipitated excited utterances” (id., at 353). Based on what it felt "[t]he transcript amply and repeatedly demonstrates,” the court decided to reject the trial testimony of the officers who had obtained the disputed declarations and instead drew its own conclusion that these officers were themselves "unimpressed by the [declarant’s] injuries” at the time his statements were made (id., at 353-354). It then went on to consider a number of relevant factors, including the declarant’s vital signs, his "conversational ability,” the "factor of inquiry,” the sufficiency of the declarant’s opportunity to reflect and, finally, his motive to falsify, as to which the "compelling evidence” of the recantation tape was most useful as "impeach[ment of] the hearsay [declarations]” (id., at 354-355). And, if any doubt remains about the basis of the Appellate Division’s decision, such doubt is necessarily dispelled by the court’s own closing statement that it was ruling the out-of-court declarations inadmissible "upon our application of the legal standards to the facts in the case at bar” (id., at 355). Such a formulation, which is routinely used in "mixed question” determinations, makes it clear beyond dispute that the Appellate Division’s order of reversal was not made "on the law alone.”

In view of the Appellate Division’s lengthy and dispositive review of the facts, the majority’s cursory footnote (majority opn, at 809, n), which attempts to address the appealability issue, is plainly inadequate. Even if it were true that, in the abstract, the admissibility of excited utterances is a pure question of law and is therefore reviewable in this Court in a proper case, that conclusion would not explain how the specific order of reversal before us, which was explicitly predicated on factual determinations (including a credibility assessment), could be construed to satisfy the statutory standard for appealability. In the absence of any colorable, much less persuasive, effort by the majority to grapple with what the court below actually did, I must conclude that the order 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.” Accordingly, dismissal of the appeal is required.

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

Order affirmed in a memorandum.

       While consideration of whether this exception applies requires factual determinations — which we have held are to be made in the first instance by the trial court, as opposed to the jury (People v Nieves, 67 NY2d, at 135; People v Edwards, 47 NY2d 493, 497; People v Marks, 6 NY2d 67, 76-77) (see, dissenting opn, at 810-811) — the question whether a given set of facts takes a declarant’s statement outside the exception is one of law which this Court may review (People v Brown, 70 NY2d 513, 520). Indeed, as the reported decisions of this Court indicate, it is a law question which we have frequently addressed.

      . The majority’s citation to People v Brown (70 NY2d 513, 520) suggests that its present assertion is based primarily on the Brown Court’s characterization of the issue before it as "whether * * * the lapse of * * * time between the event and the * * * statements * * * and the fact that they were made in reply to * * * formalized questioning * * * take the statements outside the excited utterance exception to the rule against hearsay, as a matter of law” (id., at 520 [emphasis supplied]). However, as is evident from this language, as well as the rest of the Brown opinion, the point was not to establish the admissibility issue as a "question of law” in all cases, but rather to refute the argument that in the above-described circumstances the law precludes a finding of admissibility.

      . The majority’s assertion that the admissibility of "excited utterances” is a pure question of law is particularly surprising in view of the nature of the inquiry. As was stated in People v Edwards, (47 NY2d 493, 497) and reiterated in People v Brown (70 NY2d 513, 519) "The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” (emphasis supplied). Such an inquiry, which requires the decision-maker to weigh a number of variables and draw inferences from the proven facts, is typical of "mixed question” analysis (see, e.g., People v Centano, 76 NY2d 837, 838; People v Harrison, 57 NY2d 470, 477; People v McRay, 51 NY2d 594, 601) and is precisely the kind of fact-laden exploration that the Court of Appeals, as a "court of law,” has previously shunned. Significantly, because it has determined that the admissibility issue is a law question, the majority has placed itself in the position of having to hold as a matter of law that none of the out-of-court declarations made by the victim were admissible as excited utterances — even the ones that were made immediately after he "hopped” or "ran” to the patrol car and, while sweating and speaking rapidly and appearing "frightened, wide-eyed and upset,” told the police he had been stabbed and that defendant was the assailant. While reasonable minds may certainly differ as to the inferences that could be drawn from these facts (and I tend to agree with the Appellate Division majority’s views on the point), I find it farfetched, at best, to suggest that on no view of these events could a contrary conclusion be reached.

      . I am puzzled by the majority’s statement that it need not decide whether the Appellate Division erroneously considered the declarant’s recantation in determining that his earlier statements were inadmissible hearsay (majority opn, at 809). This Court is mandated by CPL 450.90 (2) (a) to consider all of the Appellate Division’s conclusions insofar as they affect our jurisdiction to entertain the appeal.


text:
    John N. Grasso, Appellant, v Kelly M. Angerami, Respondent.
    Decided December 23, 1991

      APPEARANCES OF COUNSEL

      Lawrence J. Zyra for appellant.

      Arete Kontogiannis for respondent.
   OPINION OF THE COURT

Memorandum.

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

In opposition to defendant’s motion for summary judgment pursuant to Insurance Law § 5102 (d), plaintiff tendered proof of "serious injury” in inadmissible form, namely an unsworn doctor’s report. Inasmuch as plaintiff did not offer any excuse for his failure to provide the medical report in proper form, we need not consider whether proof of serious injury in inadmissible form is sufficient to defeat a motion for summary judgment pursuant to Insurance Law § 5102 (d), if an acceptable excuse for the deficiency is offered.

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, with costs, in a memorandum.


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    The People of the State of New York, Respondent, v Mariano A. Zanghi, Appellant.
    Decided December 23, 1991

      APPEARANCES OF COUNSEL

      Michael C. Walsh and Linda S. Reynolds for appellant.

      Kevin M. Dillon, District Attorney (J. Michael Marion of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the guilty plea vacated, the superior court information dismissed and the case remitted to the Supreme Court, Erie County, for further proceedings in accordance with this memorandum.

Defendant was charged, by felony complaint, with fourth degree criminal possession of stolen property (Penal Law § 165.45 [5]) and third degree unauthorized use of a vehicle (Penal Law § 165.05 [1]). Following his arraignment, defendant waived a preliminary hearing and was held for Grand Jury action with respect to those charges. Two weeks later, defendant executed a written waiver of indictment and consented to be prosecuted on an information charging him with third degree criminal possession of stolen property (Penal Law § 165.50). He then pleaded guilty to that charge, and a judgment of conviction was entered against him.

On appeal from the judgment, defendant argued that his guilty plea should be vacated because the information on which he was prosecuted was jurisdictionally defective. Specifically, he argued that when indictment is waived pursuant to article I, § 6 of the NY Constitution (NY Const, art I, § 6), the accusatory instrument on which the defendant is to be prosecuted must contain either the offense for which he was held for Grand Jury action or one or more lesser included offenses and may not contain an offense greater than that charged in the original felony complaint. Thus, according to defendant, the information on which he was prosecuted, which charged him with criminal possession in the third degree rather than the fourth degree crime on which he was arraigned, was unauthorized and could not serve as a proper jurisdictional predicate for his guilty plea. Although the Appellate Division, relying on People v Menchetti (76 NY2d 473), rejected this contention, we agree with the arguments advanced by defendant.

As a threshold matter, since an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court, the claim may be reviewed even though defendant did not object to being prosecuted on the information he now claims was defective and, in fact, consented to be prosecuted on it (see, People v Boston, 75 NY2d 585, 589, n). Further, because it is jurisdictional, an infringement upon the right to be prosecuted by indictment is not waived by the entry of a guilty plea (People v Menchetti, supra, at 475, n; People v Boston, supra, at 589, n).

As to the merits, the Constitution provides that a person may be tried for an "infamous” crime only upon an indictment issued by a Grand Jury, except in one narrow circumstance: where "a person held for the action of a grand jury upon a charge for [an infamous] offense * * * waive[s] indictment * * * and consents] to be prosecuted on an information filed by the district attorney” (NY Const, art I, § 6). CPL 195.20, which implements this constitutional provision, provides that "[a] waiver of indictment shall be evidenced by a written instrument” that designates "each offense to be charged in the * * * information.” Under CPL 195.20, "[t]he offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to [CPL] 200.20 and 200.40.”

In People v Menchetti (supra, at 475), we construed the constitutional and statutory provisions as requiring "that the information charge an offense for which the defendant was held for Grand Jury action.” While, as we held in Menchetti, the "offense” referred to in the statute may be deemed to include all lesser included offenses of the same crime (id., at 475), it cannot also be deemed to include greater offenses, which have additional aggravating elements (see, People v Smith, 86 Misc 2d 1032, cited in People v Menchetti, supra, at 477).

Contrary to the People’s contention, the existence in the factual portion of the felony complaint of sworn allegations that may have been sufficient to establish the additional element necessary for the higher offense is irrelevant in this context. Since the crime charged in the accusatory part of the felony complaint was fourth degree criminal possession, any allegations tending to prove that additional element were mere surplusage and their sufficiency need never have been considered by the arraigning court. Consequently, it cannot be said, in any sense, that the higher crime of third degree criminal possession was an "offense for which the defendant was held for action of a grand jury” (CPL 195.20).

Finally, we reject the People’s argument that the information here was jurisdictionally sufficient because the offense it alleged was one that was "properly joinable” with the "offense for which the defendant was held” (see, CPL 195.20). The language of CPL 195.20 makes clear that where "joinable” offenses are included, the information must, at a minimum, also include at least one offense that was contained in the felony complaint ("offenses named [in the information] may include any offense for which the defendant was held * * * and any offense or offenses properly joinable therewith” [emphasis supplied]). Since the information here did not meet that criterion, it is unnecessary for us to decide in this case whether CPL 195.20’s provision for including joinable offenses along with the offense for which the defendant was held is consistent with the constitutional provisions for waiver of indictment (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 195.20, at 383).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


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    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Westchester County S.P.C.C. et al., Appellants.
    Submitted October 28, 1991;
    decided December 23, 1991
   Motion by defendant Ellman 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. Motion by the remaining defendants dismissed upon the ground that they are not parties aggrieved by the order of the Appellate Division.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Westchester County S.P.C.C. et al., Defendants, and "A", Appellant.
    Submitted November 25, 1991;
    decided December 23, 1991
   Motion for reargument of motion for leave to appeal granted and, upon reargument, motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. [See, 78 NY2d 1041.]


text:
    In the Matter of Brooklyn Society for the Prevention of Cruelty to Children, Respondent, v Amy Neustein, Appellant, et al., Respondents. (Proceeding No. 1.) In the Matter of Ozzie Orbach, Respondent, v Amy Neustein, Appellant. (Proceeding No. 2.)
    Submitted November 4, 1991;
    decided December 23, 1991
   Motion to dismiss the appeal granted and appeal, insofar as taken from the May 30, 1989 Appellate Division order, dismissed upon the ground that it does not lie and, insofar as taken from the August 12, 1991 Appellate Division order, dismissed upon the ground that no substantial constitutional question is directly involved. Four hundred dollars costs and $100 costs of motion awarded to petitioner Orbach. Motion for the imposition of sanctions denied.


text:
    In the Matter of Congregation Emanu-el of the City of New York et al., Respondents, v Brendan Sexton, Individually and as Commissioner of the Department of Sanitation of the City of New York, et al., Appellants.
    Submitted November 12, 1991;
    decided December 23, 1991
   Motion to dismiss the appeal granted and appeal dismissed with $400 costs and $100 costs of motion as moot.


text:
    In the Matter of Seymour Davis, Respondent. Shayne-Levy Associates, Inc., Appellant.
    Submitted November 12, 1991;
    decided December 23, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which granted petitioner permission to serve an amended complaint stating a cause of action pursuant to Business Corporation Law § 626 against Arthur Levy individually, 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 with $100 costs and necessary reproduction disbursements.


text:
    Miles Gordon, Appellant, v Robert Adenbaum et al., Respondents.
    Submitted November 12, 1991;
    decided December 23, 1991
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the March 25, 1991 order of the Appellate Division, dismissed as untimely (CPLR 5513 [b]).


text:
    Manhattan School of Music et al., Respondents, v Sheldon H. Solow, Appellant.
    Submitted October 28, 1991;
    decided December 23, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the order denying the recusal motion, 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 with $100 costs and necessary reproduction disbursements.

Judge Bellacosa taking no part.


text:
    Lois Mason et al., Appellants, v City of New York et al., Respondents.
    Submitted November 4, 1991;
    decided December 23, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    George J. Roukis et al., Appellants, v Stanley J. Skinner et al., Respondents. (And Another Action.)
    Submitted October 28, 1991;
    decided December 23, 1991
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Cross motion for imposition of sanctions denied.


text:
    Edward Skibinski, as Administrator of the Estate of Alice V. Reed, Appellant, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted November 4, 1991;
    decided December 23, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Denise Sobel, Appellant, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents.
    Submitted December 16, 1991;
    decided December 23, 1991
   Appeal 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 when 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:
    In the Matter of Alcoma Corp., Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Decided January 9, 1992

      APPEARANCES OF COUNSEL

      Jeffrey Turkel and Gary M. Rosenberg for appellant.

      Lawrence Alexander and Dennis B. Hasher for New York State Division of Housing and Community Renewal, respondent.

      Elizabeth C. McNicoll and Stewart L. Levy for Martha Bedford, respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner — the owner of a previously rent controlled apartment — served, by mail, a DC-2 notice on the first rent-stabilized tenant in occupancy, informing the tenant of its right to file a Fair Market Rent Appeal. When the tenant thereafter filed such an appeal, petitioner challenged it on timeliness grounds, arguing that the former Code of the Rent Stabilization Association of New York City, Inc., required that the appeal be filed within 90 days of the tenant’s receipt of the DC-2 notice even though the notice was not served by certified mail. The New York State Division of Housing and Community Renewal (DHCR) ultimately rejected this contention. Petitioner contends that it erred in doing so. We disagree. Section 26 (A) of the former Code provides that the owner of a previously rent-controlled apartment "shall” serve a DC-2 notice upon the first rent-stabilized tenant in occupancy "by certified mail” (emphasis supplied). Section 25 (B) then provides that the tenant must file its Fair Market Rent Appeal "within ninety (90) days after [it] receives the [DC-2 notice] as required by Section 26 (A)” (emphasis supplied). DHCR interpreted these provisions as requiring that the owner serve the DC-2 notice by certified mail before the 90-day limitation period for filing^. Fair Market Rent Appeal commences to run. Inasmuch as this interpretation is neither unreasonable nor irrational, there is no basis for disturbing it (see, Matter of Salvati v Eimicke, 72 NY2d 784, 791).

We have examined petitioner’s remaining contentions and find them to be without merit.

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

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


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    The People of the State of New York, Respondent, v Anthony DiFabio, Appellant.
    Decided January 9, 1992

      APPEARANCES OF COUNSEL

      John W Condon for appellant.

      William G. Gandy, Special District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s child witness competency determination during the Grand Jury proceedings was proper, inasmuch as that participation was not precluded by the Criminal Procedure Law (see, CPL 190.30 [6]; 190.25 [6]). Moreover, our interpretation of CPL 190.30 (6) in People v Groff (71 NY2d 101, 104 [”(a)t the Grand Jury stage of a criminal proceeding, determinations of witness competency must be made by the District Attorney”]) does not require a different result, because that interpretation defined the scope of the prosecutor’s responsibilities. It did not curtail the trial court’s power to participate in Grand Jury proceedings.

Finally, any error that may have resulted when the courts below permitted the victim’s mother to recount statements made by the victim while asleep was clearly harmless, given the other overwhelming evidence of defendant’s guilt.

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:
    James B. Clark, Appellant, v Carmen S. Scibilia et al., Respondents.
    Submitted December 2, 1991;
    decided January 9, 1992
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with the requirements of section 500.11 (d) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d]).

Judge Hancock, Jr., taking no part.


text:
    Unigard Security Insurance Company, Inc., Plaintiff, v North River Insurance Company, Defendant.
    Decided January 9, 1992
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Kaye.


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    The People of the State of New York ex rel. David Lazer, on Behalf of Antonio Palmieri, Respondent, v Warden, New York County Men's House of Detention, Appellant. The People of the State of New York ex rel. Rory J. Cutaia, on Behalf of Roberto Esposito, Respondent, v Warden, Brooklyn Correctional Facility, Appellant.
    Decided January 14, 1992

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart of counsel), for appellants.

      David Lazer for Antonio Palmieri, respondent.

      Rory J. Cutaia for Robert Esposito, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the Supreme Court judgments reinstated.

Relators — foreign nationals with no ties to New York or the United States — are charged with attempted grand larceny in the first degree (a class C felony) for their complicity in a scheme to sell allegedly worthless promissory notes to an undercover detective. The notes, issued by an agency of the Indonesian government, had a face value in excess of $8,000,000.

The nisi prius court, after considering all the statutory factors (see, CPL 510.30 [2]), denied bail to relator Esposito and set bail at $150,000 for relator Palmieri. That court found that the case against relators was strong; would likely result in a conviction; and that a sentence of incarceration would be appropriate. In addition, in relation to the transactions at issue, the record indicated that Esposito was linked to an alleged financier and arms dealer for the PLO (173 AD2d 425, 426). As there was no abuse of discretion by the nisi prius court, its determinations were "beyond correction in habeas corpus” (People ex rel. Parker v Hasenauer, 62 NY2d 777, 779; see also, People ex rel. Weisenfeld v Warden, 37 NY2d 760, 761).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    John Avildsen, Respondent, v Myroslawa Prystay, Appellant.
    Decided January 14, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, with costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Migdalia Rogers, Individually and as Parent and Guardian of Clarence Rogers, et al., Appellants, v Eugene M. Bell, Respondent.
    Submitted December 2, 1991;
    decided January 14, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Norman F. Russakoff, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted December 16, 1991;
    decided January 14, 1992
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    The People of the State of New York, Appellant, v Anthony Liotta, Respondent.
    Decided January 16, 1992

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Raymond Vallejo of counsel), for appellant.
    Respondent precluded.

      Daniel Rosen for Legal Aid Society, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On November 2, 1988, defendant was indicted and charged with hindering prosecution in the first degree in violation of Penal Law § 205.65. The People filed a notice of readiness on March 23, 1989. In October 1989, defendant moved to dismiss the indictment pursuant to CPL 30.30, on the ground that the People violated his statutory right to a speedy trial.

The People’s contention that a defendant consents to an adjournment either by failing to object to the adjournment, or by defense counsel’s failure to appear is meritless. The right to a speedy trial "is not dependent in any way on whether the defendant has expressed his readiness for trial” (People v Hamilton, 46 NY2d 932, 933-934). Thus, consent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay. For this reason, the Appellate Division correctly held that the prereadiness period from February 27, 1989 to March 23, 1989 was chargeable to the People.

In addition, where, as here, the court grants adjournments after the People have announced the indictment ready for trial, the burden rests on the People to clarify, on the record, the basis for the adjournment so that on a subsequent CPL 30.30 motion the court can determine to whom the adjournment should be charged. Inasmuch as the People failed to do so in this case, the adjournment must be charged to them. For this reason, the period May 17, 1989 to June 14, 1989 was chargeable to the People.

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.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v John Rogelio, Appellant.
    Argued November 15, 1991;
    decided January 16, 1992

      APPEARANCES OF COUNSEL

      Barry D. Leiwant and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (James F. Mullen and Allen H. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that a new trial must be ordered because the prosecutor failed to produce certain Rosario material consisting of a writeup sheet containing statements of a prosecution witness, a police officer. After the trial court’s instructions to the jury were completed, defense counsel stated, “with some reluctance”, to the court for the first time that the prosecutor failed to provide him with the writeup sheet. Defense counsel asked for no relief but merely noted that he was informing the court “for the record because it has come to my attention”. The prosecutor responded that he had told defense counsel before trial that he was welcome to the document, that he had forgotten to provide it and defense counsel had failed to remind him, and that there was nothing he could do at that point. With nothing more said on the matter, the court submitted the case to the jury to commence its deliberations.

By failing to make an unambiguous objection when the Rosario violation was first noted and by indicating to the trial court through his equivocal statements that no remedy was desired, defendant has not preserved the issue for appellate review.

Simons, J.

(dissenting). I would reverse. The People failed to deliver Rosario material to defense counsel before the evidence was closed and, therefore, under settled rules there must be a new trial (see, People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154). Nevertheless, the majority has affirmed, holding unpreserved an objection which defendant had no obligation to preserve. Its decision substantially alters the statutory scheme codifying the Rosario rule, and the decisions of this Court implementing it, without explaining the nature of the changes nor the reasons why they are necessary. Its affirmance under these circumstances can only confuse Judges and practitioners alike.

CPL 240.45 requires the prosecution to make Rosario material available to the defendant. The duty to produce is absolute; the defendant is not required to request it or object during trial if it is not produced. Indeed, we have held that the People’s obligation cannot be avoided even by good faith but unsuccessful efforts to discover and locate covered material (People v Jones, supra, at 553; People v Ranghelle, supra, at 64; see generally, People v Jackson, 78 NY2d 638). Because the entire burden rests on the prosecution, defendant is not required to take any action to preserve his objection to nondisclosure.

Distinguishable are recent cases, cited by the People, in which we required preservation because the failure to produce occurred during pretrial proceedings and the error could easily have been remedied, if brought to the Court’s attention, by a new hearing or other sanction without affecting defendant’s rights at trial (see, People v Jackson, 78 NY2d 900; People v Rivera, 78 NY2d 901). Where the failure to produce occurs during a trial, however, neither the statute nor our cases require a defendant to take affirmative steps to request the material or to note its nonproduction. The mere fact that defendant’s counsel did both in this case should not prejudice his rights.

The incongruity of the majority’s ruling is obvious: the client of an attorney who requests covered material is penalized unless he takes affirmative steps to clearly preserve the Rosario objection but the client of an attorney who says nothing is fully protected and automatically entitled to a new trial.

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

Order affirmed in a memorandum.