text:
    In the Matter of John Balash, Appellant, v New York City Employees’ Retirement System et al., Respondents.
    Argued September 1,1981;
    decided October 13, 1981
    APPEARANCES OF COUNSEL

      Joan Goldberg for appellant.

      Allen G. Schwartz, Corporation Counsel (Larry A. Sonnenshein and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner was retired, pursuant to section B3-39.0 of the Administrative Code of the City of New York, for disability from a position as senior accountant with the New York City Housing Authority. We held (34 NY2d 654) that petitioner had been denied due process because he had not been advised of the medical reports offered against him or afforded the opportunity to controvert them with evidence of his own, and directed that the matter be remanded to the board of trustees of the retirement system for re-determination after notice and an opportunity to be heard.

The judgment entered June 11, 1974 by Special Term made our order the judgment of that court, vacated the board’s prior determination under section B3-39.0 and ordered the board to make a new determination. The medical board of the retirement system, after receiving the reports presented against petitioner in 1972 and reports made in 1972 and 1974 by petitioner’s doctor, reported to the board of trustees on November 14, 1974 that he was “not now” unfit and recommended that petitioner’s “name be restored to a Civil Service Preferred List”. On the basis of that report the board of trustees on January 10, 1975 adopted a resolution which recited that it was acting “pursuant to the provisions of Section B 3-41.0 of the Administrative Code” and certified petitioner, “until March 1,1972, a Senior Accountant, New York Housing Authority, for registry as a preferred eligible * * * for appointment * * * at a salary grade not exceeding that from which he was last retired.” Petitioner was ultimately re-employed after intervening events not germane to the present issue, though by the transportation administration, an agency different from that from which he had been retired in 1972.

The original petition had asked reinstatement and back pay. After his re-employment petitioner moved in the original proceeding for determination of the back pay to which he was entitled. Special Term held him to be entitled to $47,976.07 in back pay as well as to vacation and pension adjustments. On appeal the Appellate Division reversed, concluding that no determination had ever been made concerning petitioner’s capacity in 1972 and that petitioner’s failure to require by mandamus that a 1972 determination be made was not the equivalent of a holding that the original determination was without basis in fact. While we agree with the result reached by the Appellate Division, we arrive at our conclusion by different reasoning.

The necessary implication of the 1975 resolution is that the board of trustees concluded that petitioner was properly retired pursuant to section B3-39.0 in 1972, for the provision under which it purported to act (B3-41.0) deals with periodic medical examination of “any disability pensioner” who is “under the minimum age for service retirement for the group from which he was retired”, and directs the board of trustees if it agrees with the medical board that he “is able to engage in a gainful occupation” to certify his name “as a preferred eligible * * * for appointment to * * * a salary grade not exceeding that from which he was last retired” (emphasis supplied). That redetermination was made only after petitioner was advised that the housing authority had applied for his retirement under section B339.0 on the basis of the medical reports originally submitted in 1972, had himself submitted reports dated September 18, 1972 and October 20, 1974 from his doctor and had stipulated that those reports constituted all the additional evidence he wished to submit. Petitioner could have sought judicial review of the 1975 redetermination on the ground that it did not conform to the mandate of the judgment on remand. Instead he accepted employment with a different agency pursuant to the redetermination. He could not thereafter, without setting that redetermination aside, seek back pay for the period between the time he “was last retired” by the housing authority and the time of his employment by the transportation administration.

Fuchsberg, J.

(dissenting). Unless “down” is “up” and “up” is “down”, I do not see how a determination adverse to the aggrieved civil service employee who is the petitioner in this proceeding can be justified in logic or law. Accordingly, I must vote to reverse and reinstate the judgment at Special Term.

This saga starts with petitioner’s involuntary retirement for alleged emotional disability in March, 1972 following a fatally flawed bureaucratic determination, which this court found it necessary to wipe out (34 NY2d 654). Specifically, when the case finally wended its way here in 1974, we held, mincing no words, that the retirement system had denied the petitioner elementary due process. It gave no proper notice. It kept the medical reports, on which it later claimed it had acted, from the petitioner. It provided him with no opportunity to controvert them.

The result of our decision, as later formally incorporated in a judgment entered by Supreme Court Justice Edward J. Greenfield at Special Term, New York County, was to “vacate”, “annul”, “rescind” and “set aside” the system’s determination. The system’s decision was thus deemed dead; for practical as well as legal purposes, it was as if it had never been. On that assumption, the judgment ordered the system to make an entirely new determination. That there be no delay, it required that this be done within 90 days.

After all, the victim of its administrative misconduct undeservedly was suffering a large and continuing loss of wages and was being forced to undergo the rigors and expense of carrying on a trying litigation to vindicate his rights. But the system took its time, indeed twice the allotted time.

More important, this was not the system’s only evidence of recalcitrance. It is not now disputed that the intent of the court was that the system’s redetermination be one as of 1972, when the petitioner had been so unlawfully separated from his position. Yet, the respondent made no new determination as of 1972. Rather, for reasons it was never to explain, it unresponsively chose to limit its remedial action to a declaration that, as of January 10,1975, petitioner was not unfit for service. The net result was that no determination of fitness as of 1972 survived. And none other than the one of normalcy in 1975 was ever made. Seemingly, then, the employee’s entitlement to the wages of which he was deprived during the period between the unwarranted retirement and the tardy restoral would seem to follow as does the day the night.

To suggest that the petitioner did not move to enforce the consequence of the legal and factual circumstances with which he was thus favored does not abide analysis. He took affirmative steps to follow up on the vacating of his undeserved retirement. Absent redetermination by respondent, petitioner pressed for the monetary damages he had suffered from the erroneous ruling that now was no more. Not surprisingly, nisi prius gave full support to the steps he took. Acting on a contested application in the original proceeding, our State Supreme Court, this time in the person of Justice Xavier C. Riccobono, in June, 1976, set the matter down for assessment of the wages lost. Since, as described in the Justice’s implementing order, the “re-examined petitioner” had been found “not mentally incapacitated”, the court ruled that to deprive the petitioner of his lost income during his wrongful “discharge * * * would frustrate and fail to serve the interests of justice”. One therefore cannot brook belief that, having obtained obliteration of the adverse administrative ruling, so that it no longer was outstanding, petitioner, and not the obdurate respondent, should now be faulted for not having pressed for a form of relief premised on an existent, rather than vanished, determination of capacity.

As it was, before the hearings petitioner so initiated were concluded, and before it had been determined that he had fully met any burden to mitigate his losses during the period of imposed disability, another three years were to elapse. At long last, in 1979, an award for $47,976.07, less sums the petitioner “would have contributed if he had not been wrongfully retired”, was forthcoming, this time from Supreme Court Justice Irving Kirschenbaum. Since then, more time has gone by while the appellate process initiated by the system progressed. Notably, in all these years the system took no further steps to define petitioner’s mental health as less than normal, neither as of 1972, nor as of 1975, nor, for that matter, for and as of any of the years of his resumed employment right up to and including 1981. It follows that, as the record stands, it is a long fixed fact that there was never any cognizable basis for his compelled retirement.

Consequently, it seems difficult to say and the Appellate Division did not, that a “necessary implication” of the system’s 1975 resolution, though it expressly spoke contemporaneously of that year alone, “concluded that petitioner was properly retired” almost three years earlier, i.e., in 1972. Beyond this, such assertion is even less supportable when one considers that the clean bill of health the system gave the petitioner in 1975 was founded on the system’s crediting of the medical report of a particular psychiatrist, Dr. John J. Vetter, who, far from agreeing with the diagnostic label of “paranoid personality” on which the system originally had premised its vacated and unsubstituted ruling, not only found no basis for such a diagnosis, but, instead, made clear that petitioner’s emotional health was “entirely within normal limits”. More significantly if possible, Dr. Vetter had come to essentially the same conclusion back in 1972. In restoring the petitioner, the system could hardly have relied primarily on Dr. Vetter’s emphatic findings to command, its restoral of the petitioner had it not then also accepted the negative opinion in which he had certified that the self-same employee manifested an equal absence of any disabling conr dition in 1972. To suggest that the system, at the same time that it adopted the Vetter view, intended to still adhere to its overruled 1972 stance, as I see it, makes little sense. To assert that there is such a “necessary implication” makes even less. If anything, the only permissible “implication” would have to be to the contrary.

Put another way, in light of the irreconcilability of the Vetter reports with the judicially repudiated initial (1972) administrative holding that the petitioner suffered from the insidious, chronic and well-nigh irradicable mental condition known as paranoia, to draw the unfounded inference is to put a premium on the system’s failure to carry out our clear dictate that, if the vacated determination was to be replaced, the system make a redetermination as of 1972. As every judicial body save the present majority of this court agreed, this the system never did.

The judgment for the petitioner, therefore, should be reinstated.

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

Order affirmed, with costs, in a memorandum.

       The dissent necessitates the following observations: (1) the 1972 determination was set aside on procedural grounds only, (2) the reports before the board in 1972 were considered by it in 1975 and petitioner was told in advance that they would be, (3) it is simply a nonsequitur to conclude that because the board accepted Dr. Vetter’s 1974 report which was not expressly controverted by opposing evidence it necessarily accepted his 1972 report which was contradicted by the reports of three doctors, (4) the 1975 determination in speaking of petitioner as “until March 1, 1972, a Senior Accountant, New York City Housing Authority” and the position “from which he was last retired” necessarily assumes that he was properly retired from that position, a conclusion for which there was substantial evidence before the board, and (5) petitioner’s acceptance of, by failing to contest, that determination is wholly inconsistent with his claim for back pay.

      . Whatever administrative convenience, if any, may have been served by the classification of its 1975 redetermination as one made pursuant to section B3-41.0, it is inescapable that this was not a periodic “medical examination” of the sort which the majority says that ordinance contemplates. Nor, as indicated, did it ever purport to describe petitioner’s condition in 1972. In short, it provides no basis for any “implications”, “necessary” or otherwise, concerning the petitioner as of 1972. Simply put, no basis for the 1972 retirement subsists.

      . My response to the footnote in which the majority replies to this writing may be handled ad seriatim: (1) Its ameliorative suggestion that the 1972 determination was set aside “on procedural grounds only” reflects nothing less than the constitutionally protected right to procedural due process. (2) The strained conclusion that the system’s 1975 determination was one newly determining petitioner’s 1972 state of health is based on no more than the pro forma recital “after reviewing your entire case” in the system’s one sentence 1975 decision. The only physician it referred to by name was Dr Vetter; the year 1972 was never mentioned. (3) Though the other facts in this case give strong indication that the system agreed with Dr. Vetter’s 1972 report, I have never suggested that this is “necessarily” so. Rather, my point is that, under the circumstances already detailed, the majority’s resort to the phrase “necessary implication” in describing its speculation as to what the system in 1975 intended as of 1972 runs counter to everything the record reveals. (4) The system’s 1975 determination, by referring to the historical fact that the petitioner was a senior accountant when he was wrongfully retired in 1972, cannot be stretched to imply that a new 1972 determination was intended. (5) Its final item is but a rehash of the unrealistic argument that the petitioner should have contested the 1975 determination, though, so far as one could tell, it found him in good health, did not presume to make a new 1972 determination and did not try to disturb the vacatur of the old one.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Alfred Berg, Appellant, v George S. Gerber, as Supervisor of the Town of Clarkstown, et al., Respondents.
    Argued September 2, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      James M. Rose and Arthur H. Grae for appellant.

      Everett J. Johns, Town Attorney (Harold Y. MacCartney, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

If, as was concluded at the Appellate Division, the provisions of section 24 of the Town Law are controlling, the affirmance should be for the reasons stated by that court. If, on the other hand, as appellant contends in our court, the provisions of article 3-A, and in particular title 4 thereof, are controlling, there should also be an affirmance.

In our court petitioner points-to the fact that the town has both stipulated and admitted, by failing to deny the allegation of paragraph 3 of the petition, that the Town of Clarkstown is a suburban town and argues that petitioner’s term of office was governed not by section 24 of the Town Law but by section 53-c of the law fixing the term of office of the head of a department of a suburban town. The latter section may cover petitioner since his attorney conceded of record, and the Trial Judge found, that petitioner was head of the town’s engineering department. The result is, however, the same whether section 24 or section 53-c be applied.

The term of office fixed by the two sections is essentially the same. However, section 53-c makes appointees subject to its provisions “removable at the pleasure of the town board unless otherwise provided by local law”, and section 53-a places department heads of suburban towns “in the unclassified service.” Because a person in the unclassified civil service is not protected by section 75 of the Civil Service Law against dismissal without a hearing or for other than misconduct or incompetency (Matter of Glazer v Hankin, 50 AD2d 924, app on constitutional ground dsmd 39 NY2d 743), petitioner would not be helped by application of section 53-c rather than section 24.

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

Order affirmed, with costs, in a memorandum.


text:
    Walhalla Associates, Inc., Appellant, v National Commercial Bank and Trust Company, Respondent.
    Argued September 3, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Athena C. Kouray and Francis Bergan for appellant.

      Anthony J. Carpinello for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (71 AD2d 154): Question certified answered in the affirmative.

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


text:
    Emma A. Mickel, Appellant, v State of New York et al., Respondents.
    (Claim No. 60670.)
    Argued September 3, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Dennis H. Cleary for appellant.

      Robert Abrams, Attorney-General (Stanley Fishman and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court (77 AD2d 794). We note that claimant’s application for permission to file a late claim stating a cause of action for trespass arising out of the same transactions was denied. The issues presented on that application were not before the Appellate Division and are not now before us, and appellant now presses only a claim grounded in the theory of de facto appropriation. Accordingly, we do not reach the trespass issues.

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

Order affirmed, with costs, in a memorandum.


text:
    Frank Mancini, Jr., Appellant, v Edward J. McLaughlin et al., Constituting the State Liquor Authority, Respondents. In the Matter of Jack R. Battipaglia, Appellant, v New York State Liquor Authority, Respondent.
    Argued September 9, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Seymour Howard for Frank Mancini, Jr., appellant.

      Martin P. Mehler for Jack R. Battipaglia, appellant.

      Warren B. Pesetsky for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the relief sought by the appellants granted, with costs.

Before a court can determine whether an agency acted reasonably in taking a particular action it must find that the agency had authority to act in the first instance. In this case neither section 101-b nor any other section of the Alcoholic Beverage Control Law requires that the New York City excise tax or a 20% markup be included in cost, or permits the State Liquor Authority to direct that it be so included. Thus the State Liquor Authority exceeded the authority conferred upon it by statute. Although it appears that the agency’s action is meant as a temporary measure, it may not act in excess of its authority even temporarily.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur in memorandum; Judges JASEN, Jones and Meyer dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (79 AD2d 649).

Order reversed, etc.

November 24, 1981

Motion by State Liquor Authority for reargument or to amend the remittitur granted in the following respects: (1) The remittitur herein is recalled and, when returned, it will be amended to read as follows: Order reversed, with costs, and the relief sought by the appellants granted to the extent of enjoining respondents from enforcing bulletin 529.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur in memorandum; Judges Jasen, Jones and Meyer dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (79 AD2d 649).

(2) The memorandum is amended to reflect the above limitation in the relief granted to appellants and by adding the following sentence: “We reach only the question of the authority’s right to adopt mandatory regulations.”

Motion by the State Liquor Authority otherwise denied.

Motions by Peerless Importers, Inc., and Charmers industries, Inc., to appear as amici curiae on the State Liquor Authority’s motion, denied.


text:
    Robert F. Malerba et al., Appellants, v Incorporated Village of Huntington Bay et al., Respondents, et al., Defendant.
    Argued September 3,1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Edward F. Hayes, III, and Raymond J. Clancy for appellants.

      Vincent D. McNamara for respondents.
   OPINION OF THE COURT

Memorandum. .

The order of the Appellate Division should be affirmed, with costs, on the memorandum of the Appellate Division. We add only that, assuming that awareness by the police of an impending attack would be sufficient to create a special duty, the affidavit in opposition contains nothing from which such awareness can be inferred and, in any event, because it is by a person other than the one who spoke to the police, would be insufficient on that question (Zuckerman v City of New York, 49 NY2d 557, 563).

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

Order affirmed, with costs, in a memorandum.


author: Jasen, J.

text:
    Dorothy Svendsen, Respondent, v Smith’s Moving and Trucking Company et al., Appellants.
    Argued September 8, 1981;
    decided October 13, 1981

      APPEARANCES OF COUNSEL

      Alvin Altman and James C. McMahon, Jr., for appellants. Martin A. Schwartz and Virginia Knaplund for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the Per Curiam opinion of that court (76 AD2d 504). In response to appellant’s arguments advanced before us, we add the following observations : (1) the mandate of the due process clause of the New York State Constitution (art I, § 6), because it is a constitutional provision, takes precedence over the uniformity provision of the Uniform Commercial Code (§ 1-102, subd [2], par [c]); (2) the 1980 amendment of article 9 of the Lien Law in an effort to correct the constitutional infirmity in the garagemen’s lien which we recognized in Sharrock v Dell Buick-Cadillac, (45 NY2d 152) is irrelevant to the issue of the present case, because article 9 specifically excepts from its provisions the lien of a warehouseman under the Uniform Commercial Code and no similar legislative amendment with respect to the latter lien has been enacted; and (3) the 1979 enactment of the Truth-In-Storage Act (General Business Law, art 29-1), if it be applicable at all to the instant noncontractual situation, does not proscribe the summary non judicial sale permitted by section 7-210 of the Uniform Commercial Code which under the reasoning of Sharrock is clearly unconstitutional.

Jasen, J.

(concurring). Stare decisis impels me to concur with the majority in declaring section 7-210 of the Uniform Commercial Code unconstitutional (Sharrock v Dell Buick-Cadillac, 45 NY2d 152), notwithstanding that this very warehouseman’s lien foreclosure provision was recently upheld by the Supreme Court in Flagg Bros. v Brooks (436 US 149).

It is troublesome that this court’s ruling, applicable only in this State, will affect the uniformity of commercial lien law as it exists throughout our Nation. To the extent it will affect the Uniform Commercial Code, this holding undermines a part of that statute on the basis of a single State’s constitutional vagary in interpretation of the due process clause. It also vitiates a prior holding of our court in interpreting the Federal and State due process clauses. We said in Central Sav. Bank v City of New York (280 NY 9, 10): “The clauses are formulated in the same words and are intended for the protection of the same fundamental rights of the individual and there is, logically, no room for distinction in definition of the scope of the two clauses.”

Since the Legislature has seen fit to reform the Lien Law in light of this court’s decision in Sharrock (Lien. Law, § 201-a), it may wish to consider proper legislation to reform the warehouseman’s lien provision in light of this decision in order to again bring New York into the main stream of commercial law.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Jasen concurs in a concurring opinion.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.


text:
    In the Matter of Fannie Burack, Appellant. Robert H. Burack et al., Respondents; Abraham Burack et al., Appellants.
    Submitted August 31, 1981;
    decided October 13, 1981
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Judge Fuchsberg taking no part.


text:
    In the Matter of A. Jack Shiffman, an Attorney, Appellant. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted July 20, 1981;
    decided October 13, 1981
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie. Motion for leave to appeal denied.


text:
    Elizabeth Zazarino, Respondent, v Louis Zazarino, Appellant.
    Submitted September 8, 1981;
    decided October 13, 1981
   Motion to dismiss appeal taken as of right granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division is not in a respect reviewable by the Court of Appeals. Cross motion for leave to appeal denied.


text:
    In the Matter of Ronald Bailey, as Town Justice of the Town of Chesterfield, Essex County.
    Decided October 15, 1981
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Ronald Bailey not be suspended from his office of Town Justice, Town of Chesterfield, Essex County, New York.

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


author: Fuchsberg, J.

text:
    A & J Concrete Corp. et al., Respondents, v Allen Arker et al., Appellants.
    Argued September 3, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Marvin R. Javitz for appellants.

      Robert G. Lucas for respondents.
   OPINION OF THE COURT

Memorandum.

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

We cannot say, as a matter of law; that Supréme Court abused its discretion by granting plaintiffs’ motion, made pursuant to CPLR 2004, for an extension of time within which to serve their complaint. It is within the court’s power to grant such an extension where it is established, as it was in this case, that the delay in service was not willful or lengthy and that it did not cause any prejudice, to the parties. (See Hickland v Hickland, 56 AD2d 978.)

We would note that the courts enjoy a somewhat broader range of discretion when considering a motion for an extension of time under CPLR 2004 which precedes any motion to dismiss than when considering a motion to dismiss pursuant to CPLR 3012 (subd [b]), whether or not countered by a motion for extension of time. (Cf. Barasch v Micucci, 49 NY2d 594.)

Nor can we say that it was error for the Appellate Division to accept the verified complaint in this case in lieu of an affidavit of merit. (See CPLR 105, subd [s].) Once the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof.

Fuchsberg, J.

(concurring). Although I join the result on this appeal, I write separately only because I believe it a mistake for the court to suggest that the plaintiffs’ CPLR 2004 motion for an extension of time to file their complaint had to be accompanied by an affidavit of merits or its equivalent.

Fair calculation indicates that in this case the service of the complaint, rejected by the defendant solely for untimeliness, was then but three days late. In opposing plaintiffs’ ensuing CPLR 2004 motion for an extension of time, defendant claimed no prejudice. To routinely insist on a showing of merits under such circumstances would be to impose an unwarranted burden for the curing of an unprejudicing departure.

An accelerated showing of merits is no small thing. This must be done on the affiants’ personal knowledge or, only as permitted in exceptional circumstance, by an acceptable secondary showing (4 Weinstein-Korn-Miller, NY Civ Prac, par 3216.22). Prematurely and before counsel may be fully prepared to do so, it commits the theory of one’s case in greater or lesser detail. Therefore, as every experienced and painstaking lawyer knows, the preparation of appropriate papers may call for an expenditure of professional time and energy akin to that ordinarily reserved, for instance, for such substantive stages of a litigation as a motion for summary judgment, discovery or even the ultimate trial (cf. Siegel, New York Practice, § 281, pp 337-338; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.09).

The imposition of such a stern obligation, no matter how semantically softened, is therefore a more appropriate condition for curing substantial defaults rather than the nonsubstantive, often courtesy-expecting, minor departures which most opposing counsel, sensitive to the practicalities of running a law practice, graciously allow each other as a matter of course. In the end, almost always, this serves reciprocal convenience. It also comports with the now long held liberal goal of the civil practice law and rules “to secure the just, speedy and inexpensive determination” (CPLR 104; see, also, CPLR 2001). As this case, wastefully wending its way all the way through our judicial hierarchy, so well illustrates, resort, instead, to hypertechnical punitive processes also impacts unfavorably on the desirable goal of judicial economy. Such adventures should not receive our encouragement, surely not in the absence of a more telling context. (See, generally, Farrell, Civil Practice, 32 Syracuse L Rev 75, 107.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchsberg concurs in a concurring opinion.

Order affirmed, etc.


text:
    American Home Assurance Co., Appellant, v Employers Mutual of Wausau, Respondent, et al., Defendants.
    Argued September 14,1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Stanley Wilkins and Lewis I. Wolf for appellant.

      William F. McNulty and Anthony J. McNulty for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (77 AD2d 421).

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


author: Per Curiam.

text:
    Ardsley Construction Co., Inc., et al., Appellants, v Port Authority of New York and New Jersey, Respondent.
    Argued September 10, 1981;
    decided October 15, 1981
    APPEARANCES OF COUNSEL

      Leonard Shabasson and Julius A Shapira for appellant.

      Arthur P. Berg, Patrick J. Falvey, Charles J. Maikish, SholemFriedman and Anne M. Tannenbaum for respondent.
   OPINION OF THE COURT

Per Curiam.

The determination made by the engineer of the Port Authority pursuant to the disputes provision of their contract is conclusive and forecloses appellants’ present claims for relief.

In 1965 appellants and the Port Authority entered into a contract for certain structural repairs on a vehicular viaduct known as Outerbridge Crossing. Subsequently, appellants subcontracted full responsibility for a portion of the work relating to the fabrication and installation of expansion dams to Fairmont Fabricators. Following completion of the job,, Fairmont through appellants made claims against the Port Authority for additional costs incurred as a result of the bridge being “out of square”, asserting essentially that the Port Authority plans incorrectly showed the bridge girders to which the newly manufactured replacement expansion dams were to be continuously welded to be straight, even and parallel with each other, which they were not, and that this circumstance resulted in cost overruns.

Pursuant to appellants’ contract with the Port Authority the claims were submitted to the Port Authority’s engineer for determination. In a written opinion the Port Authority’s engineer disallowed the claims after concluding that field conditions were what reasonably could be anticipated and that no contractor with any engineering sophistication could have expected to find an absolutely square condition.

Appellants then instituted the present action for damages. The claims asserted by appellants in this litigation fall within the broad scope of the contract provision: “The Engineer shall determine the amount, quality, acceptability and fitness of all parts of the materials and Work, shall interpret the Contract Drawings, Specifications, and any Extra Orders, and shall decide all other questions in connection with the Contract.” Applying then the standard of Tufano Contr. Cory, v Port of N. Y. Auth. (18 AD2d 1001, affd 13 NY2d 848) — that the decision of the engineer is conclusive and final as a matter of law unless it was infected by fraud, bad faith or palpable error — we note that no such infection was pleaded. Although appellants’ motion to conform the pleadings to the proof was granted by the trial court, no evidence was introduced sufficient to permit the jury to find fraud, bad faith or palpable error in the engineer’s decision. The assertion that neither the contract documents nor physical inspection of the bridge would have disclosed the “out of square” condition between the surface of the roadway and the underlying girders in no way undermines the conclusion of the engineer, based on his experience in such matters, that this condition was “what reasonably could be expected” by anyone “with any engineering sophistication whatever”. Similarly, proof that prior to execution of the contract the Operations Service Department of the Port Authority, which prepared the contract drawings, did not disclose this subsurface condition would not constitute fraud nor was it referrable to the individual engineer or to his decision with respect to the questions submitted to him by the parties pursuant to their agreement to do so. Accordingly, the present judicial proceeding was properly dismissed.

The parties and the courts below appear to have considered the Tufano standard applicable in this instance, and it would, therefore, be inappropriate for us now to invoke a different standard. Nevertheless we observe that the operative contract provision in Tufano was significantly different from that in the present case. In Tufano questions of law were expressly withheld from the engineer; the provision obviously contemplated his determination only within the range of quality of work performed (see, e.g., 10 NY Jur, Contracts, § 309). By contrast the authority conferred on the engineer in the disputes provision of the present contract contains no such reservation. Its arguable resemblance to the now familiar broad arbitration clause prompts us to note that we do not reach the question whether judicial review of the engineer’s decision should be under CPLR article 75 and decisional law applicable to arbitration generally or under the Tufano line of cases.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v Vino Green, Appellant.
    Argued September 11, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Russell A. Bikoff and Allen Alpert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As the People recognize, the provisions of CPL 380.50 apply to occasions of resentencing as well as to those of initial sentencing, and were accordingly applicable on January 8,1980 when this defendant was resentenced.

At the resentencing, three attorneys addressed the court on defendant’s behalf; the comment of one appears to have led to a reduction from the original sentence. At no time was there any request from any of these attorneys that defendant be afforded his statutory right to make a statement personally in his own behalf nor was the failure to comply with the statutory mandate in this regard otherwise brought to the court’s attention. In this circumstance the sentencing court’s error, which was not of constitutional dimension (see People v McClain, 35 NY2d 483) and which could so readily have been remedied had it then been invited to the court’s attention, was not preserved for appellate review.

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

Order affirmed in a memorandum.


text:
    Dorothy Maule, as Executrix of Hamilton (Tex) Maule, Deceased, Appellant, v NYM Corporation et al., Respondents.
    Argued September 14, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Alfred S. Julien, William D. Fireman and Sybil Shainwald for appellant.

      Howard M. Squadron, Neal M. Goldman, Ira Lee Sorkin and Slate R. Metcalf for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for a new trial.

The trial court refused defendant’s request to rule that plaintiff was a public figure. We agree with the Appellate Division that this was error and that, as a matter of law, plaintiff was a public figure. The critical consideration in this case is whether the evidence demonstrates that plaintiff had taken affirmative steps to attract personal attention or had strived to achieve a measure of public acclaim (James v Gannett Co., 40 NY2d 415, 422). Plaintiff’s candid admissions, briefly summarized, are telling. By his own estimation he was one of the best known writers at Sports Illustrated because he wrote about professional football, which he classified the most widely read feature of the magazine. He had been in the writing field since 1937, and had been a sports writer for Sports Illustrated from 1956 until 1975 — during which time he continuously had a by-line for his articles. He covered professional and college football, basketball, track and field, the Olympics and championship boxing. In 1959, 1963 and 1972 certain of his articles were republished in the compendium “Best Sports Stories of the Year”. He authored numerous works of fiction and nonfiction, including three editions of the history of professional football, a biography of former Green Bay Packer quarterback Bart Starr, and 10 novels for teen-agers about football and baseball. He testified that, all together, he has produced 28 books, one of which was selected for distribution by the Junior Literary Guild and another by the Reader’s Digest Condensed Book Club. He acknowledged that he was listed in both Who’s Who in the East and Who’s Who in America and that he had been a member of the Authors Guild and the Writer’s Guild of America. He stated that he had made numerous public appearances to speak on sports and had appeared many times on television, including the Today Show and half-time programs at football games. And he had received a number of awards for his books and stories. All of this came from plaintiff’s own lips.

On this evidence, the credibility of which plaintiff cannot claim is in issue, we conclude that the standard of James was met as a matter of law. The product of plaintiff’s craft — his books, articles and personal appearances— were obviously designed to project his name and personality before millions of readers of nationally distributed magazines and millions of television’s viewers and to establish his reputation as a leading authority on professional football. In short, plaintiff not only welcomed but actively sought publicity for his views and professional writing and by his own purposeful activities thrust himself into the public eye. He had become a public personality.

Because plaintiff was a public figure the liability, if any, of defendants would turn on whether it was determined that Treadwell made the statements with knowledge of their falsity or did so in reckless disregard of the truth (New York Times Co. v Sullivan, 376 US 254, 279-280; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379). The trial court did not charge this standard, applicable to defamation of public figures, and obviously the jury did not consider the case on this standard. In view of the trial court’s ruling that plaintiff was not a public figure, it would have been but a futile gesture to have mouthed a request for such a charge. The issue was preserved for our review by the express request for a ruling that plaintiff was a public figure, and the registration of further protest became unnecessary when the court denied that request.

Because, in consequence of the errors of law cited (and we pass on no other issues), the case was tried and decided under incorrect principles of law the case should be remitted to Supreme Court for a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuohsberg and Meyer concur.

Order reversed, with costs, and case remitted to Supreme Court, New York County, for a new trial in a memorandum.

       In view of our determination that plaintiff was a public figure as a matter of law, we have no occasion to consider or address the question whether a plaintiff’s status in an action for defamation should be determined by the court or by the jury or by both (see, e.g., Rosenblatt v Baer, 383 US 75, 88; Restatement, Torts 2d, § 619; Prosser, Torts [4th ed], § 115, p 796).


text:
    Arthur H. Rogoff, Appellant, v San Juan Racing Association, Inc., et al., Respondents, et al., Defendants.
    Argued September 15, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Robert Halpern for appellant.

      Stephen L. Fine for respondents.
   OPINION OF THE COURT

Memorandum.

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

At the threshold it is appellant’s contention that summary-judgment on the ground that his claims were barred by the Statute of Frauds was improperly granted because that defense had not been pleaded in the answer. Examination of the papers on the motion discloses, however, that this defense was the principal ground relied on by defendants in support of their motion and that it was fully opposed by plaintiff (both on the procedural grounds of unavailability for failure to plead and of prematurity for failure to have completed disclosure procedures, and extensively on the merits — that there were “14 written documents which collectively met the requirements of the statute,” that there had been full performance, and that the contract sued on was not subject to the statute). In this posture of the record we cannot say that it was error as a matter of law for the Appellate Division to have concluded, for the reasons stated by it, that failure expressly to have pleaded the defense in the answer did not mandate denial of defendant’s motion for summary judgment based on the statute.

Reaching the merits of the motion, then, we conclude, as did the Appellate Division, that there is not “in the record any writing or series of writings construed as a whole, which could even arguably satisfy [the] statutory requirement”.

We have examined appellant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Waghtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Robert Abrams, as Attorney-General of the State of New York, Respondent, v Meade H. Esposito, Appellant.
    Argued August 31, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Irwin Brownstein, James M. La Rossa, John W. Mitchell and Denise Lepicier for appellant.

      Robert Abrams, Attorney-General (Elliott S. Greenspan, Shirley Adelson Siegel and William F. Dowling of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (75 AD2d 528). Question certified answered in the affirmative.

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


text:
    Theresa Mullery, Individually and as Executrix of Michael Mullery, Deceased, Appellant, v Ro-Mill Construction Corp. et al., Respondents.
    Argued September 14, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Emilio Nunez and Pamela Anagnos Liapakis for appellant.

      William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for review of the facts (CPLR 5613). Under the charge given by the trial court the jury was instructed to determine whether the decedent was so intoxicated as to be rendered incapable of understanding or appreciating the danger which confronted him. In view of this charge, to which no exception was taken, and on the evidence adduced at trial, it cannot be said, as a matter of law, that the decedent was contributorily negligent.

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

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


text:
    John A. Smith, Appellant, v City of Troy, Respondent.
    Argued September 15, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      Jerome K. Frost for appellant.

      Domdd C. Bowes, Corporation Counsel (Donald J. Shanley of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion.

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


text:
    Martin B. Ashare, Appellant, v Mirkin, Barre, Saltzstein & Gordon, P. C., et al., Respondents.
    Decided October 15, 1981

      APPEARANCES OF COUNSEL

      Benjamin D. Russo for appellant.

      Harvey Weinberg for respondents.
   OPINION OF THE COURT

On summary consideration, order, insofar as appealed from, affirmed, with costs. We cannot say as a matter of law that the Appellate Division erred in deleting the award of punitive damages.

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


text:
    In the Matter of John Holbrook, Appellant, v State Insurance Fund et al., Respondents.
    Argued September 9, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      John Holbrook, appellant pro se.

      Robert Abrams, Attorney-General (Arlene R. Silverman and Shirley Adelson Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On review of the record here, we cannot say that respondents’ termination of petitioner was for “a constitutionally impermissible purpose or in violation of statutory proscription” (James v Board of Educ., 37 NY2d 891, 892). Moreover, the petitioner produced no evidence that the director of administration, the same officer who signed petitioner’s letter of appointment, was not authorized to sign his letter of termination.

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

Order affirmed, with costs, in a memorandum.


text:
    Mark R. Meckes, Individually and on Behalf of All Others Similarly Situated, Appellant, v Charles Cina, as Administrator of Local 55 UAW Area Wide Retirement Income Fund, et al., Respondents.
    Submitted September 14, 1981;
    decided October 15, 1981

      APPEARANCES OF COUNSEL

      James M. De Voy for appellant.

      Stuart M. Pohl for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Reid S. Mould at the Appellate Division (75 AD2d 470).

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


text:
    In the Matter of Virginia S. Barnum, as Executrix of T. Crouse Barnum, Deceased, et al., Appellants, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Respondent.
    Argued September 9, 1981; decided
    October 15, 1981

      APPEARANCES OF COUNSEL

      Franklin J. Schwarzer for appellants.

      David M. Garber, Corporation Counsel, and Donald A. Marshall, Special Counsel, for respondent.
   OPINION OF THE COURT

Memorandum.

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

The only issue properly before us on this appeal is whether the Appellate Division erred in increasing the “full value” of the property leased to K-Mart (and thus reducing the judgment for tax overpayments to which petitioners are entitled) to reflect the excess of the rents paid to K-Mart by its sublessees over the rents paid by K-Mart to petitioners for the subleased space.

Special Term used income capitalization as the basis for computation of full value. What is capitalized in such a computation is, of course, the rental income of the property, not the sales resulting from business conducted on the property (People ex rel. Hotel Paramount Corp. v Chambers, 298 NY 372, 375). However, in determining rental income both the fixed rent and the overage are to be included. Since petitioners’ lease with K-Mart required K-Mart to include in the overage base “gross rent received by Tenant from any part of the premises sublet to others”, it was proper to include (as the record shows was done) the sublessees’ rents paid to K-Mart in determining the overage which was part of the total rent received by petitioners.

That, however, does not end the inquiry. Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau (45 NY2d 538) recognizes that full value requires consideration of the interests of both landlord and tenant and, in an appropriate case, the addition of a leasehold bonus to the owner’s rental income in order to arrive at an appropriate base for capitalization. Special Term, though it used the subtenants’ rentals in computing overage pursuant to petitioners’ lease with K-Mart, added nothing for leasehold bonus. The Appellate Division properly concluded, the K-Mart lease with petitioners having been made in 1947 and containing no escalation provision, that the principle of the Merrick case warranted addition of a leasehold bonus to arrive at the capitalization base.

What bonus should be added in a particular case is a matter for expert testimony, predicated upon, among other things, the relationship between the space covered by the subleases and the entire space covered by the overlease, as well as the rentals required by, and other operative provisions of, each. The bonus finally adopted by the trier of fact may be less than, the same as or greater than the excess of a subtenant’s rents over overlease rents for the same space.

It was, however, petitioners’ burden to establish that the property was overvalued (Matter of Trinity Place Co. v Finance Administrator of City of N. Y., 74 AD2d 274, affd 51 NY2d 890; Matter of Manufacturers Hanover Trust Co. v Tax Comm, of City of N. Y., 31 AD2d 606, affd 28 NY2d 514). Petitioners introduced no evidence concerning what an appropriate bonus would be. Respondent’s expert, using one of K-Mart’s subleases as a comparable rent, testified to an adjusted rental price of $4.18 per square foot for the over-all space. Neither Special Term nor the Appellate Division accepted that proposed rental, but the Appellate Division did accept the concept that the subleases required an upward adjustment of the actual rental income received by petitioners, under the Merrick principle.

Whether as a matter of real estate appraisal the proper bonus to be added in valuing petitioners’ property is the entire excess of the sublease rentals over the rents for the same space paid petitioners by K-Mart is not the issue before us. The Appellate Division having increased Special Term’s finding of value, our function is to ascertain which value is in accord with the weight of the evidence (Grant Co. v Srogi, 52 NY2d 496, 511). We cannot say, on the record before us, that it was an error of law for the Appellate Division to have concluded, as it did, that the excess rent for the subleased space was an appropriate measure of the addition necessary to arrive at full value of the property (Matter of Trinity Place Co. v Finance Administrator of City of N. Y., 51 NY2d 890, supra).

The order of the Appellate Division should, therefore, be affirmed.

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

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Richard St. Clair, Respondent.
    Decided October 15, 1981

      APPEARANCES OF COUNSEL

      Sol Greenberg, District Attorney (George H. Barber of counsel), for appellant.

      Ian R. Arcus for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed for the reasons stated in the memorandum at the Appellate Division (80 AD2d 691).

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


text:
    In the Matter of Edson Rodriguez, Appellant, v Consolidated Edison Co. of New York, Inc., Respondent.
    Decided October 15, 1981
    APPEARANCES OF COUNSEL

      Arthur J. Israel for appellant.

      Ernest J. Williams and Barry J. Byrnes for respondent.
   OPINION OF THE COURT

Memorandum.

On summary consideration, the order of the Appellate Division should be affirmed, with costs.

The action of the arbitrator exceeded no limitation, either express or implied, in the arbitration provision of the collective bargaining agreement. Under its rule V(4) the arbitrator had the power and authority to adjudge “the sufficiency and reasonableness of the cause [for disciplinary action] stated by the Company”. If he found the cause “insufficient and unreasonable”, reinstatement to employment with back pay and benefits for the period of discharge was mandated. Contrary to petitioner’s assertion, however, the arbitrator in this instance made no such finding of exoneration; indeed, he concluded that petitioner’s conduct “warranted serious disciplinary action”. Absent the required predicate finding of insufficiency or unreasonableness, the mandate of rule V(4) requiring payment of back wages on reinstatement to employment never became applicable. The arbitrator was thus left free to fashion an appropriate remedy in accordance with the submission of the parties.

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

On summary consideration, order affirmed, with costs, in a memorandum.


text:
    Dushan R. Kosovich, Appellant, v Bosiljka Kosovich, Respondent.
    Decided October 15, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the Court of Appeals to review.” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582.)


text:
    The People of the State of New York, Respondent, v Thomas La Rocca, Appellant. The People of the State of New York, Respondent, v Thomas La Rocca, Appellant.
    Submitted September 28, 1981;
    decided October 15, 1981
   Motions for reargument dismissed upon the ground they are not timely made. (22 NYCRR 500.9 [b].) [See 28 NY2d 545, 37 NY2d 927.]


text:
    Arthur Puro, Appellant, v Jacob Puro et al., Respondents.
    Submitted September 28, 1981;
    decided October 15, 1981
   Motion to modify stay denied.


text:
    Samuel Rosenbaum et al., Appellants, v Lefrak Corp., Respondent, and Arthur Zwicker, Doing Business as Zwicker Electrical Co., et al., Appellants. Lefrak Construction Corp., Third-Party Plaintiff-Respondent, v Zaretsky Store Front Company, Inc., Third-Party Defendant-Appellant.
    Decided October 15, 1981
   Appeal taken by plaintiffs Samuel and Esther Rosenbaum dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation filed by plaintiffs is not a stipulation for judgment absolute within the meaning of CPLR 5601 (subd [c]) (see Cohen and Karger, Powers of the New York Court of Appeals, § 62, pp 279-280).

Appeals taken by defendant Zwicker and third-party defendant Zaretsky dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 14).


text:
    In the Matter of Sovereign Apartments, Inc., et al., Appellants, v New York City Rent Conciliation and Appeals Board et al., Respondents. Bernard Sennet, Individually and on Behalf of Other Tenants of Sovereign Apartments, Inc., Similarly Situated, Intervenor-Respondent.
    Submitted August 31, 1981;
    decided October 15, 1981
   Motion to dismiss appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent is not in favor of the appellants (CPLR 5601, subd [a], par [i]).


text:
    The People of the State of New York, Respondent, v Hector Vazquez, Appellant.
    Submitted October 5, 1981;
    decided October 15, 1981
   Motion to reinstate appeal treated as motion for reconsideration of this court’s decision and order dated September 10, 1981, and, as such, motion denied. [See 54 NY2d 789.]


text:
    In the Matter of General Motors Corporation, Fisher Body Division, Respondent, v State Human Rights Appeal Board, Respondent, and State Division of Human Rights, Appellant.
    Argued September 16, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Sara Toll East and Ann Thacher Anderson for appellant. James A. Spitz, Jr., and Richard N. Chapman for petitioner-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (78 AD2d 1006).

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


text:
    Brooklyn Overall Export Company, Ltd., et al., Respondents, v Amerford International Corporation, Appellant.
    Decided October 20, 1981

      APPEARANCES OF COUNSEL

      Armand Maurice Pare, Jr., for appellant.

      Gary B. Berns for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The record supports the affirmed finding that the parties agreed that the goods were not to be released to the buyer without payment. On that premise, we affirm for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of Altona Citizens Committee, Incorporated, et al., Appellants, v Town of Altona et al., Respondents.
    Argued September 10, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Thomas S. West for appellants.

      Robert Abrams, Attorney-General (Franklin K. Breselor and Shirley Adelson Siegel of counsel), for William C. Hennessy, as Commissioner of the Department of Transportation of the State of New York and others, respondents.

      Brian Buddington Turner for Turtle Island Trust, respondent.

      Robert T. Coulter, of the District of Columbia Bar, admitted on motion pro hac vice, and Nancy Stearns for Ganienkeh, respondent.
   OPINION OF THE COURT

Memorandum.

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

The land now occupied by the Ganienkeh group, whose members are assertedly descendants of the Mohawk Indian Nation, was originally conveyed to the State by the William H. Miner Foundation in 1962. The deed provided that the conveyance of the Miner Lake property was made pursuant to an order of Supreme Court, which, in turn, authorized the conveyance “to the People of the State of New York for campsites, recreational, conservation or other public purposes”. In 1977, following the takeover of other lands at Moss Lake by the Ganienkeh group, the State leased the Miner Lake property to the Turtle Island Trust, a nonprofit charitable and educational trust which had been established to help preserve and protect Indians and their traditional way of life. Thereafter, the Ganienkeh group moved from the property they were originally occupying to the land leased by the trust.

Petitioners contend, among other things, that the lease to the trust is invalid because it contravenes the order of Supreme Court approving the transfer of the property from the foundation to the State, assertedly because the land is not being used for a “public purpose” within the meaning of the order. The lease to the Turtle Island Trust provides, however, that the land is to be used to preserve native American culture, to educate Indians, to promote racial and cultural harmony and to relieve poverty among North American Indians. Significantly, the lease also requires the lessee to maintain a cultural and educational center focused on the traditional Mohawk way of life which is to be open to the public. Under these circumstances, it cannot be said that the State, in entering into this lease, failed to devote the property to a public purpose. The question whether the terms of the lease itself were fulfilled was not raised in the petition and is thus inappropriate for review. Additionally, in light of our disposition of the “public purpose” issue, it is unnecessary to address the conclusion of the Appellate Division that the public purpose required here could also be found in the settlement of the Ganienkeh dispute.

We also find no merit to petitioners’ contention that the lease violates the provisions of the Park and Recreation Land Acquisition Bond Act (L 1960, ch 522), which authorizes the expenditure of State moneys to acquire lands for conservation and outdoor recreation. The petition contains no allegation that the land is subject to the provisions of the bond act, and as the Appellate Division noted, the property was gratuitously conveyed to the State by the Miner Foundation, and no bond act funds were used -to acquire the property. The description of the premises being conveyed under the Miner deed by reference to a map prepared in connection with acquisition under the bond act did not operate to place such premises under the restrictions of the act.

Finally, we conclude that it is unnecessary to reach the issue whether the Ganienkeh group is entitled to sovereign immunity as part of the Mohawk Nation.

We have considered petitioners’ remaining contentions and find them either inappropriate for review or without merit.

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

Order affirmed, with costs, in a memorandum.


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    Town of Brookhaven, as Substituted for New York State Environmental Facilities Corp., Petitioner, v John Dinos et al., Respondents, and Lubmos Realty Corp., Appellant. (And Another Proceeding.)
    Submitted September 16, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Michael R. Martone for appellant.

      Edward J. Ledogar for Albert Nusbaum and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Leon D. Lazer at the Appellate Division (76 AD2d 555).

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


text:
    The People of the State of New York, Respondent, v Carlos Colon, Appellant.
    Argued September 17,1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Barry Stendig, William E. Hellerstein and Susan Slovak for appellant.

      Eugene Gold, District Attorney (Jane S. Meyers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant urges that his conviction of criminal possession of a weapon in the second degree (Penal Law, § 265.03) should be reversed because the trial court charged the jury without more that “it is a fundamental rule of evidence that a person is presumed to intend the natural consequences of his acts” (cf. Sandstrom v Montana, 442 US 510). We do not reach his contention that this charge was erroneous inasmuch as the issue has not been preserved for our review (People v Thomas, 50 NY2d 467).

When the charge of which appellant now complains was included in the instructions given to the jury at the close of the trial, no protest was registered. After the jurors had deliberated for about two hours they returned, requesting further instructions including definitions of “reasonable doubt” and “intent”. In response to this request the court repeated the challenged charge with respect to presumed intent. This time defense counsel did engage in a colloquy with the court concerning the supplemental charge to the jurors. He predicated his comments on the stated assumption (in fact inaccurate) that the trial court had charged them “that [the] presumption can be overcome by evidence to the contrary”. Based on that expressed assumption counsel’s request was for a charge that “In this case it has been overcome”, in effect a ruling that the presumption had been overcome as a matter of law, thus taking it out of the case. The Trial Judge so interpreted his request — “You want me to tell the jury that the presumption, a man is presumed to intend [the] natural consequences of an act as a matter of law [is] overcome?” — and denied the request.

Appellant now presses the argument that in fact there had been no instructions with respect to overcoming the presumption and that such omission constituted reversible error. No protest, however, was registered to this asserted error at any time. It was defense counsel who advanced the inaccurate assumption that instructions with reference to overcoming the presumption had been included. He premised his request to charge on that assumption, and the trial court denied the request on the same hypothesis. Instead of inviting the court’s attention to the omission to charge with respect to overcoming the presumption, defense counsel in effect assured the court that there had been no such omission.

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

Order affirmed in a memorandum:


text:
    Teviro Casuals, Inc., Appellant, v American Home Assurance Company, Respondent.

      Decided October 20, 1981

      APPEARANCES OF COUNSEL

      Frank A. Weg for appellant.

      Roberta Burrmn for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (81 AD2d 814). Appellant failed to adduce any evidence, aside from its inventory computations, that it sustained any loss. Inasmuch as the exclusionary clause in the policy expressly provides that the policy does not cover losses the existence of which are proved solely by inventory computations, appellant failed to prove a prima facie case.

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


text:
    Craig Pattengell, an Infant, by his Mother and Natural Guardian, Catherine Van Tassell, et al., Appellants, v Robert Welsh, an Infant, by his Mother and Natural Guardian, Lynn R. Welsh, et al., Defendants, and American Consumer Insurance Co., Respondent.
    Decided October 20, 1981

      APPEARANCES OF COUNSEL

      Judith L. Lubinsky for appellants.

      Allen Wooster for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate

Division.

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


text:
    In the Matter of Salvatore J. Scotto, Appellant, v Board of Trustees of the Police Pension Fund of the City of New York, Article II, Respondent.
    Argued September 15,1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Beatrice H. Salten-Smith and Charles Haydon for appellant.

      Allen G. Schwartz, Corporation Counsel (Marjorie E. Bornes and Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Given the expertness developed through the respondent board of trustees’ repeated exposure to the weighing of conflicting diagnostic medical judgments in its specialized area of decision-making (cf. Matter of Currie v Town of Davenport, 37 NY2d 472, 476), as well as the evaluation submitted to it by its medical board on the basis of the latter’s review of both petitioner’s medical record and the results of its prior examination of the petitioner himself, it cannot be said as a , matter of law that there was insufficient support for the respondent’s denial of the application for an accidental disability pension.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of CBS, Inc., Respondent, v State Human Rights Appeal Board, Respondent, and James Lieu, Appellant.
    Argued September 16,1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Lawrence M. Monat for appellant.

      Jerry Slater and Ronald E. Guttman for respondent.
   OPINION OF THE COURT

Memorandum.

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

On the record the no probable cause decision of the Division of Human Rights was not arbitrary or capricious. Furthermore, it cannot be said that the procedure followed at the division’s investigation conferences, involving written and oral presentations,, constituted either a violation of the statutory scheme (Executive Law, § 297, subd 2; § 297-a, subd 7) or the deprivation of a constitutional right. Due process does not require all the accoutrements of an adversarial trial at every stage of an administrative proceeding (see Friendly, Some Kind of Hearing, 123 U of Pa L Rev 1267).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Louis P. Albenga, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York, et al., Respondents.
    Decided October 20, 1981

      APPEARANCES OF COUNSEL

      Richard A. Dienst for appellant.

      Allen G. Schwartz, Corporation Counsel (Marjorie E. Bornes of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (80 AD2d 813; see, also, Matter of Scotto v Board of Trustees of Police Pension Fund of City of N. Y., Art. II, 54 NY2d 918 [decided herewith]).

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


text:
    Nassau Chapter, Civil Service Employees Association, Inc., Appellant, v County of Nassau, Respondent.
    Argued September 8, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Barry J. Peek and Richard M. Gaba for appellant.

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 563).

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


text:
    Charles Cromer et al., Appellants, v County of Nassau, Respondent.
    Argued September 8, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Barry J. Peek and Richard M. Gaba for appellants.

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with this memorandum.

We agree with the Appellate Division that the action was not time-barred. The court, however, improperly determined that individuals formerly employed by the County of Nassau in positions funded under the Emergency Employment Act of 1971 (formerly US Code, tit 42, § 4871 et seq., currently codified at US Code, tit 29, § 841 et seq.) as a matter of law did not commence county service until they secured civil service appointment for purposes of placement in the incremental salary plan under the collective bargaining agreement. Given the finding of an employment relationship between the county and the workers in the Federally funded positions, the support in the record for that finding and the language of the collective bargaining agreement, there is no basis for denying these workers credit for their EEA experience in determining their salaries under the agreement (Nassau Ch., Civ. Serv. Employee Assn. v County of Nassau, 53 NY2d 559). Inasmuch as the Appellate Division determination is stated to be on the law, it is necessary to remit to that court for a review of the facts (CPLR 5613).

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg and Meyer concur in memorandum; Judges Jasen and Gabrielli dissent and vote to affirm for reasons stated in the memorandum at the Appellate Division (77 AD2d 610).

Order reversed, etc.


text:
    In the Matter of Eden Park Health Services, Inc., et al., Appellants, v Robert P. Whalen, as Commissioner of Health of the State of New York, Respondent.
    Argued September 15, 1981;
    decided October 20, 1981

      APPEARANCES OF COUNSEL

      Jeffrey E. Stockholm and Mark W. Hoffman for appellants.

      Robert Abrams, Attorney-General (Lawrence J. Logan and Shirley Adelson Siegel of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 673).

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


text:
    The People of the State of New York ex rel. Alan Weiner, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, et al., Respondents.
    Argued September 10, 1981;
    decided October 20, 1981
   Appeal dismissed, without costs, upon the ground that relator, having been released on parole, is not entitled to a writ of habeas corpus (CPLR 7002, subd [a]; People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    In the Matter of Aurora Corporation of Illinois, Appellant, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
    Decided October 20, 1981.
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    Michael Goot, an Infant, by Edward Goot, His Parent, et al., Appellants, v Board of Education of Waterford Halfmoon High School, Respondent.
    Submitted October 12,1981;
    decided October 20, 1981
   Motion to vacate the Court of Appeals order of dismissal dated September 16, 1981 denied. [See 54 NY2d 833.]


text:
    In the Matter of the Arbitration between I.J.S. Fabrics, Inc., Appellant, and Dan River, Inc., Respondent.
    Submitted October 5, 1981;
    decided October 20, 1981
   Motion for a stay granted to the extent that, while arbitration may proceed, announcement of any arbitration award is stayed pending determination of the appeal herein.


text:
    In the Matter of Karl E. Felsen, Respondent, v George P. Scaringe et al., Constituting the Albany County Board of Elections, Respondents, and Kevin A. Moss et al., Appellants.
    Argued October 20, 1981;
    decided October 21, 1981

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellants.

      Paul M. Whitaker for petitioner-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition to invalidate the nominating petition should be denied.

Respondents’ nominating petition included the names of three persons for appointment to a committee to fill vacancies, as is required by law (Election Law, § 6-140, subd 1). Two of the named appointees, however, did not register as voters in the Town of Guilderland, the pertinent political unit, until, respectively, one day and one week after the first day that petitions could be circulated. Having registered in time for the election, they nonetheless qualified as “registered voters within such political unit” for the purposes of the statute (see Matter of Naples v Carr, 29 Misc 2d 944, affd 14 AD2d 828, affd 10 NY2d 85(1 [applying former section 138 of the Election Law, the predecessor to section 6-140]). In any event, on oral argument it was undisputed that no signatures were actually collected before the appointees registered to vote, and the statute certainly imposes no requirement that registration occur before then.

The objection that the petition does not clearly delineate the offices is without merit. The defect alleged describes at worst only a deviation from form, but not from the statutorily prescribed substance (see Election Law, § 6-140). As such, substantial compliance with the statute is sufficient (cf. Matter of Hutson v Bass, 54 NY2d 772; Matter of Ryan v Board of Elections of City of N. Y., 53 NY2d 515; Matter of Alamo v Black, 51 NY2d 716). As all the information necessary to identify clearly the offices involved is included on the face of the petition, such requirement has been met.

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

Order reversed, etc.


text:
    In the Matter of William F. Sheehan et al., Appellants, v William Aylward et al., Respondents.
    Argued October 20, 1981;
    decided October 21, 1981

      APPEARANCES OF COUNSEL

      Thomas J. Spargo for appellants.

      Thomas A. Breslin for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as is appealed from, should be affirmed, without costs.

We agree with the court below that the failure to include a separate column in which the signers could indicate their town did not render the nominating petitions invalid with respect to the judicial candidates. Inasmuch as each signer listed his present address under the column headed “Town of Guilderland Residence”, all of the information required by subdivision 1 of section 6-130 of the Election Law appeared on the petitions. The failure to include a separate column in which the signers individually could list their town is, in our view, merely a deviation from the statutorily recommended form of the petition, not its prescribed content. As such, strict compliance with the requirements of the Election Law is not mandated. (Election Law, § 6-140, subd 1; see Matter of Ryan v Board of Elections of City of N. Y., 53 NY2d 515; Matter of Hutson v Bass, 54 NY2d 772; Matter of Alamo v Black, 51 NY2d 716.)

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

Order, insofar as appealed from, affirmed, without costs, in a memorandum.


text:
    In the Matter of the Arbitration between Avrom R. Vann, Appellant, and Kreindler, Relkin & Goldberg, Respondent. Avrom R. Vann, Appellant, v Kreindler, Relkin & Goldberg et al., Respondents.
    Argued August 31, 1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Kurt J. Wolff for appellant.

      Donald L. Kreindler and Jeffrey S. Kaplan for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff signed a partnership agreement with the law firm of Kreindler, Relkin, Olick & Goldberg in December, 1972. That agreement contained a clause requiring the submission to arbitration of any controversy arising out of or relating to the agreement. Plaintiff Ti'ow seeks to stay arbitration of his claim against the successor firm of Kreindler, Relkin & Goldberg for an accounting and damages.

It is true that the original partnership dissolved upon Olick’s withdrawal in 1974 (see Partnership Law, § 60) and no written agreement was executed by the new partnership’s members up to the time that plaintiff departed in 1979. The Appellate Division found, however, that the members of the successor firm treated the 1972 agreement as binding and continuing in effect. This conclusion is amply supported by the record.

It is undisputed that the 1972 agreement contained a broad and unequivocal arbitration provision. By treating that agreement as continuing in force after the dissolution of the original partnership, the members of the successor partnership demonstrated their intention to be governed by that agreement’s arbitration clause (see Matter of LevinTownsend Computer Corp. v Holland, 29 AD2d 925; Alpert v Bannon, 40 AD2d 988; see, generally, 8 Weinstein-Korn-Miller, NY Civ Prac, par 7501.40). Since the parties agreed to arbitration, it follows that all further issues concerning plaintiff’s claim are for the arbitrator to resolve.

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

Order affirmed, with costs, in a memorandum.


text:
    Pasqualina Autera et al., Respondents, v Arlen Realty & Development Corp., Doing Business as Korvettes, Respondent, and Midtown Neon Sign Corp., Appellant.
    Argued September 9, 1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Ignatius John Melito, J. Robert Morris, L. Kevin Sheridan and Steven Di Joseph for appellant.
    ■ Bert W. Subin and Sally Weinraub for plaintiff-respondent.

      Marc E. Richards and Alan M. Rubin for defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the cross complaint dismissed, with costs.

The record developed at trial reveals no evidence connecting defendant Midtown Neon Sign Corp. with the accident. Under the indemnification clause in the service contract between defendant Arlen Realty & Development Corp., doing business as Korvettes, and Midtown, the latter only agreed to assume “the entire responsibility and liability for any and all injury or death of any and all persons * * * caused by or resulting from or arising out of any act or omission on the part of the Contractor or in connection with [the] contract or of the prosecution of the work [thereunder] .” Although Midtown thus undertook a rather broad obligation to save Korvettes harmless from liability, it did not agree to become an insurer against all liability arising out of accidents involving the sign, whatever the cause.

The maintenance contract obligated Midtown to “provide all the required labor, material and appurtenances to satisfactorily maintain signs” at specified locations. The testimony at trial showed that Midtown assumed no obligation to inspect the sign but only to respond to service calls from Korvettes. While Midtown did service some electrical components of the sign, there was no evidence that Midtown serviced or was requested to service the block letter that fell from the sigñ and produced the injuries for which recovery was sought. The record is barren of any evidence that Midtown breached a duty owed to Korvettes under the maintenance agreement or that the accident arose in connection with the work performed under the contract (see Lopez v Consolidated Edison Co. of N. Y., 40 NY2d 605; cf. Margolin v New York Life Ins. Co., 32 NY2d 149). The cross complaint against Midtown, therefore, should have been dismissed in its entirety. Since Midtown, the only party appealing here, has obtained full relief by the dismissal of the cross complaint, we need not and do not consider the issues raised with respect to the judgment in favor of plaintiffs against defendant Arlen Realty.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Ronald Clark, Appellant. The People of the State of New York, Respondent, v Walter Wilson, Appellant.
    Argued September 11, 1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for Ronald Clark, appellant.

      Martin Jay Siegel and Sol E. Schwartzberg for Walter Wilson, appellant.

      Robert M. Morgenthau, District Attorney (David H. Steiner and Allen Alpert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

We cannot say as a matter of law that the record before the suppression court, including the minutes of the in camera examination of the confidential informant, did not provide a sufficient basis on which to find that the arresting officer had probable cause for the warrantless arrest of defendants. The record reveals the basis of the informant’s knowledge by detailing "how the informant acquired personal knowledge, and shows that this information was disclosed to the officer prior to the arrest (see People v Elwell, 50 NY2d 231, 236). Insofar as the in camera minutes were part of the record from the court in which judgment was entered, they would properly be included in the appellate record. The denial of defendants’ motion at the Appellate Division must therefore be construed as denying only defendants’ access to those minutes.

It is noted additionally that the suppression court adequately complied with the procedures specified in People v Darden (34 NY2d 177) for maintaining the informant’s confidentiality during a pretrial challenge to the probable cause supporting police conduct. The court’s opinion denying suppression referred to information disclosed during the in camera examination without revealing the identity of the informant. Defendants were specifically afforded the opportunity to submit questions for the court to ask the informant. Defendant Clark first submitted questions and requested a summary months after the in camera examination and while the court had the matter under consideration for decision. Defendant Wilson never submitted proposed questions or requested a Darden summary. Having charted their own course under Darden, defendants may not now be heard to complain that they did not have access to the minutes.

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

In each case: Order affirmed in a memorandum.


text:
    Robert Depo et al., Appellants, v Marine Midland Bank, Respondent.
    Decided October 22, 1981

      APPEARANCES OF COUNSEL

      William R. Morgan for appellants.

      Richard W. Cook for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. In upholding the preclusion order, the Appellate Division did not abuse its discretion as a matter of law. Accordingly, the motion for summary judgment was properly granted.

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


text:
    Randi Zinz-Barta, Respondent, v Thomas T. Barta, Appellant.
    Decided October 22, 1981
    APPEARANCES OF COUNSEL

      Charles E. Steinberg for appellant.

      David Jaroslawicz for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. On the facts of this case, it appears that the trial court properly imposed a constructive trust for the benefit of the plaintiff to the extent of one-half interest in the co-operative apartment held in the defendant’s name. Furthermore, it cannot be said that the trial court abused its discretion in making an award of alimony in the amount of $250 per week to the plaintiff.

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


text:
    In the Matter of William Sinnott et al., Respondents, v Thomas M. Monahan et al., Constituting the Board of Elections of the County of Rensselaer, Respondents. In the Matter of Romeo Naples, Appellant, v Henry G. Tutunjian et al., Constituting the Board of Elections of Rensselaer County, Respondents.
    Argued October 21, 1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Thomas V. Kenney for appellant.

      David L. Gruenberg for petitioners-respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    Board of Education of the Three Village Central Schools of the Towns of Brookhaven and Smithtown, Appellant, v Three Village Teachers’ Association, Inc., Respondent.
    Decided October 22, 1981

      APPEARANCES OF COUNSEL

      Kevin Seaman for appellant.

      James R. Sandner and John J. Naun for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

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


text:
    In the Matter of James W. De Palo et al., Doing Business as De Palo’s Dugout, Respondents, v New York State Liquor Authority, Appellant.
    Decided October 22, 1981

      APPEARANCES OF COUNSEL

      Warren B. Pesetsky for appellant.

      Peter Campbell Brown for respondents.
   OPINION OF THE COURT

On summary consideration, judgment affirmed, with costs, for reasons stated in the memorandum at the Appellate Division.

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


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Joseph Servidio, Appellant.
    Argued September 17,1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Anna M. Perry and John F. Middlemiss, Jr., for appellant.

      Patrick Henry, District Attorney (Maureen S. Hoerger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant acknowledges that the officer who questioned defendant was not aware of the unrelated charge then pending against him and on which he was represented by counsel. Unlike the situation in People v Smith (54 NY2d 954 [decided herewith]), there was, therefore, no basis for inferring knowledge of the prior representation from knowledge that there were unrelated charges pending. Nor in view of the minor nature of the charge (unauthorized use of a motor vehicle and resisting arrest) can it be said that the police deliberately overlooked the obvious or insulated the interrogating officers from actual knowledge of the pending unrelated charges, even though they were pending within the same county and presumably the same department, and were but two and one-half months old (cf. People v Kazmarick, 52 NY2d 323; see People v Bartolomeo, 53 NY2d 225).

Gabrielli, J.

(concurring). I, too, am to affirm the order of the Appellate Division sustaining the defendant’s conviction on his plea of guilty, and I do so for all the reasons stated by Justice James D. Hopkins at the Appellate Division.

Additionally, I would note that we are presented with an affirmed finding of fact that the interrogating officer was not aware of the existence of any unrelated charges against the defendant. Indeed, as stated by the majority, “[t]he defendant acknowledges that the officer who questioned the defendant was not aware of the unrelated charge then pending against him and on which he was represented by counsel”. By itself, it is sufficient to mandate an affirmance, and reference to what is termed inferred knowledge (which is but another way of saying “constructive knowledge”) is unnecessary.

I would but add that any reference to the inferred or constructive knowledge theory mentioned by the majority runs counter to the position taken by the dissenters in People v Smith (54 NY2d 954 [decided herewith]). Indeed, we indorse what Justice Hopkins stated in writing for an unanimous court at the Appellate Division (77 AD2d 191, 197) in the case now before us: “In short, we think that in accordance with the precept stated in People v Pinzon (44 NY2d 458, 464, supra), we should focus on whether the police actually had knowledge of the representation of the defendant by counsel — ‘ [w]hat is required must always be considered in light of what is practical under the circumstances’. The balance between the rights of the individual and the responsibilities of the State will be fairly maintained if actual knowledge, not constructive knowledge, is the ingredient of the rule forbidding the interrogation of a suspect when he is represented by counsel on unrelated charges unknown to the police. This does not mean that the police may act by subterfuge to conceal such knowledge, or to overlook the obvious. Equally, it means that the police undertaking the questioning must be possessed with the knowledge of the prior representation”.

Chief Judge Cooke and Judges Jones, Fuchsberg and Meyer concur; Judge Jasen concurs for the reasons stated in the opinion by Justice James D. Hopkins at the Appellate Division (77 AD2d 191); Judge Gabrielli concurs in a concurring opinion in which Judge Wachtler concurs.

Order affirmed in a memorandum.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Ronald C. Smith, Appellant.
    Argued September 17, 1981;
    decided October 22, 1981

      APPEARANCES OF COUNSEL

      Joseph A. Shifflett, Rose H. Sconiers and Joseph B. Mistrett for appellant.

      Edward C. Cosgrove, District Attorney (John J. De Franks and Timothy R. Harvey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the statements obtained from defendant suppressed, and a new trial granted.

There is no question that the officer who questioned defendant knew that defendant had been arrested eight months earlier on a sodomy charge by the same police department. Indeed the officer testified that he assumed that defendant had an attorney on that charge. Since he had actual notice, the officer was “under an obligation to inquire whether defendant was represented by an attorney” on the earlier charge (People v Bartolomeo, 53 NY2d 225, 232; see People v Ramos, 40 NY2d 610, 617-618).

There is, however, no basis for suppression of the evidence obtained from the vehicle used by defendant. There is an affirmed finding of consent of the registered owner, the woman with whom defendant was then living. The fact that she was told the police had a search warrant (later found in validly issued) before she said “it wouldn’t be necessary, that she would cooperate and [the police] could look at the car, to do anything we want to do” does not mandate a finding that she was simply acquiescing to the execution of the warrant rather than consenting to the search.

Wachtler, J.

(dissenting). Since the rule just recently announced in People v Bartolomeo (53 NY2d 225) is now being extended, I am compelled to dissent.

The defendant murdered a young woman and several days later was arrested and admitted hitting the victim after an argument. The confession was voluntary and was made only after the defendant had been advised of his rights and waived them.

If this had been the defendant’s first encounter with the law he would have no cause for complaint regarding the police questioning. But because the defendant committed the murder while he was awaiting disposition on another indictment charging him with sodomy he claims the special protection of a defendant with a record (see People v Bartolomeo, supra). In Bartolomeo, however, the court emphasized that the defendant had been arrested on an arson charge seven days earlier so that it was virtually certain that the charge was still outstanding. Here, however, the charge was eight months old and although it may be “assumed”, as the police did in this case, that the defendant had been represented by counsel on the charge, it is far from certain that the charge would still be outstanding at the time he was questioned for the murder. Indeed, the police officer testified that he did not know the status of the prior charge.

The rule prohibiting the police from questioning the defendant in the absence of counsel when the police are obviously aware that the defendant has an attorney should not be extended to situations where mere knowledge of the existence of some prior charge can be said to give rise to a series of possibilities or probabilities of various degrees, that the charge may still be outstanding, that the defendant was represented by counsel in the past, and that an attorney may still be representing him. Under such an approach a repeat offender or professional criminal will be immune indefinitely from police questioning because with creative hindsight it may be shown that there was some possibility that one of his prior charges was still outstanding.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Fuchsberg and Meyer concur; Judge Jasen concurs on constraint of People v Bartolomeo (53 NY2d 225); Judge Wachtler dissents and, votes to affirm in an opinion in which Judge GabRIELLI concurs.

Order reversed, defendant’s statements suppressed and a new trial ordered in a memorandum.