text:
    The People of the State of New York, Respondent, v Carlos Alamo Hernandez, Appellant.
    Decided July 7, 1992

      APPEARANCES OF COUNSEL

      Barry Stendig and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Allen H. Saperstein and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the People exercised their peremptory challenges in a racially discriminatory manner is baseless (see, Batson v Kentucky, 476 US 79). The courts below properly concluded that defendant failed to make out a prima facie showing that the prosecution purposefully excluded members of his race from the jury (id., at 96; see, People v Bolling, 79 NY2d 317).

We have examined defendant’s remaining contentions and find them to be either unpreserved or without merit.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Rudolph Hawthorne, Appellant.
    Decided July 7, 1992

      APPEARANCES OF COUNSEL

      Eve Kessler and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney (Emil Bricker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be modified by remitting to Supreme Court, Queens County, for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Defendant — pointing to the fact that the prosecutor peremptorily challenged four of the six African-American members of the venire — contends that he has made a prima facie showing that the prosecution exercised its peremptory challenges in a racially discriminatory manner, and that the burden therefore shifted to the prosecution to come forward with racially neutral reasons for the strikes (see, Batson v Kentucky, 476 US 79, 96; People v Bolling, 79 NY2d 317). We agree. However, because the prosecutor was not asked to provide a racially neutral reason for one of the challenged jurors in question, we remit the case to the Supreme Court, Queens County, for a hearing to afford the People an opportunity to provide a racially neutral reason for the exercise of that strike. Should satisfactory explanation be provided by the People, the judgment of conviction should be amended to show that result. Otherwise, the judgment of conviction should be vacated and a new trial ordered.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Ramona Santorelli and Mary Lou Schloss, Appellants, et al., Defendants.
    Argued May 5,1992;
    decided July 7, 1992
    APPEARANCES OF COUNSEL

      Herald Price Fahringer and Diarmuid White for Ramona Santorelli, appellant.

      Donald W. O’Brien, Jr., for Mary Lou Schloss, appellant.

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Monroe County Court should be reversed and the informations dismissed.

Defendants’ claim that Penal Law § 245.01 offends the Equal Protection Clauses of the Federal and State Constitutions was expressly passed upon by County Court, and its disposition of that claim was a necessary basis for its order of reversal of the Rochester City Court which had dismissed the informations (see, People v Craft, 149 Misc 2d 223 [Monroe County Ct]; People v Craft, 134 Misc 2d 121 [Rochester City Ct]). We, therefore, reject the People’s argument that under CPL 470.35 (2) (a) the Court of Appeals lacks jurisdiction to pass upon that claim.

Defendants were arrested for violating Penal Law § 245.01 (exposure of a person) when they bared "that portion of the breast which is below the top of the areola” in a Rochester public park. The statute, they urge, is discriminatory on its face since it defines "private or intimate parts” of a woman’s but not a man’s body as including a specific part of the breast. That assertion being made, it is settled that the People then have the burden of proving that there is an important government interest at stake and that the gender classification is substantially related to that interest (see, Mississippi Univ. for Women v Hogan, 458 US 718, 725). In this case, however, the People have made no attempt below and make none before us to demonstrate that the statute’s discriminatory effect serves an important governmental interest or that the classification is based on a reasoned predicate. Moreover, the People do not dispute that New York is one of only two States which criminalizes the mere exposure by a woman in a public place of a specific part of her breast.

Despite the People’s virtual default on the constitutional issue, we must construe a statute, which enjoys a presumption of constitutionality, to uphold its constitutionality if a rational basis can be found to do so (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [c]; People v Price, 33 NY2d 831 [defendant’s equal protection claim not addressed because statute was construed to not apply]; Childs v Childs, 69 AD2d 406, 418-421).

Penal Law § 245.01, when originally enacted (L 1967, ch 367, § 1), "was aimed at discouraging 'topless’ waitresses and their promoters (see, Practice Commentary by Denzer and McQuillan, McKinney’s Cons. Laws of N. Y., Book 39, Penal Law, § 245.01, p. 200)” (People v Price, 33 NY2d 831, 832, supra). Considering the statute’s provenance, we held in Price that a woman walking along a street wearing a fishnet, see-through pull-over blouse did not transgress the statute and that it "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged” (id., at 832). Though the statute and the rationale for that decision are different, we believe that the underlying principle of People v Price (supra) should be followed. We, therefore, conclude that Penal Law §245.01 is not applicable to the conduct presented in these circumstances and that the City Court was correct in dismissing the informations.

Titone, J.

(concurring). Citing the maxim that wherever possible statutes should be construed so as to sustain their constitutionality (see, e.g., Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143), the Court bypasses appellants’ equal protection argument by holding that Penal Law § 245.01 simply does not apply "in these circumstances.” That maxim is unhelpful here, however, since both the language and the history of Penal Law § 245.01 demonstrate quite clearly that the conduct with which appellants were charged is precisely the type of behavior that the Legislature intended to outlaw when it enacted Penal Law § 245.01. Thus, appellants’ constitutional equal protection claim cannot be avoided and the only relevant legal maxim is the one that demands proof by the State that a classification based on gender be substantially related to the achievement of an important governmental objective (e.g., Caban v Mohammed, 441 US 380, 388, 393; People v Liberta, 64 NY2d 152, 168). Since that standard has not been satisfied here, I would hold that, as applied in these circumstances, Penal Law § 245.01 is unconstitutional and, for that reason, the charges against appellants should have been dismissed.

Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men — they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure” when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed.” The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola.” The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v Boren, 429 US 190).

The majority has attempted to short-circuit this equal protection inquiry by holding that Penal Law § 245.01 is inapplicable to these facts. However, apart from a cryptic reference to People v Price (33 NY2d 831), which the majority admits involved a different statute and rationale, no explanation is offered as to why this facially applicable statute should not be applied here or what specific factor differentiates these circumstances from those in which the statute was intended to apply.

Price is inapt in this context because it involved the predecessor to the current Penal Law § 245.01 (L 1967, ch 367, § 1, amended by L 1970, ch 40, § 1, repealed by L 1983, ch 216, § 1), which was entitled "exposure of a female” and, as the majority acknowledges, "was aimed at discouraging 'topless’ waitresses and their promoters” (People v Price, supra, at 832; see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 245.01, at 299-300). Given that purpose, it made sense for the Court to hold in Price that the statute "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged” in that case (33 NY2d, at 832).

In contrast, the current version of Penal Law § 245.01, which was adopted in 1983 to replace the statute at issue in Price (L 1983, ch 216, § 1), was specifically intended to expand the reach of the "public exposure” prohibition. The new provision was aimed at filling a gap resulting from the fact that the existing law prohibited women from appearing topless in public but contained no prohibition against either men or women appearing bottomless in public places (Governor’s Approval Mem, L 1983, ch 216, 1983 McKinney’s Session Laws of NY, at 2756). The explicit purpose of the new law was to protect parents and children who use the public beaches and parks "from the discomfort caused by unwelcome public nudity” (id.; accord, Sponsors’ Mem re: Assembly Bill A5638, Bill Jacket, L 1983, ch 216; Letter dated May 31, 1983 from Assembly Member G. E. Lipschutz to Governor Cuomo re: Assembly Bill A5638, id.). Simply put, the focus of the legislation was to proscribe nude sunbathing by ordinary citizens (see, People v Hollman, 68 NY2d 202). It thus cannot seriously be argued that the present version of Penal Law § 245.01 was intended to be limited, as its predecessor may have been, to commercially motivated conduct.

Nor can it be argued that Penal Law § 245.01 was intended to be confined to conduct that is lewd or intentionally annoying. First, there is absolutely no support in the legislative history for such a construction. Second, a construction of Penal Law § 245.01 requiring lewdness would be of highly questionable validity, since it would render Penal Law § 245.00 (prohibiting the exposure of "intimate parts” "in a lewd manner”) redundant (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a] ["(a)ll parts of a statute must be harmonized * * * and effect and meaning must * * * be given to the entire statute”]). Finally, whatever the Court may have said about the limitations of the predecessor provision (see, People v Price, supra), this Court has already applied the current version of Penal Law § 245.01 to the public exposure of a person’s "intimate parts,” even where the conduct was merely an expression of a personal philosophy or a simple effort to "enhance * * * comfort [or] acquire an even tan” (People v Hollman, supra, at 206). Our analysis in People v Hollman (supra), thus plainly belies the limiting construction the majority now seems to adopt.

Accordingly, there is simply no sound basis for construing Penal Law § 245.01 so as to be inapplicable to the deliberate, nonaccidental conduct with which appellants were charged. The Court’s reliance on the "presumption of constitutionality” in these circumstances is thus nothing more than an artful means of avoiding a confrontation with an important constitutional problem. While it is true that statutes should be construed so as to avoid a finding of unconstitutionality if possible (McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [c], at 321), courts should not reach for strained constructions or adopt constructions that are patently inconsistent with the legislation’s core purpose (see, People v Dietze, 75 NY2d 47, 52-53; cf., People v Mancuso, 255 NY 463, 474). In doing so here, the majority has gone well beyond the limits of statutory construction and has, in effect, rewritten a statute so that it no longer applies to precisely the conduct that the Legislature intended to outlaw.

The equal protection analysis that the majority has attempted to avoid is certainly not a complex or difficult one. When a statute explicitly establishes a classification based on gender, as Penal Law § 245.01 unquestionably does, the State has the burden of showing that the classification is substantially related to the achievement of an important governmental objective (e.g., Caban v Mohammed, supra, at 388; Craig v Boren, supra, at 197; People v Liberta, supra, at 168). The analysis may have been made somewhat more difficult in this case because of the People’s failure to offer any rationale whatsoever for the gender-based distinction in Penal Law § 245.01. Nonetheless, even in the absence of any discussion by the People, the objective to be achieved by the challenged classification can be readily identified.

It is clear from the statute’s legislative history, as well as our own case law and common sense, that the governmental objective to be served by Penal Law § 245.01 is to protect the sensibilities of those who wish to use the public beaches and parks in this State (People v Hollman, supra, at 207; see, Governor’s Approval Mem, L 1983, ch 216, 1983 McKinney’s Session Laws of NY, at 2756; Sponsors’ Mem, id., Bill Jacket, L 1983, ch 216; Letter from Assembly Member G. E. Lipschutz to Governor Cuomo, id.). And, since the statute prohibits the public exposure of female — but not male — breasts, it betrays an underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not. It is this assumption that lies at the root of the statute’s constitutional problem.

Although protecting public sensibilities is a generally legitimate goal for legislation (see, e.g., People v Hollman, supra), it is a tenuous basis for justifying a legislative classification that is based on gender, race or any other grouping that is associated with a history of social prejudice (see, Mississippi Univ. for Women v Hogan, 458 US 718, 725 ["(c)are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions”]). Indeed, the concept of "public sensibility” itself, when used in these contexts, may be nothing more than a reflection of commonly held preconceptions and biases. One of the most important purposes to be served by the Equal Protection Clause is to ensure that "public sensibilities” grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government. Thus, where "public sensibilities” constitute the justification for a gender-based classification, the fundamental question is whether the particular "sensibility” to be protected is, in fact, a reflection of archaic prejudice or a manifestation of a legitimate government objective (cf., People v Whidden, 51 NY2d 457, 461).

Viewed against these principles, the gender-based provisions of Penal Law § 245.01 cannot, on this record, withstand scrutiny. Defendants contend that apart from entrenched cultural expectations, there is really no objective reason why the exposure of female breasts should be considered any more offensive than the exposure of the male counterparts. They offered proof that, from an anatomical standpoint, the female breast is no more or less a sexual organ than is the male equivalent (see, e.g., McCrary, Human Sexuality, at 141 [1973]). They further contend that to the extent that many in our society may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent (but see, Kinsey, Sexual Behavior in the Human Female, at 586-587 [1953]; Kinsey, Sexual Behavior in Human Male, at 575 [1948]; Wildman, Note on Males’ and Females’ Preference for Opposite-Sex Body Parts, 38 Psychological Reports 485-486), that perception cannot serve as a justification for differential treatment because it is itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women. Indeed, there are many societies in other parts of the world — and even many locales within the United States— where the exposure of female breasts on beaches and in other recreational area is commonplace and is generally regarded as unremarkable. It is notable that, other jurisdictions have taken the position that breasts are not "private parts” and that breast exposure is not indecent behavior (State v Parenteau, 55 Ohio Misc 2d 10, 11, 564 NE2d 505, citing State v Jones, 7 NC App 166, 171 SE2d 468; State v Moore, 194 Ore 232, 241 P2d 455; State v Crenshaw, 61 Haw 68, 597 P2d 13; see also, Duvallon v State, 404 So 2d 196 [Fla]), and 22 States specifically confine their statutory public exposure prohibitions to uncovered genitalia.

The People in this case have not refuted this evidence or attempted to show the existence of evidence of their own to indicate that the nonlewd exposure of the female breast is in any way harmful to the public’s health or well-being. Nor have they offered any explanation as to why, the fundamental goal that Penal Law § 245.01 was enacted to advance — avoiding offense to citizens who use public beaches and parks— cannot be equally well served by other alternatives (see, Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Orr v Orr, 440 US 268, 281-283).

In summary, the People have offered nothing to justify a law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do. The mere fact that the statute’s aim is the protection of “public sensibilities” is not sufficient to satisfy the State’s burden of showing an “ 'exceedingly persuasive justification’ ” for a classification that expressly discriminates on the basis of sex (see, Kirchberg v Feenstra, 450 US 455, 461). Accordingly, the gender-based classification established by Penal Law § 245.01 violates appellants’ equal protection rights and, for that reason, I concur in the majority’s result and vote to reverse the order below.

Chief Judge Wachtler and Judges Kaye, Hancock, Jr., and Bellacosa concur in memorandum; Judge Titone concurs in result in an opinion in which Judge Simons concurs.

Order reversed, etc.

       Contrary to the position of the concurrence (see, concurring opn, at 879), nothing in the Legislature’s repeal and replacement of Penal Law former § 245.01 (L 1983, ch 216), subsequent to our decision in Price, affects the holding of Price or our analysis here. The revised section 245.01 expanded the application of the former statute and prohibited full nudity by males and females (see, People v Hollman, 68 NY2d 202). In its definition of "private or intimate parts” as including women’s breasts, however, the revised statute retained the same discriminatory infirmity which occasioned our decision in Price. We find no basis in the revised statute or in the statutory history for not giving effect to Price here (see, Governor’s Approval Mem, L 1983, ch 216,1983 McKinney’s Session Laws of NY, at 2756).

      . Public exposure of a female’s breast for the purposes of breastfeeding infants or "entertaining or performing in a play, exhibition, show or entertainment” is expressly excluded from the statutory prohibition.

      . Significantly, the allegation in Price was that the defendant had been observed on a public street wearing a fishnet pullover which left portions of her breasts visible, prompting the Court to observe that, absent certain conditions, "legislation may not control the manner of dress” (33 NY2d, at 832). That consideration is obviously not relevant here, where appellants’ conduct was obviously intended as a political, rather than a fashion, statement.

      . Interestingly, expert testimony at appellants’ trial suggested that the enforced concealment of women’s breasts reinforces cultural obsession with them, contributes toward unhealthy attitudes about breasts by both sexes and even discourages women from breastfeeding their children.

      . See, Alaska Stat § 11.41.460; Cal Penal Code Annot § 314; Col Rev Stat § 18-7-302; Idaho Code § 18-4104; Iowa Code Annot § 709.9; Kan Stat Annot § 21-4301; Ky Rev Stat Annot § 510.150; Me Rev Stat Annot, tit 17-A, § 854; Mo Rev Stat § 566.130; Mont Code Annot § 45-5-504; Neb Rev Stat § 28-806; NH Rev Stat Annot § 645:1; ND Century Code § 12.1-20-12.1; NM Stat Annot § 30-9-14; Okla Stat, tit 21, § 1021; Ore Rev Stat Annot § 163.465; RI Gen Laws § 11-45-1; SD Codified Laws § 22-24-1; Tenn Code Annot § 39-13-511; Tex Penal Code Annot § 21.08; Utah Code Ann § 76-9-702; Wis Stat Annot § 944.20; see also, Robins v Los Angeles County, 248 Cal App 2d 1, 56 Cal Rptr 853.


text:
    The People of the State of New York, Respondent, v Alberto Gonzalez, Appellant.
    Argued June 5,1992;
    decided July 7, 1992

      APPEARANCES OF COUNSEL

      Allen Fallek and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney (Gregory C. Pavlides and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress statements allegedly made to law enforcement officers granted, and the case remitted to Supreme Court, Queens County, for a new trial if the People be so advised.

Defendant was convicted of manslaughter in the first degree, for allegedly acting as an accomplice to a homicide. The evidence against defendant included statements he made to a Detective Grossman at the precinct. Defendant contends that these statements should have been suppressed because they were the fruit of illegal police conduct; i.e., that three detectives entered defendant’s apartment without a warrant or probable cause to arrest and forced defendant to accompany them to the precinct. The issue is whether the hearsay testimony of Detective Grossman, the People’s sole witness at the suppression hearing, was sufficient, standing alone, to meet the People’s burden of showing that defendant voluntarily went to the police precinct where he allegedly made the inculpatory statements.

Detective Grossman testified at the suppression hearing that the three detectives present when defendant was taken from his house told him that defendant voluntarily accompanied them to the precinct. Defendant’s wife, however, testified that although her husband was not arrested, the detectives said to him that if he did not come to the precinct voluntarily, he would be forced to do so. The People did not produce any of the three detectives. Nor did the People give any indication that the three detectives were unavailable or offer any reason for not producing at least one of them. The Appellate Division, with one Justice dissenting, affirmed Supreme Court’s denial of defendant’s suppression motion, holding that it was up to the hearing court to determine the weight and credibility of Detective Grossman’s hearsay testimony (173 AD2d 845).

We agree with the dissent at the Appellate Division that the People did not meet their burden of showing that defendant freely consented to go to the precinct (see, People v Dodt, 61 NY2d 408, 417; People v Gonzalez, 39 NY2d 122, 128). Although Detective Grossman’s hearsay testimony was admissible (CPL 710.60 [4]), it did not supply the necessary proof of consent. That Grossman, who had no personal knowledge of the relevant facts, testified truthfully as to what the detectives told him has no bearing on the pertinent issue of whether the other detectives’ statements were true. Thus, the finding of the hearing court that Grossman was credible is irrelevant (cf., People v Prochilo, 41 NY2d 759, 761).

The People rely on cases where the testimony of an arresting officer concerning a hearsay police radio transmission or information received from another officer has been held sufficient to support probable cause for an arrest (see, e.g., People v Petralia, 62 NY2d 47, 53, cert denied 469 US 852; cf., People v Lypka, 36 NY2d 210, 213-214). These cases are not in point. Here, the information obtained by Detective Grossman from his fellow detectives was not something on which Grossman relied in taking action and, indeed, was unrelated to the performance of his law enforcement duties. On the contrary, it appears that Grossman’s knowledge concerning the disputed events was fortuitous. He happened to observe the defendant when he arrived at the precinct and to be told by the detectives of what had transpired at defendant’s home.

The hearing evidence presented substantial questions concerning the legality of the non-testifying detectives’ conduct. There is no basis for attributing reliability to the hearsay information related by Grossman or for assuming its truth. Thus, because the People produced no witness with firsthand knowledge of the police conduct in dispute, their proof was insufficient to meet their burden of showing that defendant’s consent was voluntary (see, People v Dodt, supra, at 416; People v Havelka, 45 NY2d 636, 641; People v Lypka, 36 NY2d 210, 214, supra). We conclude that defendant’s remaining claim is without merit.

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

Order reversed, defendant’s motion to suppress statements allegedly made to law enforcement officers granted, and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein.


text:
    Marine Management, Inc., Appellant, v Seco Management, Inc., Respondent, et al., Defendants.
    Argued June 2,1992;
    decided July 7, 1992

      APPEARANCES OF COUNSEL

      Peter J. Kiernan, Steven A. Berger, Michael L. Steindam and Robert M. Bursky for appellant.

      Robert Gutman for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (176 AD2d 252).

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


text:
    The People of the State of New York, Respondent, v Francisco Scott, Appellant.
    Decided July 7, 1992

      APPEARANCES OF COUNSEL

      Michelle Fox and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The Appellate Division did not err as a matter of law in dismissing the appeal from an execution of judgment to that court.

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


text:
    Patricia Cottone, Respondent, v Charles Cottone, Appellant.
    Submitted June 8,1992;
    decided July 7, 1992
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 78 NY2d 1071.] Cross motion for the imposition of sanctions denied.


text:
    Eugene H. Duffy et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, and Albert Engel et al., Proposed Intervenors-Appellants, v James W. Wetzler, Individually and as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Submitted May 18,1992;
    decided July 7, 1992
   Motion for leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs’ postjudgment motion to renew or reargue the denial of class certification dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Keith Groves et al., Appellants, v Land’s End Housing Co., Inc., Defendant, and Two Bridges Settlement Housing Corporation et al., Respondents. (And a Third-Party Action.)
    Submitted May 26,1992;
    decided July 7, 1992
   Motion to dismiss appeal denied.


text:
    In the Matter of Sam Polur, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 15, 1992;
    decided July 7, 1992
   Motion for intervention and related relief denied. [See, 79 NY2d 756.] Cross motion for the imposition of sanctions denied.


text:
    City of Poughkeepsie, Appellant-Respondent, v Poughkeepsie Associated Fire Department, Respondent, and Brian MacIsaac, Individually and on Behalf of Those Similarly Situated, Intervenor-Respondent-Appellant. (Action No. 1.) Brian MacIsaac, Respondent, v City of Poughkeepsie, Appellant, and Poughkeepsie Associated Fire Department, Respondent. (Action No. 2.)
    Submitted June 29 1992;
    decided July 7, 1992
   Appeal by the City of Poughkeepsie dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, §3 [b]; CPLR 5601).

Cross appeals by the Poughkeepsie Associated Fire Department and Brian MacIsaac dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Frank Sternberg, Respondent. Arnold Osman, Appellant, et al., Defendant.
    Submitted June 1,1992;
    decided July 7, 1992
   Motion for leave to appeal from the order of the Appellate Division which modified Supreme Court’s March 30, 1990 order, which also brings up for review by the Court of Appeals the nonfinal order of the Appellate Division affirming the order granting dissolution, denied. Motion for a stay dismissed as academic.


text:
    In the Matter of of Frank Sternberg, Respondent. Arnold Osman, Appellant, et al., Defendant.
    Submitted June 8,1992;
    decided July 7, 1992
   Motion for leave to appeal from the order of the Appellate Division which affirmed Supreme Court’s order granting the petition for dissolution dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Thomas F. O’Connor, Appellant, v Thomas Sobol, as Commissioner of Education, et al., Respondents.
    Submitted August 10,1992;
    decided August 26, 1992
   Motion to dismiss appeal taken as of right granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that the issues presented have become moot.


text:
    In the Matter of Wade Rawluk, Appellant, v Patricia M. McCullough et al., Respondents.
    Submitted August 24, 1992;
    decided August 26, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Luis W. Osorio, Appellant, v Ellen Leventhal et al., Respondents.
    Argued August 26,1992;
    decided August 27, 1992

      APPEARANCES OF COUNSEL

      Paul Wooten for appellant.

      Martin E. Connor and John M. Leventhal for respondents.
   OPINION OF THE COURT

Order reversed and judgment of Supreme Court in proceeding No. 2 granting the petition to validate reinstated for the reasons stated in the dissenting in part memorandum at the Appellate Division (185 AD2d 964).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa. Judge Titone dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division.


text:
    In the Matter of Elizabeth F. Momrow, Respondent, v George Scaringe et al., Constituting the Albany County Board of Elections, Respondents, and Christos N. Apostle, Appellant.
    Submitted September 9,1992;
    decided September 11, 1992
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of respondent’s motion to reargue and/or renew, dismissed upon the ground that that part of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Alan Clark, Appellant, v Canandaigua City School District, Respondent.
    Decided September 15, 1992

      APPEARANCES OF COUNSEL

      Robert W. Zimmerman for appellant.

      James A. Spitz, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (179 AD2d 1006).

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


text:
    Joseph Giordano et al., Appellants, v Sterling Insurance Company, Respondent.
    Submitted May 18,1992;
    decided September 15, 1992
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which affirmed Supreme Court’s order denying plaintiffs’ motion for reargument or renewal, dismissed upon the ground that that order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Marvin Gonzales, Plaintiff, v Armac Industries, Ltd., Defendant and Third-Party Plaintiff. General Thermoforming Corporation, Third-Party Defendant.
    Decided September 15, 1992
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Thomas A. Parkin et al., Appellants, v Cornell University, Inc., et al., Respondents.
    Submitted June 1,1992;
    decided September 15, 1992
   Motion for leave to appeal dismissed upon the ground that plaintiffs, having stipulated to reduce the amount of damages to which they are entitled, are not parties aggrieved (see, DiIorio v Gibson & Cushman, 77 NY2d 986; Dudley v Perkins, 235 NY 448, 457).


text:
    The People of the State of New York, Appellant, v Pelicia Bordeaux, Respondent.
    Decided September 15, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York ex rel. Fulgencio Calderon, Also Known as Francisco Valasquez, Appellant, v Raul Russi, as Chairman of the New York State Division of Parole, Respondent.
    Submitted May 26,1992;
    decided September 15, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Daniel L. Salamone, an Infant, by His Mother and Natural Guardian, Kathleen Salamone, et al., Appellants, v Hefiz U. Rehman et al., Respondents.
    Submitted June 8,1992;
    decided September 15, 1992
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    The People of the State of New York, Appellant, v Angel Santiago, Respondent.
    Decided September 17, 1992

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Stanley R. Kaplan of counsel), for appellant.

      Amy Donner and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. Under the facts and circumstances of this case, the People’s contention with respect to sentencing was not advanced at a time sufficient to preserve the issue for this Court’s review.

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


text:
    In the Matter of Gerald J. Garner, a Suspended Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted March 30,1992;
    decided September 17, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Security Pacific Business Credit, Inc., Appellant, v Peat Marwick Main & Co., as Successor to Main Hurdman and KMG Hurdman, Respondent.
    Submitted July 27, 1992;
    decided September 17, 1992
   Motion to amend remittitur and for reargument denied, with $100 costs and necessary reproduction disbursements. [See, 79 NY2d 695.]


text:
    In the Matter of Joel M. Berger, Appellant, v Board of Regents of the State of New York et al., Respondents.
    Submitted June 29,1992;
    decided September 22, 1992
   Motion for reconsideration of April 7, 1992 order of dismissal denied. [See, 79 NY2d 977.] Motion for leave to appeal denied.


text:
    In the Matter of the City of New York, Respondent, v Unsafe Building and Structure at 21 Richmond Avenue, Staten Island; Joseph Geronimo, Jr., et al., Appellants.
    Submitted June 8,1992;
    decided September 22, 1992
   Motion for leave to appeal dismissed upon the ground that it does not lie. Cross motion for the imposition of sanctions denied.


text:
    Clarendon Place Corporation et al., Respondents, v Landmark Insurance Company et al., Respondents, and Robert S. Black, as Public Administrator for Bronx County, Appellant.
    Submitted August 24,1992;
    decided September 22, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion to vacate stay denied. Cross motion for leave to appeal denied and cross motion for continuation of stay dismissed as academic.


text:
    In the Matter of Diamond Architecturals, Inc., Respondent, v EFCO Corporation, Appellant, and Glick Development Affiliates, Respondent.
    Submitted September 8,1992;
    decided September 22, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal pursuant to CPLR 5601 (c) does not lie where the Appellate Division order does not grant a new trial or hearing.


text:
    Kim Dillon, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted August 10,1992;
    decided September 22, 1992
   Motion for reconsideration of this Court’s order dated July 1, 1992 dismissing petitioner’s appeal upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution granted and, upon reconsideration, appeal taken as of right dismissed upon the ground that no substantial constitutional question is directly involved. [See, 80 NY2d 892.]


text:
    In the Matter of the F/B Children. Maureen B. F. et al., Respondents. John McH. et al., Intervenors-Appellants.
    Submitted June 22,1992;
    decided September 22, 1992
   Motion by respondent Maureen B. F., insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied respondent’s motion to file a supplemental record, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion by respondent Maureen B. F. for leave to appeal otherwise denied. On the Court’s own motion, appeal by intervenors McH., insofar as taken from that portion of the Appellate Division order that denied intervenors’ motion to review in camera testimony, dismissed, without costs, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal by intervenors McH. otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Gerald A. Harley, Appellant, v Jacqueline A. Harley et al., Respondents.
    Submitted June 29,1992;
    decided September 22, 1992
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the order of Supreme Court denying plaintiffs motion for reconsideration, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Helen Jiampietro, Individually and as a Shareholder of Utica Alloys, Inc., on Behalf of All Other Shareholders Similarly Situated, Respondent, v Utica Alloys, Inc., et al., Appellants.
    Submitted June 15,1992;
    decided September 22, 1992
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division which affirmed the order of Supreme Court denying defendants’ motion for renewal, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.

Judge Hancock, Jr., taking no part.


text:
    Bertram Z. Kadan, Appellant, v Fred Kavleski et al., Respondents.
    Submitted July 13,1992;
    decided September 22, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs motion to clarify its prior order and vacate the judgment entered thereon, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Richard C. Lussy, Appellant, v Commissioner(s) of Labor, "Jack”, Respondent. (And Another Title.)
    Submitted July 20,1992;
    decided September 22, 1992
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Richard Nickerson, Respondent, v Karen Worytko, Appellant, et al., Defendant.
    Submitted June 22,1992;
    decided September 22, 1992
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (CPLR 5602).


text:
    In the Matter of Parkway Hospital, Respondent, v David Axelrod, as Commissioner of the New York State Department of Health, Appellant.
    Submitted June 29, 1992;
    decided September 22, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Steve Rivera, Appellant.
    Submitted September 14,1992;
    decided September 22, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (see, People v Tramell, 77 NY2d 893).


text:
    The People of the State of New York ex rel. Lawrence Dixon, Also Known as Lawrence Billings, Appellant, v Warden, Sullivan Correctional Facility, Respondent.
    Submitted August 10,1992;
    decided September 22, 1992
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 80 NY2d 787.]


text:
    Public Administrator, as Administrator of the Estate of Jimmy Ng, Deceased, Respondent, v Linda C. Ng, Appellant.
    Submitted July 27,1992;
    decided September 22, 1992
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied defendant’s motion for poor person relief, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Herbert Thomas, Appellant, v Kings County District Attorney, Respondent.
    Submitted June 29,1992;
    decided September 22, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    United Arab Shipping Company (S.A.G.), Appellant, v Salt man Al-Hashim et al., Respondents.
    Submitted June 29,1992;
    decided September 22, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs motion to renew and vacate its earlier order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Town of North Hempstead et al., Appellants, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued September 15,1992;
    decided October 15, 1992

      APPEARANCES OF COUNSEL

      Ivan Kline, Town Attorney of Town of North Hempstead, Manhasset (Kathleen G. Oldak of counsel), for Town of North Hempstead and others, appellants.

      Seward & Seward, Rockville Centre (William E. Seward of counsel), for Village of Rockville Centre, appellant.

      Robert Abrams, Attorney-General, Albany (Wayne L. Benjamin,

      Jerry Boone and Peter H. Schiff of counsel), for respondents.

      Lydia Rocissano Marola, Albany, for New York State Conference of Mayors and Other Municipal Officials, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (171 AD2d 165).

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


text:
    Buffalo and Erie County Public Library, Respondent, v County of Erie, Appellant.
    Argued September 15,1992;
    decided October 15, 1992

      APPEARANCES OF COUNSEL

      Patrick H. NeMoyer, County Attorney, Buffalo (Alan P. Gerstman of counsel), for appellant.

      Kennedy, Stoeckl & Martin, P. C., Buffalo (Patrick E. Martin of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice John P. Balio at the Appellate Division (171 AD2d 369).

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


text:
    Christine J. Mosberg, Appellant, v E. Hakim Elahi, Respondent.
    Submitted September 10,1992;
    decided October 15, 1992

      APPEARANCES OF COUNSEL

      Anthony Malillo, Flushing, and Russell D. Mauro for appellant.

      Heidell, Pittoni, Murphy & Bach, New York City (Barbara A. Sheehan and Charles L. Bach, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The party opposing a motion to dismiss for failure to prosecute is obligated to make an evidentiary showing sufficiently demonstrating a "good and meritorious cause of action” (CPLR 3216 [e]; see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905). In medical malpractice actions expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons (Fiore v Galang, 64 NY2d 999). We agree with the Appellate Division that plaintiff failed to satisfy these requirements.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Stephen De Conto, Respondent.
    Argued September 11,1992;
    decided October 15,1992
    APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney of Westchester County, White Plains (Richard E. Weill of counsel), for appellant.

      Joel Martin Aurnou, White Plains, for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (172 AD2d 684).

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


text:
    The People of the State of New York, Respondent, v Angelo Torres, Appellant.
    Argued September 11,1992;
    decided October 20,1992
    APPEARANCES OF COUNSEL

      Orenstein Musoff & Orenstein, P. C., New York City Michael J. Coyle and Keith S. Orenstein of counsel), for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (William M. Harrington, Jay M. Cohen and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In People v Mullen (44 NY2d 1), the Court held that defendant’s right to be present at all material stages of trial was not violated when a hearing on a sworn juror’s possible disqualification was held in defendant’s absence. Although in People v Darby (75 NY2d 449, 453) we acknowledged that “greater safeguards may be desirable or even eventually held to be required depending on some future particular fact pattern,” the facts of this case do not warrant that concern. Here, the entire inquiry of the juror consisted of a single question and answer. The juror reported, in response to the court’s question whether she knew defendant, that she didn’t know him, but that her cousin had a friend who resembled defendant and shared his surname, and therefore might be defendant’s brother. After an off-the-record conference between the court and counsel, the juror was dismissed on consent. Given the nature and scope of the inquiry here, we cannot conclude that defendant’s right to be present was violated.

Defendant’s further contention that the trial court failed to conduct a sufficiently probing inquiry at the disqualification hearing or otherwise comply with the procedures announced in People v Buford (69 NY2d 290, 299) is unpreserved. Unlike defendant’s claim that the right to be present was abridged when the inquiry was conducted in his absence — an issue we will review even without objection at trial (People v Mehmedi, 69 NY2d 759, 760) — a claim that a disqualification hearing was inadequate must be preserved to present a question of law for our review.

Defendant’s remaining contentions, to the extent preserved, are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Apar Realty Corp., Appellant, v Division of Housing and Community Renewal, Respondent.
    Submitted August 3, 1992;
    decided October 20,1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [bp.


text:
    Vazem Corp. T/A Paradise Caterers, et al., Appellants, v Sea & Sky Garden, Inc., Respondent.
    Submitted August 31,1992;
    decided October 20,1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Ricky Orlopp et al., Appellants, v Peter S. Stirpe, as Personnel Officer, Wayne County Civil Service Personnel Office, Respondent.
    Submitted September 17,1992;
    decided October 22,1992

      APPEARANCES OF COUNSEL

      James T. Hancock, Bath, for appellants.

      Donald Crowley, County Attorney of Wayne County, Lyons (Daniel M. Wyner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Section 652-a of the County Law permits the Sheriff in certain counties, including Wayne County, to continue "the appointment and promotion of deputy sheriffs” until June 30, 1991. The statute was adopted in response to an amendment to the State Constitution which eliminated the basis for exempting certain employees of the Sheriff from the Civil Service Law (see, Thoubboron v New York State Dept, of Civ. Serv., 79 NY2d 982) and it was designed to provide "time during which a fair and orderly means of dealing with the many issues raised by the constitutional amendment are addressed and resolved”. (1990 NY Legis Ann, at 199, 200.) The statute was amended in 1991 to permit the Sheriff to continue to make such appointments through March 31, 1992. (L 1991, ch 602.)

Each of the four petitioners in this case was appointed by the Sheriff of Wayne County to serve as a guard in the county jail, a position previously designated "deputy sheriff” but at the time of the appointments was defined as "correction officer”. The appointments occurred in 1990, during the effective period of County Law § 652-a, but the respondent refused to consider them valid, claiming that the statute only applied to those performing duties as police officers, in positions specifically designated as "deputy sheriff”, and had no application to Sheriff’s appointees serving as correction officers in the jails. The courts below agreed, noting that there is a substantial difference between the duties of the two positions.

The statute at issue here does not define the term "deputy sheriff”, but it is clear from its history that in this instance the Legislature did not use the term, or intend it to be used, in a narrow, technical way. The Governor’s memorandum approving the bill noted that "the mission of a sheriff’s department” is "varied”, and involves civil functions, traditional law enforcement in the community and "corrections work”. (1990 NY Legis Ann, at 199-200.) The primary concern was that the constitutional amendment has created "turmoil and uncertainty” concerning the validity of appointments, especially in law enforcement and corrections, which left the status of individuals recently appointed to such positions "in doubt” (ibid.). It also made it difficult to attract new individuals to fill vacancies, particularly in corrections which traditionally offered an opportunity for promotion to police work in the community (ibid.). The sponsors’ memoranda in both the Senate and the Assembly noted a similar concern with the impact of the change in the law on both the law enforcement and corrections activities of the Sheriff, not only with respect to recruitment and retention of persons needed to provide these services, but also with respect to the validity of the official actions taken by persons so appointed. (See, Mem of Senator Cook and Assemblyman Seminerio, A 6192-A, S 9012, Bill Jacket, L 1990, ch 372.) In short, the statute temporarily permitting the Sheriff to continue the appointive system was intended to maintain the status quo in order to prevent any disruption in either the law enforcement or corrections services provided by the Sheriff. Thus in this case the statute authorized the Sheriff in 1990 to make appointments to fill staff vacancies at the county jail as he had in the past, and the respondent erred in declaring the appointments of these four petitioners invalid because they were nominally for the position of correction officer instead of Deputy Sheriff.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Paul Fluitt, Appellant.
    Argued September 17,1992;
    decided October 22,1992
    APPEARANCES OF COUNSEL

      Rosali Vazquez, New York City, and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Complainant was robbed at knifepoint while riding an elevator, alone, up to her apartment. Moments later, a neighbor saw a man resembling defendant, who had cloth wrapped around his hand, fleeing the building. A short time after, the police stopped defendant (who had cloth wrapped around his hand) on a nearby street in connection with an unrelated crime. When complainant’s husband, in pursuit of the robber, told police that defendant had robbed his wife, a search of defendant revealed that he was carrying jewelry belonging to complainant and a knife. Defendant was arrested, handcuffed and taken to the police station, where complainant identified him as the robber. The trial court suppressed both complainant’s identification of defendant (owing to the suggestive showup) and her in-court identification (owing to the absence of evidence of independent source). At trial, however, complainant was allowed to give a physical description of the robber. Testifying on his own behalf, defendant recounted that, while out jogging, he had collided with a lookalike wearing similar clothing, who dropped the knife and jewelry that he picked up just before the police stopped him.

Complainant was properly allowed to testify to details she could not have gleaned from the showup — for example, her detailed description and identification of the knife as well as the fact that cloth was wrapped around her assailant’s hand— and such details were corroborated by other evidence. Therefore, while it was improper for complainant to give a physical description of the robber — there having been no finding that such description, given for the first time after the showup, was untainted (see, People v Moss, 80 NY2d 857) — in this case the error was harmless (People v Crimmins, 36 NY2d 230, 241).

Defendant’s remaining contentions are either unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ignacio Diaz, Appellant.
    Decided October 22,1992

      APPEARANCES OF COUNSEL

      Milton Zelermyer, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Adrienne Brewington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Trained narcotics officers driving through a drug-prone neighborhood spotted defendant clutching a plastic bag tightly against his body. These circumstances, although not necessarily indicative of criminality, justified the officers’ initial approach for the purposes of asking defendant to identify himself and state his purpose in the neighborhood (see, People v De Bour, 40 NY2d 210). That one officer held his hand on his bolstered gun as he approached defendant was not, by itself, sufficient to raise the encounter to a second-level investigatory stop under De Bour, and defendant intentionally abandoned the plastic bag and fled before the officers had any opportunity to ask him any questions. Accordingly, the courts below correctly denied defendant’s motion to suppress.

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

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


text:
    The People of the State of New York, Respondent, v James Rossi, Appellant.
    Argued September 9,1992;
    decided October 22,1992

      APPEARANCES OF COUNSEL

      Michael R. Gavenchak, New York City, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (David Joseph Mudd and Nikki Kowalski of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion granted to the extent of suppressing the arresting officer’s testimony concerning defendant’s postarrest conduct, and the indictment dismissed.

Defendant was arrested during the course of an investigation of illegal gambling activities allegedly being conducted in room 406 of a New York City office building. It is now undisputed that defendant’s arrest in the hallway outside the room was unlawful and that the police officers subsequently executed a valid search warrant. In defendant’s omnibus motion, he sought to suppress all tangible evidence, statements and other evidence "flowing from” his unlawful arrest and he requested a hearing pursuant to Dunaway v New York (442 US 200). Without holding a hearing, Supreme Court denied the motion on the ground that the search warrant was validly executed. At the bench trial, a jacket recovered from room 406 was admitted into evidence. Additionally, the arresting officer testified that after defendant’s arrest in the hallway he was brought back to room 406, that he was instructed to sit down, that defendant sat down in an empty chair with a jacket hanging on the back of it and that defendant picked up the jacket and put it on when the police officers and the codefendants exited the room. Defendant was convicted of promoting gambling in the first degree, possession of gambling records in the first degree, and possession of a gambling device. A divided panel of the Appellate Division affirmed the conviction, holding that "the testimony about the jacket, resulted solely from the execution of a search warrant, whose validity defendant does not contest” (People v Rossi, 177 AD2d 303, 306).

While the jacket was properly admitted in evidence as the product of the warrant execution (see, People v Arnau, 58 NY2d 27, 32-35), the jacket has no incriminating value against defendant absent evidence connecting defendant to it. The necessary connecting evidence was supplied by the arresting officer’s testimony concerning defendant’s conduct upon his concededly unlawful arrest and asportation to room 406. This should have been suppressed as it resulted, not from the lawful execution of a valid search warrant, but from defendant’s wrongful arrest (see, Wong Sun v United States, 371 US 471, 485-486). Accordingly, defendant’s suppression motion should have been granted in part. Because this testimony was the only evidence connecting defendant with the jacket, and the jacket was the only direct link between defendant and the gambling activities, the indictment should have been dismissed.

In view of our disposition, we do not decide defendant’s remaining contention.

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

Order reversed, etc.


text:
    In the Matter of Andrew J. Weidman, Respondent, v Ronald J. Starkweather et al., as Commissioners of the Board of Elections of Monroe County, Respondents, and John L. Viggiani, Appellant.
    Decided October 22, 1992
    APPEARANCES OF COUNSEL

      Phillips, Lytle, Hitchcock, Blaine & Huber, Rochester (Kenneth W. Gordon of counsel), for appellant.

      Harter, Secrest & Emery, Rochester (Peter H Abdella of counsel), for Andrew J. Weidman, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court, Monroe County, dismissing the petition to invalidate reinstated.

Appellant filed a designating petition with the Monroe County Board of Elections as the Democratic candidate for the Monroe County Legislature "representing the 8th District. Respondent objected to appellant’s petition on the grounds that appellant did not reside in the 8th District at the time the designating petition was filed. He commenced an invalidation proceeding against appellant and the Monroe County Board of Elections, which Supreme Court, Monroe County, dismissed. The Appellate Division reversed, granted the petition and invalidated the designating petition. We granted leave to appeal to address the question whether candidates for county legislator must reside in the county in which they seek election at the time they file a designating petition.

Three provisions affect the decision: Public Officers Law § 3 (1), Election Law § 6-122 and Monroe County Charter § C2-3 (A). Significantly, none of these provisions expressly mandates that a candidate for public office be a resident of the election unit at the time the designating petition is filed.

Election Law § 6-122 simply prohibits a person from being designated or nominated for public office who cannot meet the statutory or constitutional qualifications at the "commencement of the term of such office”. Public Officers Law § 3 (1) adds that candidates satisfy residency requirements as of the time they are elected. Finally, Monroe County Charter § C2-3 (A) requires that candidates for County Legislature reside in the County and legislative district in which they seek election at least 30 days prior to the election.

The interplay of these provisions fixes the earliest time for residency at 30 days prior to the election, not as of the time of filing the designating petition. While there might be policy reasons for the latter view, no provision of law so dictates. It is not for the courts but for the Legislature to impose such requirements.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and judgment of Supreme Court, Monroe County, reinstated in a memorandum.


text:
    Brenda I. Davis, Appellant, v 383 Warburton Avenue Associates et al., Respondents.
    Submitted August 3,1992;
    decided October 22, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Bertram Glanzman, Appellant, v Bradley Fischman, Respondent.
    Submitted August 3,1992;
    decided October 22, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    Isaac Miller, Appellant, v Betlem Service Corporation et al., Respondents.
    Submitted August 3,1992;
    decided October 22, 1992
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    Terry A. Parent, Appellant, v Jefferson County Department of Social Services et al., Respondents.
    Submitted August 10,1992;
    decided October 22, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Appellant, v Walter Elam, Respondent.
    Decided October 22, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

Judge Smith taking no part.


text:
    Patricia Ray, Appellant, v Salvatore Ficchi, Respondent.
    Submitted July 27,1992;
    decided October 22, 1992
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division which affirmed the May 6, 1991 order of the Supreme Court, dismissed upon the ground that that order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Carl L. Seymour, as Supervisor of the Town of Northumberland, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted August 3,1992;
    decided October 22, 1992
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see, CPLR 5601 [b] [1]).


text:
    In the Matter of Tamara B., Appellant, v Pete F., Respondent.
    Submitted October 5,1992;
    decided October 22, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Evelyn Ares, Individually and as Administratrix of the Estate of Rafael Ares, Deceased, Appellant, v State of New York et al., Respondents.
    Argued September 15,1992;
    decided October 29, 1992

      APPEARANCES OF COUNSEL

      Sullivan & Liapakis, P. C., New York City (Cheryl Eisberg Moin and Pamela Anagnos Liapakis of counsel), for appellant.

      White, Fleischner, Fino & Wade, New York City (Benjamin A. Fleischner and Lynn J. Hershkovits of counsel), for New York State Thru way Authority, respondent.

      Robert Abrams, Attorney-General, Albany (Jerry Boone of counsel), for State of New York, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division erred in concluding that Labor Law § 241 (6) applies only to work in connection with the construction or demolition of buildings and not to the highway construction project involved here (see, Mosher v State of New York, 80 NY2d 286 [decided today]). Nevertheless, the claimant’s cause of action under that section was properly dismissed. The record supports the Court of Claims conclusion that claimant failed to establish that a violation of a safety regulation promulgated pursuant to Labor Law § 241 (6) was the proximate cause of the accident.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Bowery Savings Bank, Respondent, v Board of Assessors of the County of Nassau et al., Appellants. Coliseum Hotel Associates, Respondent, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of the County of Nassau et al., Appellants. In the Matter of Corporate Property Investors et al., Respondents, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of the County of Nassau, Appellant. Corporate Property Investors et al., Respondents, v Board of Assessors of the County of Nassau et al., Appellants, and Garden City Union Free School District No. 18 et al., Respondents. In the Matter of Equitable Life Assurance Society of the United States, Respondent, v Board of Assessors of the County of Nassau et al., Appellants, and Valley Stream Union Free School District No. 30, Respondent. In the Matter of Jericho-Westbury Indoor Tennis, Inc., Respondent, v Board of Assessors of the County of Nassau et al., Appellants, and Jericho Union Free School District No. 15, Proposed Respondent. Reckson Associates, Respondent, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of the County of Nassau et al., Appellants. In the Matter of Coliseum Towers Associates, Respondent, v Robert D. Livingston, as Receiver of Taxes of the Town of Hempstead, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants. In the Matter of Jericho Properties No. 1, Respondent, v Gary F. Musiello, as Receiver of Taxes of the Town of Oyster Bay, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants. In the Matter of Jericho Quadrangle One Company, Respondent, v Gary F. Musiello, as Receiver of Taxes of the Town of Oyster Bay, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants.
    Argued September 17,1992;
    decided October 29, 1992

      APPEARANCES OF COUNSEL

      Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Leslie Gordon Fagen, Aidan Synnott and Andrew B. Gelman of counsel), for appellants.

      Keoppel Martone Leistman & Herman, Mineóla (Donald F. Leistman of counsel), for Bowery Savings Bank and others, respondents.

      Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C., Uniondale (Dolores Fredrich, John P. Cleary and F. Judith Hepworth of counsel), for Coliseum Towers Associates and another, respondents.

      Cullen & Dykman, Garden City (Peter J. Mastaglio and Thomas B. Wassel of counsel), for Uniondale Union Free School District No. 2 and others, respondents.

      Payne, Wood & Littlejohn, Melville (Stephen Van R. Ulman of counsel), for Jericho Quadrangle One Company, respondent.

      Robert Abrams, Attorney-General, Albany (John W. McConnell, Jerry Boone and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Memorandum.

In each matter, the judgment of Supreme Court. and the order of the Appellate Division brought up for review should be affirmed, with costs.

In their present posture, these appeals present only one issue for the Court’s resolution: whether the respondent County is liable for tax refunds to plaintiffs and petitioners. The issue arises because of a prior disagreement between the County and several school districts within the County over the school district’s power to "opt out” of a tax exemption scheme permitted by Real Property Tax Law § 485-b. Over the County’s objection, the school boards insisted they had the right to opt out. The Appellate Division sustained the school districts’ contention and subsequently ordered the County to remove the partial exemptions of the litigating taxpayers from the tax assessment rolls (see, Matter of Walker v Board of Assessors, 103 AD2d 580). On appeal, this Court reversed, holding that the school districts had no authority to opt out of the exemptions (see, Matter of Walker v Board of Assessors, 66 NY2d 702, revg 103 AD2d 580, supra). Consequently, the exemptions had been improperly removed, and the present petitioners and plaintiffs, affected taxpayers, commenced these actions seeking refunds for the taxes they had paid during the years in which their exemptions were wrongfully denied.

Section 6-26.0 (b) (3) (c) of the Nassau County Administrative Code, the relevant statute, provides:

"(c) Notwithstanding any provisions of this chapter, or any other general or special law to the contrary, any deficiency existing or hereafter arising from a decrease in an assessment or tax under subdivisions one, four and seven of section 6-24.0, or sections 6-12.0 or 5-72.0 of the code, or by reason of exemptions or reductions of assessments shall be a county charge” (emphasis added).

The statute’s unambiguous language requires that the County be held liable for the tax refunds inasmuch as "deficiencies] existing or hereafter arising * * * by reason of exemptions * * * shall be a county charge.” The result is consistent with the statutory taxing scheme existing in Nassau County. The County Board of Assessors exclusively prepares the assessment rolls for State, county, town, special district and school taxes and, consistent with these responsibilities, the Legislature imposed responsibility for all taxing errors emanating from these assessment rolls solely upon the County (see, Assembly Mem in Support of Bill, Bill Jacket, L 1948, ch 851, at 8-9). The County, therefore, should bear the burden of paying to the litigating taxpayers the refunds necessitated by the erroneous removal of their exemptions from the tax rolls.

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

In each case: Judgment of Supreme Court and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.

       A review of the lengthy history of these cases is set forth in Corporate Prop. Investors v Board of Assessors (153 AD2d 656).


text:
    Amos Jock et al., Appellants, v Donald L. Fien, Respondent. Amos Jock et al., Appellants, v Richard Van Petty, Respondent.
    Argued September 15,1992;
    decided October 29, 1992

      APPEARANCES OF COUNSEL

      Villani & Grow, Lyons (Anthony J. Villani of counsel), for appellants.

      Sutton, De Leeuw, Clark & Darcy, Pittsford (John H. Darcy of counsel), for Donald L. Fien, respondent.

      John A.R. Walsh, Ontario, for Richard Van Petty, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

The injured plaintiff, an employee of Van Petty Excavating, Inc., fell from an upright steel mold that he was preparing during his customary occupational work of fabricating a concrete septic tank (see, 176 AD2d 6, 7-8, for detailed recitation of facts). The accident happened in a building owned by defendant Fien and leased to defendant Van Petty, whose business included the manufacture of septic tanks.

The injured plaintiff and his spouse sued, alleging violations of Labor Law §§ 200, 240 (1) and § 241 (6). All plaintiffs and defendants made motions for summary judgment, which Supreme Court denied. On cross appeals, the Appellate Division unanimously modified by granting defendants’ motions and dismissing the complaints. It held that the injured plaintiff was not engaged in any activity protected under Labor Law §§ 200, 240 (1) or § 241 (6), and that plaintiffs failed to state any cause of action. That Court added that the injured plaintiff was engaged in a normal manufacturing process, which is "outside the scope of Labor Law §§ 200, 240 (1) and 241 (6) and is instead covered under article 11 of the Labor Law and more specifically section 316, which applies to owners and occupiers of 'factories’ [which] buildings are specifically excluded from provisions of the Labor Law affecting structural changes and alterations [by] Labor Law § 2 (9)” (176 AD2d 6, 9, supra). This Court granted plaintiffs’ motion for leave to appeal.

We now modify by reinstating only the Labor Law § 200 cause of action, which codifies the common-law duty of an owner or employer to provide employees with a safe place to work (Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299, rearg denied 45 NY2d 776), and remitting to Supreme Court for further proceedings as to that cause of action. Section 200 (1) covers "[a]ll places to which [the Labor Law] applies,” which may include factories (see, Labor Law § 2 [9], [10]; see also, Labor Law art 11). It requires those places to be "so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety” of employees (Labor Law § 200 [1]). It also requires all machinery equipment and devices in such places to be "placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons” (Labor Law § 200 [1]). Inasmuch as section 200 is not limited to construction work and does not exclude employees engaged in normal manufacturing processes, as all counsel appeared to acknowledge at oral argument, plaintiffs’ cause of action in that regard should not have been dismissed.

We do not agree with plaintiffs-appellants, however, that the Appellate Division erred in dismissing plaintiffs’ other Labor Law causes of action. Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure (see, Rocovich v Consolidated Edison Co., 78 NY2d 509; see also, Lombardi v Stout, 80 NY2d 290 [decided today]; Bland v Manocherian, 66 NY2d 452, 459; Zimmer v Chemung County Performing Arts, 65 NY2d 513, rearg denied 65 NY2d 1054). Also, Labor Law § 241 (6) requires contractors and owners to provide "reasonable and adequate protection and safety” to employees working in, and persons lawfully frequenting, "[a]ll areas in which construction, excavation or demolition work is being performed”. At the time of the accident, the injured plaintiff was not engaged in any construction or sewer project and was not involved in renovation or alteration work on the factory. His work fabricating the molds during the normal manufacturing process did not involve "erection, demolition, repairing, altering, painting, cleaning or pointing” (Labor Law § 240 [1]), or "construction” or "excavation” work (Labor Law § 241 [6]; see also, 12 NYCRR 23-1.4 [b] [13]). Thus, he was not engaged in an activity protected under Labor Law § 240 (1) or § 241 (6), which subject contractors and owners to absolute strict liability.

Because we resolve the Labor Law § 240 (1) and § 241 (6) causes of action on narrower grounds than the Appellate Division did, there is no need to pass on the broader and still open issue of whether Labor Law §2 (9) renders article 11, specifically section 316, as the exclusive remedy for such situations.

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

Order modified, etc.


text:
    Board of Education of West Islip Union Free School District et al., Plaintiffs, and Austin T. Gavin et al., Appellants, v New York State Teachers’ Retirement System et al., Respondents.
    Submitted October 26,1992;
    decided October 29, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    Collision Plan Unlimited, Inc., et al., Appellants, v Bankers Trust Company, Defendant and Third-Party Plaintiff-Respondent. Nicholas Neu, Third-Party Defendant-Appellant.
    Submitted August 17,1992;
    decided October 29, 1992
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which denied third-party defendant’s cross motion to serve an amended answer, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Titone taking no part.


text:
    Joan Dawson et al., Appellants, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents.
    Submitted October 19,1992;
    decided October 29, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Feeward Construction Co., Inc., Respondent, v Louis Capolino et al., Appellants, et al., Defendant.
    Submitted August 31,1992;
    decided October 29, 1992
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    Hartford Accident and Indemnity Company, Plaintiff, v Burns Electric Co., Inc., Defendant and Third-Party Plaintiff-Appellant. Marine Midland Bank, N.A., et al., Third-Party Defendants-Respondents. (And Two Other Actions.)
    Submitted August 10,1992;
    decided October 29, 1992
   Motion for leave to appeal as against third-party defendants Alibrandi and JGA Construction Corp. dismissed upon the ground that the order sought to be appealed from as to said third-party defendants does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Roland Marx et al., Appellants, v Planning Board of the Village of Mill Neck, Respondent.
    Submitted October 19,1992;
    decided October 29, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Irene Starosta, Appellant, v Vitalis Pedzik, Respondent.
    Submitted August 24,1992;
    decided October 29, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    Eileen Wells, as Administratrix of the Estate of Neill M. Wells, Deceased, et al., Appellants, v Bard College et al., Respondents.
    Submitted August 10, 1992;
    decided October 29, 1992
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the denial of plaintiffs’ motion to amend the complaint, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Smith taking no part.


text:
    Keith Groves et al., Appellants, v Land’s End Housing Co., Inc., Defendant, and Two Bridges Settlement Housing Corporation et al., Respondents and Third-Party Plaintiffs, et al., Third-Party Defendant.
    Argued September 15,1992;
    decided October 22, 1992

      APPEARANCES OF COUNSEL

      Kelner & Kelner, New York City (Robert B. Marcus, Joseph Kelner and Gail S. Kelner of counsel), for appellants.

      Seligson, Rothman & Rothman, New York City (Martin S. Rothman, Alice Spitz, Alyne I. Diamond, Jeffrey Rothman and Stewart Rothman of counsel), and Molod & Berkowitz, P. C, New York City, for Two Bridges Settlement Housing Corporation and another, respondents.

      Rivkin, Radler & Kremer, Uniondale (John M. Denby and Evan H. Krinick of counsel), and Shapiro, Shiff, Beilly, Rosenberg & Fox, New York City, for Sherilu Construction, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

In this Labor Law § 240 (1) action against a site owner and general contractor, the Appellate Division denied as premature plaintiffs’ motion for partial summary judgment as to liability, on the ground that there was "outstanding discovery sought by defendants, the opportunity to depose eyewitnesses and other witnesses.” (175 AD2d 733, 734, citing CPLR 3212 [f].) Given that defendants in their affidavits asserted that they needed more discovery time to depose witnesses as to the use and existence of safety devices, and given that the discovery timetables set forth in a preliminary conference order had not yet expired, we cannot conclude that the Appellate Division erred in its disposition.

Alternatively, the Appellate Division concluded that partial summary judgment was improper, relying on Yaeger v New York Tel. Co. (148 AD2d 308), because not every one of plaintiffs’ half-dozen or more varying versions of the accident involved work performed at heights. As we made clear in Rocovich v Consolidated Edison Co. (78 NY2d 509, 514), Labor Law § 240 (1) applies not simply where the work is performed at heights but where the work involves risks related to differences in elevation. Although Yaeger does not correctly state the law, the Appellate Division’s denial of plaintiffs’ summary judgment motion was nonetheless proper on the ground that "plaintiff[ ] [laborer’s] account of the accident as set forth in the complaint may not support a finding that this statute was violated.” (175 AD2d, at 734, supra.)

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

Order affirmed, etc.


text:
    The People of the State of New York, Appellant, v Corey Beasley, Respondent.
    Decided October 27, 1992

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Mastrocola of counsel), for appellant.

      Edward J. Nowak, Public Defender of Monroe County, Rochester (James Eckert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed (see, People v Dokes, 79 NY2d 656).

Defendant’s failure to raise an objection when the trial court proceeded to conduct a Sandoval (People v Sandoval, 34 NY2d 371) hearing in his absence is not an obstacle to our review (People v Dokes, supra, at 662). Since his presence was required at this material stage, which in the circumstances of this case inferentially and directly affected the prosecutor’s trial strategy to cross-examine defendant with respect to drug-related activities — he had no prior criminal convictions, as was brought out at the Sandoval hearing and decision — the Appellate Division correctly reversed and ordered a new trial.

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

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


text:
    In the Matter of the Liquidation of Union Indemnity Insurance Company of New York. Royal Bank and Trust Company, Respondent, v James P. Corcoran, as Superintendent of Insurance of the State of New York, and as Liquidator of the Union Indemnity Insurance Company of New York, Appellant.
    Argued October 21,1992;
    decided November 18, 1992

      APPEARANCES OF COUNSEL

      Herzfeld & Rubin, P. C., New York City (David B. Hamm. and Herbert Rubin of counsel), and William F. Jerome, New York City, for appellant.

      Gibson, Dunn & Crutcher, New York City (Jerry J. Strochlic and Edward T. Ferguson, III, of counsel), and Thomas A. Harnett, New York City, for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion of Justice Ira Gammerman at Supreme Court, New York County (148 Misc 2d 863), except insofar as it discusses the superseding legislation and the reasons for its enactment.

Concur: Acting Chief Judge Simons and Judges Kaye, Ti-tone, Hancock, Jr., Bellacosa and Smith.


text:
    Maurice Goldman & Sons, Inc., Appellant, v Hanover Insurance Company et al., Respondents.
    Argued October 20,1992;
    decided November 18, 1992
    APPEARANCES OF COUNSEL

      Tenzer, Greenblatt, Fallon & Kaplan, New York City (Edward L. Sadowsky of counsel), for appellant.

      Abrams & Martin, P. C., New York City (Michael E. Gorelick and Martin I. Nagel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

During a business trip, plaintiffs president noticed that a bag containing jewelry was missing from his personal effects. He was unable to say how or where the loss occurred. Plaintiff thereafter submitted a claim to defendants, the issuers of its primary and excess "jewelers block” insurance policies. Defendants, however, disclaimed liability for the loss, relying on the clauses in their policies that excluded from coverage "[unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory.”

Plaintiff commenced the present action, arguing that the exclusionary clause on which defendants relied is ambiguous because it could be construed to apply only to losses discovered "on taking inventory” rather than to all mysterious and unexplained losses regardless of how such losses are discovered. Both courts below rejected plaintiffs argument and granted defendants summary judgment dismissing the complaint. We now affirm.

Where the provisions of an insurance contract are clear and unambiguous, the courts should not strain to superimpose an unnatural or unreasonable construction (see, e.g., Government Empl. Ins. Co. v Kligler, 42 NY2d 863; Ambassador Assocs. v Corcoran, 79 NY2d 871, affg 168 AD2d 281). Contrary to plaintiffs argument, the clause in issue here is susceptible of only one interpretation. Each of the enumerated casualties, i.e., "[unexplained loss,” "mysterious disappearance,” and "loss or shortage discovered on taking inventory,” is plainly an independent basis for exclusion. There is nothing in the grammar or syntax of the exclusionary clause to suggest that the phrase "discovered on taking inventory” was intended to modify each one. To the extent that the court reached a contrary conclusion in McCormick & Co. v Empire Ins. Group Co. (878 F2d 27), its holding is an inaccurate interpretation of New York State law.

Equally unpersuasive is plaintiffs argument that the ruling of the courts below improperly shifted the burden of proof from the insurer to the insured. While it is true that an insurer generally has the burden of proving that a loss is within the scope of a policy exclusion (Facet Indus, v Wright, 62 NY2d 769, 771), defendants satisfied that burden here by simply showing that plaintiff’s claim concededly involved an "unexplained loss” or "mysterious disappearance.”

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    Kevin McGlynn, Appellant, v Michael Gurda et al., Respondents.
    Submitted September 8,1992;
    decided November 18, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal as of right lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.