text:
    Amusement Business Underwriters, a Division of Bingham & Bingham, Inc., Respondent, v American International Group, Inc., et al., Appellants.
    Decided November 21, 1985

      APPEARANCES OF COUNSEL

      Robert E. Kushner for appellants.

      Lester E. Fetell for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by remitting the case to Supreme Court for a new trial on the issue of damages only, and, as so modified, affirmed.

In December 1981 plaintiff, an insurance brokerage firm, commenced an action for an accounting claiming that defendants had not made full payment under the parties’ contingent commission agreement. In their answer, defendants counterclaimed for premiums that plaintiff was obligated to remit to them under a separate general agency agreement. Shortly thereafter, defendants canceled approximately 364 policies issued on their behalf by plaintiff. On February 1, 1982 plaintiff instituted a separate action for tortious interference with its business relations, alleging that the termination of these policies had destroyed its business. The parties terminated their relationship two days later and plaintiff served as general agent for another underwriter, INA, from April 1982 to October 1982. On the later date it went out of business.

After the actions were consolidated, Special Term struck defendants’ answers and counterclaims for willful failure to answer interrogatories and ordered an inquest on damages only. The Appellate Division affirmed this determination and denied defendants’ motion for reargument. The damages inquest was tried before a jury and both parties presented evidence on both the accounting and tortious interference claims. Prior to summations, the court withdrew the accounting claim from the jury and reserved it for the court’s determination. The jury returned a verdict for plaintiff on the tortious interference claim that was later reduced by the court to $1,250,000 and the court awarded plaintiff damages of $156,250 on the accounting claim. Judgment was entered on both claims and the Appellate Division affirmed, without opinion.

We conclude that the trial court erred in unduly restricting defendants’ presentation of evidence in mitigation of damages in the form of a setoff and ignored credits in defendants’ favor in the accounting action. Thus, there should be a reversal and a new trial on the issue of damages.

Evidence of plaintiff’s failure to remit over $689,000 in premiums to defendants prior to commission of the tort in February 1982 should have been admitted as evidence of a proper setoff. Although a defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff’s conclusion of damages but may, at an inquest, offer proof in mitigation of damages if it involves "circumstances intrinsic to the transactions at issue” in the plaintiff’s complaint (Rokina Opt. Co. v Camera King, 63 NY2d 728, 731; McClelland v Climax Hosiery Mills, 252 NY 347, 351; see also, Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568). Evidence of setoffs or claims "arising or existing separate and distinct from the transactions out of which the plaintiff’s cause of action arises”, however, is inadmissible (Rokina Opt. Co. v Camera King, supra, at p 730).

Although the complaint in the accounting action involved only the contingent commission agreement and the claimed setoff arises out of the general agency agreement, we conclude that the setoff arises out of the same basic transactions put in issue by plaintiff’s complaint. Here, the contingent commission agreement was only a part of the entire commission arrangements between the parties, which also included the general agency agreement. More importantly, when plaintiff was entitled to a contingent commission in 1979, defendants, at plaintiff’s request, applied the amount due to plaintiff’s outstanding account with defendants. This provides strong evidence that both parties viewed the separate agreements as merely aspects of an integrated series of transactions. A contrary conclusion would create a distinction not intended in Rokina, ignore the practical realities of the parties’ dealings and represent an unwarranted punishment for defendants who have already had the issue of liability removed from the case.

Defendants also contend that the lower courts erroneously concluded that the term "outstanding claims” in the contingent commission agreement did not include losses incurred but not reported (IBNR) and that defendants, therefore, owed plaintiff additional contingent commissions for 1977 and 1978. While the meaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact (Sutton v East Riv. Sav. Bank, 55 NY2d 550, 554; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172). Whether such an ambiguity exists is a question for the court (see, Sutton v East Riv. Sav. Bank, supra). In this case, the trial court properly found such an ambiguity and went on to conclude, as an issue of fact that, based on the extrinsic evidence offered at trial, the parties did not intend to include IBNR losses in calculating contingent commissions. This fact finding was affirmed by the Appellate Division and is, therefore, beyond the scope of our review insofar as there is evidence in the record to support it (see, Humphrey v State of New York, 60 NY2d 742, 743). Due to the dual presence of IBNR losses in both the income and outgo categories of the contingent commission formula, however, the erroneous inclusion of IBNR losses resulted in an overpayment by defendants to plaintiff in contingent commissions in 1979. At the new trial on damages defendants should be allowed to prove the amount of overpayment and claim this amount as a setoff in addition to the setoff for unremitted premiums (see, Rokina Opt. Co. v Camera King, 63 NY2d 728, 730-731, supra).

Finally, we note that Special Term committed no error of law in striking defendants’ answers for failure to answer interrogatories.

We have reviewed defendants’ remaining contentions and find that they lack merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

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


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    The People of the State of New York, Appellant-Respondent, v Andre Fediuk, True Name Andry Fediuk, Respondent-Appellant.
    Argued September 10, 1985;
    decided November 21, 1985

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Ray F. Cerreta of counsel), for appellant-respondent.

      Judith Preble and William E. Hellerstein for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Five months after separating from his wife and their two children, during which time she lived in a battered women’s shelter and told defendant that she no longer loved him, defendant learned that his wife had been seeing another man, Walter Cassella, and had taken a trip with Cassella and the children. Having read in his wife’s diary that Cassella was the only man she ever loved, defendant confronted them both, punched and threatened to kill her, and shot and killed Cassella. Defendant surrendered to the police, then called his wife. When she asked in their telephone conversation why he had killed Cassella, defendant responded that it was because he loved her and wanted to prove his love to her. When she asked if he had nightmares about the killing, defendant responded that it didn’t bother him at all. In defendant’s trial for the murder of Cassella, his wife testified for the People, and over objection related the substance of their telephone conversation. Defendant sought to establish a defense of extreme emotional disturbance, but was convicted, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the fourth degree. The Appellate Division reversed and ordered a new trial, concluding that admission of the contents of defendant’s telephone conversation with his wife -violated his marital privilege. One justice dissented, voting to reduce the conviction to manslaughter in the first degree because in his view defendant established that he had acted under the influence of extreme emotional disturbance. We now affirm.

One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10). "Not protective of all communications, the privilege attaches only to those statements made in confidence and 'that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.’ ” (Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73.) Communication between spouses "is presumed to have been conducted under the mantle of confidentiality” (People v Fields, 38 AD2d 231, 233, affd on opn below 31 NY2d 713). This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation disclosures to a spouse may be induced by absolute confidence in the marital relationship (see, People v Fields, supra; People v Dudley, 24 NY2d 410, 414; People v Oyola, 6 NY2d 259). Here, the circumstances of defendant’s call to his wife shortly after his surrender, coupled with the substance of his declarations to her, reveal that his statements were prompted by the affection, confidence and loyalty engendered by the marital relationship, and that he "clung to the illusion that they could still reconcile” (People v Fediuk, 104 AD2d 1003, 1004). The communications thus fall within the marital privilege. Nor can the error in admitting this testimony be considered harmless, for defendant’s absence of remorse was relied upon both by the People’s psychiatric expert in his evaluation of defendant’s mental state and by the prosecutor in his summation, which made specific reference to the wife’s testimony regarding the telephone conversation.

Defendant’s cross appeal must be dismissed because the order of the Appellate Division was not adverse to him (CPL 450.90 [1]), but we have considered his arguments in support of affirmance (CPL 470.35 [2] [b]), and we find them without merit. We note in particular that once defendant announced that he would introduce expert psychiatric testimony, although there was no specific statutory basis at that time (see, CPL 250.10 [3] subsequently enacted), the court in the circumstances acted within its discretion in granting the prosecution’s application to have defendant submit to a psychiatric examination. Further, the testimony of the People’s expert witness was not incredible as a matter of law, and given the conflicting testimony the defense of extreme emotional disturbance was not established as a matter of law.

Alexander, J.

(dissenting in part). In my view, the evidence in this case conclusively rebuts any presumption that the communication between the defendant and his estranged wife, which the majority and the court below would exclude as a "confidential communication”, was induced by any confidence in the marital relationship. The communication therefore was not privileged and was properly received in evidence. Accordingly, I respectfully dissent to the extent of voting to reverse the order of the Appellate Division and reinstate the judgment of conviction on the People’s appeal.

Some nine days after having shot and killed his estranged wife’s lover, the defendant returned from California where he had fled after the shooting with one of the children of the marriage. He telephoned his wife who initially was reluctant to speak to him but then relented. During their conversation she asked him: "Andy, why did you do that?”, to which he responded "Because I love you * * * that’s to prove my love to you.” She then asked him where he had gone after the shooting. He told her he had gone to California and that when he arrived there he called his mother and was told to come right back. His wife then asked him whether or not it "bother[ed] [him] that [he] killed somebody?” — "Don’t you have nightmares or anything?” He replied "[n]o it doesn’t bother me at all. That’s funny my mother asked me the same thing.”

Despite the fact that the defendant and his wife had been separated for some five months; that she had been forced to take shelter in a battered women’s residence following their separation; that she had told him on more than one occasion that she no longer loved him; that on the day of the shooting he had punched her and chased her around the street and had later returned with a rifle which he fired at her while she was holding their child as a shield, narrowly missing her and telling her to "put the baby aside” and threatening to end his wife’s life "once and for all”, the majority flatly concludes that "the circumstances of [his] call to his wife shortly after his surrender, coupled with the substance of his declarations to her, reveal * * * that he 'clung to the illusion that they could still reconcile’ ” (majority mem, pp 883-884). In my view, neither a fair reading of the conversation nor any other circumstances revealed by this record fairly supports such a conclusion.

It has long been the rule, only recently reaffirmed by this court that the marital privilege is "[n]ot protective of all communications [between husband and wife, and] attaches only to those statements made in confidence * * * 'that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship’ ” (Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73; see also, Parkhurst v Bedell, 110 NY 386; Poppe v Poppe, 3 NY2d 312). A communication between husband and wife is said to be confidential if expressly made so "or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason.” (McCormick, Evidence § 84, at 172 [1954].)

There is nothing in the content of the conversation that would indicate that it would not have been made but for " 'the absolute confidence in, and induced by, the marital relationship’ ” (People v Dudley, 24 NY2d 410, 414; People v Melski, 10 NY2d 78, 80) particularly where it appears that a like conversation may well have taken place between defendant and his mother; nor does that content indicate that the defendant "clung to the illusion that they could still reconcile.” And while it is true, as observed by the majority, that the mantle of confidentiality is not cast off by the mere fact that the parties are not living together at the time of the communication (People v Fields, 38 AD2d 231, 233, affd on opn below 31 NY2d 713) it nevertheless must appear that the communication was induced by an absolute confidence in the marital relationship. (People v Dudley, 24 NY2d 410, 414, supra; People v Melski, 10 NY2d 78, supra.) Indeed the very purpose of the privilege is to foster exchanges between spouses that would not have been made but for the absolute confidence in the marital relationship. (4 Benders New York Evidence § 245.03 [1] [a], at 446.1 [1982].) Here, there is no factual predicate in this record to support the conclusion that defendant "clung to the illusion that they could still reconcile.” The circumstances here are unlike the situation in Fields (supra), where defendant telephoned his wife shortly after the shooting to tell her about it and to seek refuge in her apartment or the situation in People v Oyola (6 NY2d 259), where defendant telephoned his wife shortly after having been arrested at her instigation for impairing the morals of their infant daughter, to confess his crime and to express his remorse. The circumstances in those cases afforded a factual basis for concluding that "the possibility of reconciliation ha[d] not been negated”. (People v Fields, 38 AD2d 231, 233, supra.) Here, by contrast, defendant’s wife had made it clear to him on repeated occasions that she did not love him anymore. There is no evidence that he ever expressed a desire to or made any effort at a reconciliation. It was his wife’s testimony that throughout the months of their separation only on one occasion in June, did he protest any continuing love for her. The record makes clear that his continued contact with the family was because of his love for and desire to be protective of their two daughters, not because of any hope of reconciliation, or a view that the marriage was far from dead.

We have, on numerous prior occasions observed that "[w]hether a statement comes within the marital privilege is a preliminary question for the court, and involves a determination that must be made on an ad hoc basis” (see, Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73, supra, and cases cited therein). Here the trial court determined that the communication was not protected by the marital privilege and a careful examination of this record fully supports that determination.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Titone concur in memorandum; Judge Alexander dissents in part and votes to reverse on the People’s appeal in an opinion in which Judge Meyer concurs.

On the People’s appeal, order affirmed. Defendant’s cross appeal dismissed.

      . That defendant’s mother may have asked him the same question is irrelevant to the issue before us, for there is nothing in the record to indicate that defendant made any response, except when his spouse asked him that question during his call declaring his love for her.

      . While the dissent would distinguish People v Fields (38 AD2d 231, 233, affd on opn below 31 NY2d 713) on its facts, the marital privilege was applied there in even more extreme circumstances: the husband had established residence with another woman and told his wife that his purpose in coming to see her — when the critical admissions were made — was to kill her. A test for privilege that would require a court to evaluate the actual viability of a marriage presents pragmatic difficulties, as noted in Fields, where we declined to adopt such a test. Here, for example, the dissent must speculate on its own (no such finding having been made below) as to whether defendant’s declarations of love to his wife in the telephone conversation, and at the time of and during their separation, as well as his continuing contacts with his family, were motivated by feeling for the children or the marriage.

       The record does not reflect what answer, if any defendant made to his mother’s query, but it is significant that he recounted to his wife that she "asked [him] the same thing.” It thus would appear that defendant had a conversation with his mother regarding his lack of remorse, which is the very subject matter now claimed to be protected by the marital privilege, there being no issue as to whether or not he shot and killed the victim.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Willis Moye, Appellant.
    Argued October 17, 1985;
    decided November 21, 1985

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

At defendant’s murder trial, the People introduced evidence that the victim, Gloria Blocken, had died in the early morning of November 21, 1979 as a result of decapitation and evisceration. Her headless torso was found wrapped in rags in the bathtub of her apartment, and a fire had been set in a nearby closet. Her head was found in a pillowcase in an adjacent backyard. A medical examiner testified that at the time of her death, Blocken’s blood alcohol level was .25%.

One month later, Detective Martin Mak interviewed defendant, who admitted that he had killed Blocken. According to Mak’s testimony at trial, defendant said that he thought he was a homosexual because he had difficulty having sexual relations with women, and his friend advised him "that if anybody can get you an erection, it would be Gloria Blocken.” Defendant and his friend went to Blocken’s apartment but left after a time, and defendant later returned there alone and attempted to have sexual intercourse with her. When he was unable to do so, she began laughing at him. Although he asked her to stop, she refused. He then slashed her across the chest with his knife. "She fell, and * * * [defendant] said he went over and cut her head off. He said: I just went crazy and cut her head off. And then he said: I kept slashing and slashing and slashing.” After Detective Mak placed him under arrest, defendant said, "I need help. I would like to have some help.”

Later the same day, defendant gave a statement to an Assistant District Attorney, which was transcribed and read into the record at trial. Defendant told him that, after drinking, he attempted to have sexual intercourse with the victim. When he was unable to do so, she started poking at him, saying "go on little boy. I don’t need you.” Defendant "got mad,” cut her on the breast and throat, and then started cutting her up. After decapitating her, he moved her body to the bathtub, set a fire in a closet next to the bathroom, and left the apartment by a fire escape carrying her head. He threw the head into a nearby backyard and went home. When asked whether he had ever been impotent before, defendant responded, "When I’m drinking.” However, according to defendant, no woman had ever laughed at him as Blocken had. "[S]eems like something snapped inside me, you know, bananas.”

After both sides rested, defendant asked the court to charge extreme emotional disturbance (Penal Law § 125.25 [1] [a]) and intoxication (Penal Law § 15.25), but both requests were rejected on the ground that the evidence introduced was insufficient to justify submission of those issues to the jury. The Appellate Division affirmed defendant’s conviction of second degree murder. The only issue before us is whether there was sufficient evidence to warrant submission of the defense of extreme emotional disturbance to the jury for its determination.

Where the issue on appeal is whether a particular defense should have been charged to the jury, the evidence is viewed in the light most favorable to the defendant (People v Farnsworth, 65 NY2d 734). For the defendant to be entitled to a charge on extreme emotional disturbance, sufficient evidence must be presented for the jury to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied (People v Walker, 64 NY2d 741; see also, People v Cable, 96 AD2d 251, 260-261, revd on other grounds 63 NY2d 270, 282). The defense requires proof of both a subjective element (that defendant did in fact act under the influence of extreme emotional disturbance) and an objective element (that there was reasonable explanation or excuse for the emotional disturbance). The determination whether there was reasonable excuse or explanation for the disturbance must be made by viewing "the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable”. (People v Casassa, 49 NY2d 668, 679; see also, ALI Model Penal Code § 210.3.) Psychiatric evidence is not necessary to establish the defense (see, Matter of Lee v County Ct., 27 NY2d 432, 442).

Defendant’s savage acts of mutilating and decapitating his victim, coupled with his statements to the police and District Attorney that "something snapped” inside him when she mocked and taunted him, that he went "bananas” and he needed help, were evidence of a loss of self-control associated with the defense of extreme emotional disturbance (see, People v Walker, 64 NY2d 741, 743, supra). Furthermore, there was sufficient evidence for submission to the jury — which a rational jury might have accepted or rejected — of an explanation or excuse for defendant’s emotional state, in his recounting of the victim’s continued ridicule and taunting about his impotence. In these circumstances, defendant’s request for the charge of extreme emotional disturbance should have been granted so that the jury might weigh the evidence presented as to both the subjective and objective elements of the defense, and the failure to do so requires a new trial.

In view of our decision ordering a new trial, we need not reach defendant’s contention that on the evidence presented at his first trial he was entitled to a jury instruction on intoxication.

Jasen, J.

(dissenting). The question presented upon this appeal is whether the trial court erred, as a matter of law, in finding that defendant had not set forth sufficient credible evidence to warrant a jury charge as to the affirmative defense of extreme emotional disturbance. The view of the majority, that submission of irreconcilably conflicting evidence of extreme emotional disturbance discharges defendant’s burden of proof and compels a charge of the defense of extreme emotional disturbance, blurs the distinction embodied in statute between affirmative and other defenses, and impermissibly reduces defendant’s burden of proof and persuasion. Accordingly, I respectfully dissent.

While the Model Penal Code would, as a matter of policy, place the burden of proving the nonexistence of most affirmative defenses, including extreme emotional disturbance, upon the prosecution once the defendant has come forward with some evidence that the defense is present, New York has specifically rejected this view. New York has classified the defense of extreme emotional disturbance as an affirmative defense (Penal Law § 125.25 [1]), thus placing upon the defendant the "burden of establishing such a defense by a preponderance of the evidence” (Penal Law § 25.00 [2]). Use of the phrase "burden of establishing” makes it clear, because it could have no other meaning, that the defendant carries both the burdens of going forward with the evidence and ultimate persuasion. (People v Laietta, 30 NY2d 68, 74, cert denied 407 US 923.) The placing of the burden of proof upon defendant is fair because of defendant’s unique knowledge or access to the evidence tending to show his mental state. The burden of proof, and the risk of nonpersuasion, rests squarely upon defendant.

In my view, there must be a threshold determination by the trial court whether defendant has set forth sufficient credible evidence from which a jury may find, by a preponderance of the evidence, that the elements of the affirmative defense have been satisfied. This burden is not satisfied by submitting some evidence that the defense exists, but, as noted by the Supreme Court, facts making out the defense must be established by the defendant with "sufficient certainty” before the affirmative defense may be charged. (Patterson v New York, 432 US 197, 207, affg 39 NY2d 288.) In this case, defendant sought the charge of extreme emotional disturbance, not upon psychiatric testimony, as is the custom (see, e.g., People v Casassa, 49 NY2d 668, 674), but upon self-serving, conflicting statements from which a likelihood of rationality could well have been inferred by the trial court. The submission of irreconcilably conflicting evidence to the jury "would have invited the jury to impermissibly speculate as to the defendant’s state of mind” at the time of the murder. (People v Walker, 64 NY2d 741, 743.)

In view of the conflicting and unreliable nature of the evidence advanced by defendant in support of his affirmative defense, and recognizing that defendant’s volitional conduct precipitated the murder, defendant has failed to establish a credible basis from which a jury could rationally conclude that the elements of the affirmative defense of extreme emotional disturbance were present. Inasmuch as the two statements relied upon by defendant were "conclusory and patently ambiguous”, defendant was required to come forward with psychiatric or other evidence in order to satisfy the elements of the affirmative defense. (People v P. J. Video, 65 NY2d 566, 571, cert granted — US —, 106 S Ct 244 [Oct. 21, 1985].) Absent such clarification, I cannot accept the view, advanced by the majority today, that the trial court erred, as a matter of law, in refusing to charge the jury the affirmative defense of extreme emotional disturbance, and would, therefore, affirm the order of the Appellate Division.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in memorandum; Judge Jasen dissents and votes to affirm in an opinion.

Order reversed, etc.

       In determining whether to submit the affirmative defense of extreme emotional disturbance to the jury, it is for the court initially to decide if there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established. Here this threshold requirement was met. It is then for the jury to resolve inconsistencies in testimony and reach conclusions as to the "volitional, deliberate and calculated” nature of defendant’s acts (dissent, at p 892, n 2).

      . Compare, Penal Law § 25.00 (1), which provides that where a "defense” is raised at trial, the People have the burden of disproving such defense beyond a reasonable doubt.

      . Defendant’s statements to authorities represented the sole evidence advanced by defendant in support of his contention that he committed murder while in a state of extreme emotional disturbance. In one statement, defendant claimed that the victim became mad at him for his failure to obtain an erection, and in the other statement, indicated that the victim laughed at his impotency. Defendant’s statements were further inconsistent as in one instance defendant claimed the victim initiated contact with him with his carving knife, and in the other statement, he indicated that he reached into his coat, withdrew the knife, and began slashing the victim.
      Not only were defendant’s statements inconsistent, they tended to demonstrate rationality. By noting that he visited the victim’s apartment at about "4 or 5 o’clock”, remained there until 7 o’clock, and then walked a quarter of a mile away with a companion, defendant demonstrated an awareness of time and distance. Defendant attempted to conceal the victim’s identity by separating the head from the body, and disposing of the head. Defendant attempted to conceal his crime by wrapping the victim’s body in rags, placing it in the bathtub, and setting fire to a neighboring closet. Defendant’s conduct could well have been viewed as volitional, deliberate and calculated.
      In theory, the affirmative defense permits a defendant to establish that his criminal conduct was caused by circumstances beyond his control. (Comment, Affirmative Defenses Under New York’s New Penal Law, 19 Syracuse L Rev 44, 45.) In this case, defendant knew that he could not engage in sexual intercourse when drinking, yet he drank for a number of hours before attempting relations with his victim. The record does not indicate the reason why defendant was in possession of a carving knife, the murder weapon, during his second visit to the victim’s apartment, nor at what time defendant came into possession of the murder weapon.

      . The majority notes that it was for the jury to "resolve inconsistencies in testimony” (majority mem, at p 890, n). Defendant did not testify at trial as to his mental state at the time he committed the murder. Detective Mak and an Assistant District Attorney recounted their conversations with defendant, and defendant simply relied upon the indirect and secondhand evidence supplied by these two individuals in support of his affirmative defense. Under these circumstances, any attempt by the jury to resolve inconsistencies between defendant’s statements would have been based upon sheer speculation.


text:
    In the Matter of Market Square Properties, Ltd., Appellant, v Town of Guilderland Zoning Board of Appeals, Respondent.
    Decided November 21, 1985

      APPEARANCES OF COUNSEL

      John W. Clark for appellant.

      William F. Sheehan, Assistant Town Attorney, for respondent.

      David E. Peebles and Elletta Sangrey Callahan for Guilder-land Central School District, amicus curiae.

      Eric J. Fenton for Guilderland Chamber of Commerce, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Respondent’s determination that appellant’s application for a special use permit did not meet town zoning ordinance standards, in that the proposed shopping center would create undue traffic congestion and hazard to the nearby school, is sufficiently supported by the record (see, Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801, 802). While expert opinion regarding traffic patterns may not be disregarded in favor of generalized community objections (see, Green v Lo Grande, 96 AD2d 524, appeal dismissed 61 NY2d 758), here there was other basis in the record for respondent’s determination, including evidence from the expert that the shopping center would generate significant increased traffic, to which evidence respondent’s discretion and commonsense judgments might be applied in accordance with the town ordinance (see, Cummings v Town Bd., 62 NY2d 833, 835; 2 Anderson, New York Zoning Law and Practice § 24.15, at 294 [3d ed]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

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


text:
    Arthur Bell, an Infant, by his Mother and Natural Guardian, Carole Bell, et al., Appellants, v Anthony R. Perrino et al., Respondents.
    Submitted October 28, 1985;
    decided November 21, 1985
   Motion for leave to appeal denied as unnecessary (see, Dalrymple v Shults Chevrolet, 39 NY2d 795).


text:
    In the Matter of Kirk-Astor Drive Neighborhood Association et al., Respondents, v Town Board of the Town of Pittsford, Appellant, and Gary F. DeBlase et al., Intervenors-Appellants.
    Submitted September 30, 1985;
    decided November 21, 1985
   Motion to dismiss appeal granted and appeal dismissed for mootness, with costs and $20 costs of motion.


text:
    George V. Whalen, Respondent, v Contracting Plumbers Cooperative Restoration Corporation, Appellant.
    Decided November 21, 1985
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601 [a] [i]).


text:
    In the Matter of Amy Lifson, Appellant, v Board of Education of the Nanuet Public Schools et al., Respondents.
    Decided November 26, 1985

      APPEARANCES OF COUNSEL

      Katherine A. Levine for appellant.

      Raymond G. Kuntz for Board of Education of the Nanuet Public Schools, respondent.

      James K. Riley for Board of Cooperative Educational Services of Rockland County, 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, without costs. Respondent properly denied petitioner "Jarema Act credit” (Education Law § 2509 [1] [a]) for two incomplete terms of service (see, Matter of Motak, 16 Ed Dept Rep 358, 359-360).

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


text:
    In the Matter of Wesley R. Edwards.
    Decided November 26, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Wesley R. Edwards is suspended, with pay, effective immediately, from his office of Justice of the Stephentown Town Court, Rensselaer County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Thomas Forman, Respondent, v New York City Housing Authority, Appellant.
    Decided November 26, 1985

      APPEARANCES OF COUNSEL

      Charles E. Williams, III, and Margaret K. Karfiol for appellant.

      Bernard C. Durham for respondent.
   OPINION OF THE COURT

On review of the submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and determination of the New York City Housing Authority reinstated for the reasons stated in the dissenting memorandum by Justice David Ross at the Appellate Division (110 AD2d 516).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


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    In the Matter of Otsego County Department of Social Services, on Behalf of Randi F., Respondent, v Raymond G., Appellant.
    Decided November 26, 1985

      APPEARANCES OF COUNSEL

      Anthony "Toots” La Bella for appellant.

      Michael V. Coccoma, County Attorney, 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 of the Family Court appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 919). The weight of the credible evidence more nearly comports with the findings by the Appellate Division.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Respondent, v Robert Myrick, Appellant.
    Argued October 15, 1985;
    decided November 26, 1985

      APPEARANCES OF COUNSEL

      Deborah M. Reyher and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Burton N Lipshie and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that a witness’s testimony concerning the intruder’s description should have been excluded from evidence because the People failed to supply him with statutory pretrial notice of their intention to offer identification testimony (CPL 710.30 [1]) is without merit on these facts because there was evidence the witness gave the description prior to any potentially suggestive showup. Such observation testimony is not within the ambit of CPL 710.30 (see, Memorandum of Assemblyman Weprin, 1976 NY Legis Ann, at 29; cf. People v Sanders, 66 NY2d 906 [decided herewith]).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed in a memorandum.


text:
    In the Matter of Lilton Jones, Appellant, v Joseph Kennedy, as Superintendent of Mt. McGregor Correctional Facility, et al., Respondents.
    Decided November 26, 1985

      APPEARANCES OF COUNSEL

      Lois Goland for appellant.

      Robert Abrams, Attorney-General (Robert Hermann, Peter H. Schiff and Martin A. Hotvet of counsel), for respondents.
   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 reversed, without costs, and matter remitted to Supreme Court, Saratoga County, with directions to dismiss the proceeding for mootness.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Respondent, v James Sanders, Appellant.
    Argued November 12, 1985;
    decided November 26, 1985

      APPEARANCES OF COUNSEL

      David P. Friedman and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Rosalyn H. Richter and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

By allowing the witness to testify at trial as to his observations at the scene of the crime, including his description of the person he saw in the hallway with a gun, the trial court did not violate the pretrial ruling prohibiting the witness from making an in-court identification. As found by the Appellate Division, the witness gave his description to the police prior to the suggestive identification procedures at the station house, and thus the description itself was not tainted by those procedures.

We also agree with the finding that defendant was not prejudiced by the prosecutor’s opening remarks.

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

Order affirmed in a memorandum.


text:
    Spancrete Northeast, Inc., Appellant, v Travelers Indemnity Company, Respondent.
    Decided November 26, 1985
    APPEARANCES OF COUNSEL

      Harry R. Hayes, III, for appellant.

      Leslie F. Couch 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), appeal pursuant to CPLR 5601 (d) dismissed, without costs, upon the ground that the prior order of the Appellate Division sought to be reviewed, upon which jurisdiction is predicated, although denominated an order of reversal, is an order of modification and the modification is not in a respect "which is within the power of the court of appeals to review” (CPLR 5601 [a] [iii]; see, Matter of Von Bulow, 63 NY2d 221).


text:
    Southeast Bank, N. A., as Personal Representative of the Estate of Tennessee Williams, Deceased, Respondent, v Jack Lawrence et al., Appellants.
    Argued October 7, 1985;
    decided November 26, 1985

      APPEARANCES OF COUNSEL

      David Blasband, Nancy F. Wechsler and Robert C. Harris for appellants.

      Leonard M. Marks, Jane G. Stevens and Beth M. Schillinger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the complaint dismissed, the preliminary injunction vacated, and the question certified answered in the negative.

Plaintiff, a Florida-based bank acting as personal representative of the estate of the late playwright Tennessee Williams, a Florida domiciliary at the time of his death, commenced this action to enjoin defendants, the owners of a theatre located on West 48th Street in Manhattan, from renaming the theatre the "Tennessee Williams.” In its complaint, plaintiff alleges, among other things, that the renaming of the theatre without its consent violates the decedent’s descendible right of publicity.

Special Term granted plaintiffs motion for a preliminary injunction and denied defendant’s cross motion to dismiss the complaint. That order has been affirmed by the Appellate Division, First Department, which granted leave to appeal on a certified question. We now reverse.

The parties have assumed that the substantive law of New York is dispositive of the appeal and have addressed Florida law only tangentially. Both Special Term and the Appellate Division decided the case under what they believed to be New York law. In doing so, all have overlooked the applicable choice of law principle (cf. James v Powell, 19 NY2d 249, 256), followed by both New York and Florida, that questions concerning personal property rights are to be determined by reference to the substantive law of the decedent’s domicile (EPTL 3-5.1 [b] [2]; [e]; Matter of Fabbri, 2 NY2d 236, 239; Quintana v Ordono, 195 So 2d 577 [Fla App], cert discharged 202 So 2d 178 [Fla]; In re Tim’s Estate, 161 So 2d 40 [Fla App], decree quashed on other grounds 180 So 2d 161 [Fla], judgment conformed to 180 So 2d 502 [Fla App], cert denied sub nom. Rudawski v Florida, 384 US 952; see also, Restatement [Second] of Conflict of Laws § 263; Weintraub, Conflict of Laws §§ 2.13, 8.25 [2d ed]). For choice of law purposes, at least, rights of publicity constitute personalty (see, Acme Circus Operating Co. v Kuperstock, 711 F2d 1538, 1541; Groucho Marx Prods. v Day & Night Co., 689 F2d 317; Factors Etc. v Pro Arts, 652 F2d 278, cert denied 456 US 927).

Under Florida law (Fla Stats Ann § 540.08), only one to whom a license has been issued during decedent’s lifetime and the decedent’s surviving spouse and children possess a descendible right of publicity, which is extremely limited and which Florida courts have refused to extend beyond the contours of the statute (see, Loft v Fuller, 408 So 2d 619 [Fla App], review denied 419 So 2d 1198 [Fla]). Since Tennessee Williams did not have a surviving spouse or child and did not issue a license during his lifetime, plaintiff possesses no enforceable property right. In light of this holding, we do not pass upon the question of whether a common-law descendible right of publicity exists in this State.

We do not reach the merits of the remaining causes of action asserted in the complaint because plaintiff has no standing to assert them.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

Order reversed, etc.


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    Guillermo Rivera, Respondent, et al., Plaintiff, v City of New York, Appellant.
    Argued November 19, 1985;

    decided November 26, 1985
   Appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division was not on a question of law (CPLR 5601 [a] [i]).


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    Stephen Kozak, Respondent, v Nancy S. Kozak, Appellant.
    Decided November 26, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant has failed to demonstrate that an appeal lies as of right pursuant to CPLR 5601.


text:
    In Rem Tax Foreclosure Action 31, Borough of Manhattan. In the Matter of Vernita Nuey, Appellant, v Finance Administration of the City of New York et al., Respondents.
    Submitted November 18, 1985;
    decided November 26, 1985
   Motion to vacate the Court of Appeals October 22,1985 order of dismissal, etc., denied. [See, 66 NY2d 759.]


text:
    Mary Robinson, Respondent, v Parkway Private Cab Service et al., Defendants, and Filomena Villanova, Appellant.
    Submitted October 21, 1985;
    decided November 26, 1985
   Motion, insofar as it seeks leave to appeal from the Appellate Division orders of February 19, 1985 and June 6, 1985 dismissed as untimely. Insofar as it seeks leave to appeal from the Appellate Division order of September 17, 1985, motion dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Twenty dollars costs and necessary reproduction disbursements to the plaintiff-respondent.


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    In the Matter of Edward A. Wagner, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided November 26, 1985
   Appeal from the order entered on February 19, 1985 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie because a prior appeal from that order was dismissed for failure to prosecute (65 NY2d 812). (See, Bray v Cox, 38 NY2d 350.)

Appeal from the order entered on June 18, 1985 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


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    Key International Manufacturing, Inc., Appellant, v Irwin Stillman, Respondent, and Manufacturers Hanover Trust Company, Appellant.
    Argued November 18, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      J. Stanley Shaw and Jesse I. Levine for Key International Manufacturing, Inc., appellant.

      Richard B. Cohen and Robert M. Rosenblith for Manufacturers Hanover Trust Company, appellant.

      Brian Michael Seltzer and Kenneth L. Gartner for respondent.
   OPINION OF THE COURT

Order modified, with costs to defendant Manufacturers Hanover Trust against defendant Stillman, by dismissing so much of Stillman’s cross claim as seeks more than the actual amounts due under the letters of credit plus interest, and, as so modified, affirmed, with costs to Stillman against plaintiff. Question certified answered in the negative. We agree with so much of the majority opinion by Justice (now Judge) Titone as pertains to plaintiffs liability to Stillman. However, Stillman’s cross claim against Manufacturers Hanover Trust, predicated upon its refusal to honor the cashier’s checks issued as payment of the letters of credit, must be dismissed insofar as it seeks more than the actual amounts due under the letters of credit plus interest. To hold the bank liable for such sum as a result of compliance with a judicial restraining order would be to place it on the horns of an unacceptable dilemma.

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


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    Sayward Mazur, Appellant, v Max E. Greenberg, Cantor & Reiss, Respondent.
    Argued November 12, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Sayward Mazur, pro se, Gerald I. Carp and Gary L. Rubin for Sayward Mazur, appellant.

      Julius L. Schapira, Saul Weprin and Jerome Reiss for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. The weight of the evidence more nearly comports with the findings by the Appellate Division.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Hermina Garson, Appellant, v Lowell S. Rapping, as Executor of Percy Garson, Deceased, et al., Respondents.
    Argued November 13, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      John R. Kelligrew, Cornelius D. Murray and Salvatore D. Ferlazzo for appellant.

      Jonathan Lovett for Lowell S. Rapping, as Executor of Percy Garson, deceased, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 726). We add only that the cpurt properly applied the limited exception to the rule of strict compliance with the requirements of the Business Corporation Law (see, e.g., Matter of Rye Psychiatric Hosp. Center, 66 NY2d 333) recognized in Zion v Kurtz (50 NY2d 92, 102, rearg denied 50 NY2d 1060).

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


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    The People of the State of New York, Respondent, v Joseph Glover, Appellant.
    Argued November 14, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Andrew C. Fine and William E. Hellerstein for appellant.

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

Order affirmed for the reasons stated in the memorandum at the Appellate Division (107 AD2d 821). In addition, we would note that unlike People v Warren (66 NY2d 831) the defendant here came dangerously close to the accomplishment of the act in view of his seizure of the victim and the circumstances surrounding the seizure.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


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    Fairland Amusements, Inc., Appellant, v State Tax Commission, Respondent.
    Argued November 15, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Gabriel J. Ferber for appellant.

      Robert Abrams, Attorney-General (Francis V Dow, Robert Hermann and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and judgment granted in favor of plaintiff declaring that the sale of tickets for the use of plaintiffs rides is not subject to sales tax pursuant to Tax Law § 1105 (f) (1). We agree with the dissenters below that there is an ambiguity in the statutory scheme which must be construed most strongly in favor of the taxpayer and against the government, and that defendant’s reliance upon its own regulotion is misplaced because the regulation runs counter to the statute it was intended to implement.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


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    In the Matter of Joseph E. Myers.
    Decided December 17, 1985
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Joseph E. Myers is suspended with pay, effective immediately, from his office of Justice of the Norfolk Town Court, St. Lawrence County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


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    The People of the State of New York, Respondent, v Errol Prince, Appellant.
    Argued November 15, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Howard Finkelstein for appellant.

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (106 AD2d 521).

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


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    In the Matter of Miller Brewing Company, Appellant, v State Division of Human Rights et al., Respondents.
    Decided December 17, 1985

      APPEARANCES OF COUNSEL

      David Rees Davies for appellant.

      Martin N Silberman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be - reversed, without costs, and the matter remitted for further proceedings.

We agree with the Appellate Division that complainants, former employees of Better Brands, Inc., established a prima facie showing that they had been subject to employment discrimination by Miller based upon their age. The Appellate Division erred, however, in holding that Miller failed to rebut the presumption of discrimination. Establishment of the prima facie case by complainants shifted the burden to Miller to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. (Matter of Pace Coll, v Commission of Human Rights, 38 NY2d 28, 38; Texas Dept. of Community Affairs v Burdine, 450 US 248, 254-256.)

An examination of the record indicates that the general sales manager of Better Brands, who also had the responsibility for the selection of former Better Brands’ employees for employment, had articulated legitimate, independent and nondiscriminatory reasons to support the decision not to hire complainants. Specifically, the general sales manager testified: "The only directive that I received was to pick the strongest proficient people with * * * merchandising skills and techniques * * * I utilized my personal knowledge and the knowledge of my sales managers on those that were aggressive and ambitious, strong merchandisers that had demonstrated their ability to merchandise over the last twelve, fourteen months.” Thus, the record contains evidence that Miller’s employment decision was predicated upon lawful business considerations of merchandising proficiency, aggressiveness, and experience, which the Division of Human Rights improperly declined to weigh against the prima facie case of employment discrimination. Accordingly, this matter should be remitted to the Division of Human Rights to afford complainants the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” (Texas Dept. of Community Affairs v Burdine, 450 US 248, 253, supra, citing McDonnell Douglas Corp. v Green, 411 US 792, 804.)

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone 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 matter remitted to the Appellate Division, Second Department, with directions to remand to the State Division of Human Rights for further proceedings in accordance with the memorandum herein.


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    Dental Society of the State of New York, Appellant, v New York State Tax Commission, Respondent.
    Decided December 17, 1985

      APPEARANCES OF COUNSEL

      Lawrence M. Monat for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Betsy Broder 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, with costs, for reasons stated in the memorandum at the Appellate Division (110 AD2d 988).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of 7-11 Associates et al., Appellants, v Board of Standards and Appeals of the City of New York, Respondent.
    Decided December 17, 1985

      APPEARANCES OF COUNSEL

      Stanford M. Singer for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Francis F. Caputo 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, with costs, for reasons stated in the memorandum at the Appellate Division (112 AD2d 100).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of Faith Tyson, Appellant, v Fritz Hess, as Superintendent of East Syracuse-Minoa Central School District, et al., Respondents.
    Argued November 11, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Beverly A. Michaels for appellant.

      Dennis G. O'Hara and Susan T Johns for respondents.

      Henry F. Sobota for New York State School Boards Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Whether or not there was a valid contract of employment— a question we need not reach — as an unclassified employee petitioner was not in any event entitled to a pretermination hearing under Civil Service Law § 75. As for her constitutional right, "all the process that is due is provided by a pretermination opportunity to respond, coupled with posttermination” review procedures (Cleveland Bd. of Educ. v Loudermill, 470 US —, —, 105 S Ct 1487, 1496). Petitioner does not dispute that she was given the opportunity to respond in a conference with the Supervisor of Transportation on the day of the incident which resulted in her termination and again two days later, that she thereafter failed to attend a third hearing scheduled in response to her appeal of the notice of termination she received, and that she failed to grieve the matter under the collective bargaining agreement governing noninstructional employees.

At most, therefore, petitioner was entitled to article 78 review of the measure of discipline imposed and to sue for breach of contract in terminating her without cause prior to the end of the 1983-1984 school year. But she admitted in the hearing conducted by respondent and does not deny in the papers on this proceeding that she let a four-year-old prekindergarten child off at the child’s home, rather than at the home of the babysitter, some two miles distant, without checking either the route sheet or the tag worn by the child, both of which indicated the place the child was to be let off. Under those circumstances, termination of petitioner’s employment was not "so disproportionate to the offense as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., 34 NY2d 222, 237). Nor is there reason for us to convert the proceeding pursuant to CPLR 103 to a breach of contract action and remand for trial, for in view of petitioner’s admissions respondent would be entitled to summary judgment in any such action.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, without costs, in a memorandum.


text:
    Menard M. Gertler, Appellant, v Joseph Goodgold et al., Respondents.
    Argued November 12, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Maurice N Nessen for appellant.

      Ada Meloy and S. Andrew Schaffer for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (107 AD2d 481). We add with respect to the Statute of Limitations question that this is not a case, such as Mundy v Nassau County Civ. Serv. Commn. (44 NY2d 352), where by withdrawing its determination the respondent created an impression of nonfinality with respect to plaintiff’s allocated space. The letter of March 11, 1982 ended with the statement that "reorganizational plans are already firm.” That defendants continued to negotiate with plaintiff thereafter did not extend the four-month period of limitations (CPLR 217) (Matter of Lubin v Board of Educ., 60 NY2d 974).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of Roman Catholic Diocese of Albany et al., Respondents, v New York State Department of Health et al., Appellants, and Upper Hudson Planned Parenthood, Inc., Intervenor-Appellant.
    Argued November 13, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Deborah Bachrach, Robert Hermann, Rosemarie Rhodes, Lawrence S. Kahn and Martha J. Olson of counsel), for New York State Department of Health and another, appellants.

      Kenneth J. Connolly for Health Systems Agency of Northeastern New York, Inc., appellant.

      Gerald H. Katzman and Miriam M. Netter for intervenorappellant.

      Michael L. Costello, David A. Ruffo, Kevin A. Luibrand and R. Christopher Demph for respondents.

      Madeline Kochen for New York Civil Liberties Union and another, amici curiae.

      Anne E. Simon and Nadine Taub for American Association of University Women and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

We assume, without deciding, that petitioners had standing to bring this proceeding (Association of Contr. Plumbers v Fruchtman, 64 NY2d 808, 810; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 104; Jainchill v Citibank, 62 NY2d 739, 740). On the merits, however, we agree with Justice Howard A. Levine, the dissenter at the Appellate Division, that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation required by NY Constitution, article IV, § 8 to be filed in the office of the Department of State. We agree also, for the reasons stated by the dissenting Justice (109 AD2d, at p 148), that the 50% guideline employed by the Department of Health in passing on the applications involved in the present proceeding did not constitute and was not applied as such a rule, and in view of that conclusion do not reach the constitutional arguments presented by the intervener and amici.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

Order reversed, etc.


text:
    Harry Abrams, Appellant, v Enrico Donati, Respondent, et al., Defendants.
    Decided December 17, 1985

      APPEARANCES OF COUNSEL

      Emanuel Baetich for appellant.

      Ronald J. Offenkrantz for respondent.
   OPINION OF THE COURT

Memorandum.

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

For a wrong against a corporation a shareholder has no individual cause of action, though he loses the value of his investment or incurs personal liability in an effort to maintain the solvency of the corporation (Citibank v Plapinger, 66 NY2d 90, 93, n; General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, appeal dismissed 63 NY2d 676; Fifty States Mgt. Corp. v Niagara Permanent Sav. & Loan Assn., 58 AD2d 177). Exceptions to that rule have been recognized when the wrongdoer has breached a duty owed to the shareholder independent of any duty owing to the corporation wronged (General Rubber Co. v Benedict, 215 NY 18 [director of parent corporation who acquiesced in the misuse of funds of its subsidiary; action by parent maintainable]; Hammer v Werner, 239 App Div 38 [issuance of treasury stock to directors at an inadequate price and without affording plaintiff the right to purchase his proportionate part; individual action maintainable]). But allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually (see, e.g., Niles v New York Cent. & Hudson Riv. R. R. Co., 176 NY 119; Carpenter v Sisti, 45 AD2d 529, 531). A complaint the allegations of which confuse a shareholder’s derivative and individual rights will, therefore, be dismissed (Greenfield v Denner, 6 NY2d 867, revg on dissenting opn of Breitel, J., 6 AD2d 263, 268; Brock v Poor, 216 NY 387; see, Witherbee v Bowles, 201 NY 427, 433), though leave to replead may be granted in an appropriate case (Greenfield v Denner, 6 AD2d, at p 271, supra).

Here plaintiff pleads a conspiracy to terminate his employment as president of Donrico, Inc., and to depress the value of its stock so that the stock could be acquired by the corporation under the shareholders’ agreement at a greatly depreciated price, but mixes those allegations with charges of diversion of corporate assets by the padding of expenses and the fraudulent reduction of the price of Donrico’s products to a corporate purchaser owned by one of the conspirators. The wrongs thus pleaded are to Donrico, Inc.; there is no claim that plaintiff sustained a loss disproportionate to that sustained by Donrico, or that defendants breached an independent duty owed plaintiff, or that if the corporation is made whole in a derivative action plaintiff will be unable to enforce his right under the employment agreement to damages for its breach and under the shareholders’ agreement to the higher price he claims was due him for his stock. The more particularly is this so in light of the fact that plaintiff’s second cause of action, since discontinued, sought damages for the claimed wrongful termination of the contract employing him as Donrico’s president. His first cause of action was, therefore, properly dismissed. Moreover, the Appellate Division’s failure to grant him leave to replead involved no abuse of discretion in light of the absence of any request on his part for such relief and the fact that his claim against defendant Houbigant, Inc., had been earlier dismissed on the ground that it alleged wrongs to Donrico resulting in a proportionate decrease in the value of plaintiff’s stock which afforded him no right to individual relief.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    Edward Schichler, Appellant, v State of New York, Respondent. Jane Schichler, Appellant, v State of New York, Respondent.
    (Claim No. 62861.)
    (Claim No. 63275.)
    Argued November 12, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      George Abdella for appellants.

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

Order affirmed, with costs. The weight of the evidence more nearly comports with the findings by the Appellate Division.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of National Fuel Gas Distribution Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Argued November 13, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Ronald D. Jones, Bruce V. Miller and Heino H. Prahl for appellant.

      Lawrence G. Malone, David E. Blabey and Jonathan D. Feinberg for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (107 AD2d 357).

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


text:
    In the Matter of Shirley Levine, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued November 14, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      John R. Mineaux for appellant.

      John K. Dalton, Maurice K. Peaslee, George N. Curtis and Albert Wm. Brooks for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 1016). We would but add that our decision does not foreclose petitioner from obtaining whatever credit she may be entitled to under Civil Service Law § 131 (4) for service in a provisional grade 5 position between March 11, 1982 and May 24, 1982, the position from which she was reinstated to her former position as a permanent grade 5 stenographer.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of St. Vincent's Hospital and Medical Center of New York, Appellant, v New York State Division of Housing and Community Renewal, as Successor to New York City Conciliation and Appeals Board, Respondent, and Lilith Agredano et al., Intervenors-Respondents.
    Argued November 19, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Robert F. Martin, John R. Vaughan and Charlotte Natale for appellant.

      Mary Ellen Cronly, Edward Chazin and Brian E. Lawlor for respondent.

      Alan B. Fischler and Linda Ashley for intervenors-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 711).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.


text:
    Rocco Levo et al., Respondents-Appellants, v Martha B. Greenwald et al., Defendants. Martha Greenwald, Third-Party Plaintiff-Appellant-Respondent, v Charles Diggins, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Argued November 12, 1985;
    decided December 17, 1985
    APPEARANCES OF COUNSEL

      E. Stewart Jones and Robert M. Cohen for respondents-appellants.

      Howard D. Clayton for appellant-respondent.

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

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on defendant’s appeal. Plaintiffs’ appeal should be dismissed on the ground that plaintiffs are not aggrieved by the order of the Appellate Division (CPLR 5511).

Plaintiff Rocco Levo was part of a State Department of Transportation work crew engaged in repairing an exit ramp on the Northway when he was struck by an automobile operated by defendant. In a suit by plaintiff and his wife, defendant asserted a third-party claim against several of plaintiff’s co-workers, alleging that inadequate safety measures had been provided. That claim was discontinued against all third-party defendants except the supervisor. The jury returned a verdict for plaintiffs, finding defendant wholly responsible and no cause of action against the third-party defendant.

On defendant’s motion pursuant to CPLR 4404 (a), the trial court in the exercise of its discretion set aside the verdict and ordered a new trial "in the interest of justice.” Third-party defendant, in support of his position that adequate safety measures had been provided, had at trial produced expert testimony of two Department of Transportation employees. In ordering a new trial, the trial court determined that it had erred by limiting cross-examination of those witnesses and refusing a requested charge, on issues going to their credibility. The Appellate Division reversed and denied the motion for a new trial, because it determined on its own review of the record that the issues were already before the jury and the proposed additions to the record would have been merely cumulative on a collateral question of experts’ credibility.

Although the Appellate Division order recited that the reversal was "on the law,” the decision makes plain that the appellate court substituted its discretion for that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225). In such circumstances, there is no question of law for our review (Brady v Ottaway Newspapers, 63 NY2d 1031; Gutin v Mascali & Sons, 11 NY2d 97).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

On defendant’s appeal, order affirmed, with costs. Plaintiffs’ appeal dismissed.


text:
    The People of the State of New York, Respondent, v Jessie Lloyd, Appellant.
    Argued November 15, 1985;
    decided December 17, 1985
    APPEARANCES OF COUNSEL

      Roger D. Olson and William E. Hellerstein for appellant.

      Elizabeth Holtzman, District Attorney (Shulamit Rosenblum, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant contends that an erroneous denial of suppression of a confession and showup entitles him to the return of his guilty pleas, upon which he was convicted of first degree robbery and third degree burglary. Even if we were to agree that suppression was improperly denied — a question we do not reach — still any such error would on the facts presented not entitle defendant to the relief he requests. Here, unlike People v Coles (62 NY2d 908), People v Rolston (50 NY2d 1048), People v Burrows (46 NY2d 957) and People v Grant (45 NY2d 366), defendant prior to the suppression hearing entered pleas of guilty to robbery in the first degree and burglary in the third degree in return for a conditional sentence promise. The court thereafter determined that because of defendant’s criminal record it could not keep the promise regarding sentence and allowed defendant to withdraw those pleas. After suppression was denied, and faced with the prospect of immediate trial, defendant again entered the guilty pleas to the same two crimes, on the understanding that he would not receive persistent felony treatment or persistent violent felony offender treatment. At the time of the pleas, the People obtained from defendant neither a concession that denial of suppression did not influence his decision to plead guilty nor a waiver of his right to appeal the denial of suppression (see, People v Coles, 62 NY2d 908, 910, supra). As we have previously observed, in such situations an appellate court is rarely in a position to determine whether denial of a suppression motion played any part in a defendant’s decision to plead, making harmless error rules generally inapplicable in such situations (see, People v Grant, 45 NY2d 366, 379, supra). Here, however, defendant’s pleas prior to the suppression hearing leave no question regarding his independent motivation to plead guilty.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed in a memorandum.


text:
    GTF Marketing, Inc., Appellant, v Colonial Aluminum Sales, Inc., Respondent.
    Submitted November 15, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Howard, L. Blau for appellant.

      Jessel Rothman for respondent.
   OPINION OF THE COURT

Memorandum.

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

By letter agreement dated March 5, 1981 plaintiff (GTF Marketing) agreed to supply defendant (Colonial Aluminum Sales) with the names, addresses and telephone numbers of homeowners in Queens, Nassau and Suffolk Counties interested in Colonial’s aluminum siding at a cost of $10 per "lead.” According to the agreement, GTF would mail out about 200,000 data processing cards containing "screening questions” asking the recipients whether they were planning to buy aluminum siding and other products within six months. In its verified complaint, GTF alleged that it had supplied 12,463 "leads,” and that Colonial had refused to pay the sum of $124,630 which was owing to GTF.

After joinder of issue, Colonial moved for summary judgment, contending that GTE was precluded based upon factual findings in two other cases in which GTE had sued other companies on similar contracts and lost. In support of its motion, Colonial submitted the affidavit of its president, Michael Longo, in which he discussed the other actions, and to which were annexed as exhibits copies of the oral decisions in those actions containing the allegedly preclusive factual findings. In his affidavit, Longo also swore that GTE had not supplied Colonial with any "leads” as required by the contract, and that "Colonial has received nothing which would entitle GTE to collect any money under the terms of the letter” agreement. In opposition, GTE submitted only the affidavit of its attorney purporting to set forth certain facts about the formation of the contract and reciting that "the issue of whether performance under or breach of the agreement has occurred is also a question of fact.” Special Term denied the motion, but a divided Appellate Division reversed. The majority held that GTE was barred by the doctrine of third-party issue preclusion and, further, that GTF’s papers in opposition were insufficient to raise a triable issue of fact. We conclude that, although collateral estoppel does not apply, the Appellate Division correctly dismissed the complaint due to the insufficiency of GTF’s affidavit in opposition to summary judgment.

Although the contracts in the prior actions and in this one are different, Colonial argues that the performance was the same, and that the trial judge necessarily found that GTE had fraudulently failed to send out any data processing cards. It is not clear from the decision, however, whether the trial court specifically and necessarily decided that issue, and third-party issue preclusion therefore does not lie (see, O’Connor v G & R Packing Co., 53 NY2d 278). Because the decision was delivered orally immediately following trial, it contains a number of observations, none of which can be said with certainty to be dispositive of the issue before us. It would have been highly desirable for the trial court to have issued an opinion containing findings, particularly since the court knew at the time of its decision that this action was pending.

The opposing affidavit was, however, insufficient. A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). However, once the moving party has satisfied this obligation, the burden shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement” (Zuckerman v City of New York, 49 NY2d 557, 560, supra).

Here, Colonial satisfied its burden. Kongo’s affidavit stated that, although GTF had provided names of homeowners to Colonial, Kongo personally and Colonial in the ordinary course of its business determined that the names were useless and not "leads.” Some had never sent in data processing cards; others said they had been promised free gifts; many hung up, and others could not be called because GTF had not supplied telephone numbers. Kongo concluded that he "could not make any use of the purported 'leads’ supplied to us by GTF. They were just names, and definitely were not 'leads.’ ”

In the face of Kongo’s affidavit and allegations that GTF failed to perform, the affidavit of GTF’s counsel submitted in opposition was insufficient. The allegation that a question of fact exists as to performance under the agreement is plainly not made upon personal knowledge. As we have previously noted, an affidavit or affirmation of an attorney without personal knowledge of the facts cannot "supply the evidentiary showing necessary to successfully resist the motion” (Roche v Hearst Corp., 53 NY2d 767, 769). "Such an affirmation by counsel is without evidentiary value and thus unavailing” (Zuckerman v City of New York, 49 NY2d 557, 563, supra). Thus, on the papers submitted the uncontroverted fact is that GTF did not perform or provide Colonial with any "leads” under the agreement, and GTF’s claim that Colonial breached the agreement by failing to pay for the services rendered should therefore be dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Louis Vasquez, Appellant.
    Argued November 19, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Bernard Rosenbloom and Joseph Ostrowsky for appellant.

      Robert M. Morgenthau, District Attorney (Laurie E. Cohen and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While defendant on this appeal complains that the police officer, by leaning into the car through an open window, violated his Fourth Amendment rights, the question presented to the suppression court, and ruled on by that court, was whether defendant’s rights were violated by the officer’s opening of the car door and reaching into the automobile to recover a weapon. Defendant’s failure to preserve his present argument, by specifically placing it for disposition before the suppression court, leaves no basis for our review. Defendant’s alternative contention, that he should not have been charged with possession of the guns because he was outside the car when they were found, has been waived by his guilty plea.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed in a memorandum.


text:
    X.L.O. Concrete Corp., Plaintiff, v John T. Brady and Company et al., Respondents. John T. Brady and Company, Third-Party Plaintiff-Respondent, v New York University, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Argued November 18, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Robert P. Walton, S. Andrew Schaffer and Moira Morrissey for appellant.

      Frederick Cohen and Charles Fastenberg for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative for so much of the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (104 AD2d 181) as holds that a liquidated damage provision in a construction contract is not vitiated by the owner’s own culpability in causing some of the delay, and that in the situation here present the owner is limited to recovery of the stipulated sum.

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


text:
    The People of the State of New York, Respondent, v Hayward Witherspoon, Appellant.
    Argued November 11, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Susan K. Cable of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

When a defendant properly challenges statements made by him that the People intend to offer at trial, it is, of course, the People’s burden to establish, beyond a reasonable doubt, that such statements wpre voluntarily made (People v Anderson, 42 NY2d 35). This does not mean, however, that the People are mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited.

In this case, defendant presented no bona fide factual predicate which demonstrated that such officers possessed material evidence on the question of whether the statements were the product overtly or inherently of coercive methods, so the People could meet their burden through the testimony of the officer who elicited the confession. The attorney’s affidavit in support of the motion to suppress was conclusory and defendant offered no evidence at the hearing even though he was previously afforded complete discovery of the People’s case file.

Moreover, insofar as defendant suggests that the other officers may have elicited prior statements from him in violation of Miranda v Arizona (384 US 436), we would note that the Supreme Court has held that this would not bar admission of a statement made after the required warnings are administered (Oregon v Elstad, 470 US —, 105 S Ct 1285). Since the officer who testified at the suppression hearing stated that such warnings were administered prior to the defendant’s admissions, the prior events are irrelevant. People v McGregor (84 AD2d 610, on subsequent appeal 85 AD2d 848), is, therefore, disapproved.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed in a memorandum.


text:
    Neil Appelbaum et al., Appellants, v Sylvia Deutsch et al., Respondents.
    Argued November 18, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Louis C. Pulvermacher for appellants.

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

Memorandum.

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

On August 31, 1981, the Organization of African Unity (OAU) purchased a brownstone residence on East 50th Street in Manhattan, an "R8” residential zoning district. Intending to convert the house into its diplomatic mission to the United Nations — with a library on African affairs, office space for mission operations, and living quarters for personnel — OAU sought a permit from the Department of Buildings (DOB) to make the necessary alterations. New York City’s zoning resolution permits "community facilities,” which includes "nonprofit institutions” (with or without sleeping accommodations) meeting employment and space restrictions (Zoning Resolution §§ 22-13, 22-14), to locate as of right in an R8 residential district. DOB found the mission to be a permitted community facility, and granted the permit.

Petitioners, residents of East 50th Street and members of its block association, requested that OAU’s permit be revoked. Upon denial of their request, they filed an administrative appeal with the New York City Board of Standards and Appeals (BSA), which affirmed DOB’s issuance of the permit. BSA found that the zoning resolution’s characterization of nonprofit institutions as community facilities was not dependent on State or Federal law defining nonprofit institutions, but merely served to distinguish such institutions from land uses of a commercial nature. It then found that diplomatic missions perform services such as intergovernmental and intercultural relations and can thus be viewed as nonprofit community facilities that may locate in a residential district. In petitioners’ article 78 proceeding that followed, Special Term upheld BSA’s determination as a reasonable exercise of discretion and dismissed the petition. A divided Appellate Division affirmed.

We agree with the conclusions reached by the courts below. BSA’s construction of the terms "non-profit institution” and "community facility” in the zoning resolution are rational, given the scope and purpose of the zoning resolution, and BSA’s finding that OAU’s mission was a nonprofit community facility is supported by substantial evidence.

BSA and DOB are responsible for administering and enforcing the zoning resolution (New York City Charter §§ 643, 666 [7]), and their interpretation must therefore be "given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute.” (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545.) The term "non-profit institution” is not defined in the zoning resolution. It was reasonable for BSA to construe that term in light of both its own experience and the stated purposes of the resolution to protect residential areas from traffic and noise associated with commercial uses. Conversely, BSA was not required blindly to import a definition of "non-profit institution” from other State or Federal tax statutes which have varying purposes. Moreover, substantial evidence was presented to BSA supporting its conclusion that the proposed mission’s services in furthering intergovernmental and intercultural relations qualified it as a noncommercial, and therefore "non-profit,” institution for the purposes of the zoning resolution.

We reject the position of the Appellate Division dissenters that introductory statements at the head of the zoning resolution sections listing which uses constitute "community facilities” are to be read as conditions precedent to granting a permit (see, Zoning Resolution §§ 22-13, 22-14). The resolution itself provides that brief statements are inserted at the start of each "Use Group” to describe and clarify the basic characteristics of the various uses listed (Zoning Resolution § 22-00). BSA’s conclusion that these statements were merely prefatory and designed to give guidance in interpreting the resolution was thus fully consistent with the resolution, and its conclusion that the proposed mission was a "community facility” consonant with the listed uses was not "irrational, unreasonable [or] inconsistent with the governing statute.” (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, supra.)

Order affirmed, with costs, in a memorandum.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.


text:
    In the Matter of Fayez Restaurant, Inc., Respondent, v State Liquor Authority, Appellant.
    Decided December 17, 1985
    APPEARANCES OF COUNSEL

      Gloria M. Dabiri and Jean Smiertka Huff for appellant.

      Arthur L. Harrow for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the State Liquor Authority (SLA) disapproving petitioner’s application for a restaurant beer and wine license reinstated.

Sections 64 (7) and 80 of the Alcoholic Beverage Control Law prohibit issuance of a liquor license for premises located within 200 feet of a building "occupied exclusively” as a church. The issue presented by this appeal is whether the SLA properly denied petitioner such a license where its premises are within 200 feet of a building known as the "Neighborhood Church,” with its ground floor used for daily worship by church members and the public, and its upper two floors used by the pastor and his wife for their residence. From his study on the third floor, the pastor also three days a week prepares, and one day a week broadcasts, evangelical radio shows; as part of the church’s mission house activities the pastor and his wife care for persons in need. Outside the building is a sign stating that it is the home of New York Christian Outreach, described as a "department of the church, which handles the evangelistic outreach and visitation endeavors of our congregation.” Special Term granted petitioner’s article 78 petition and ordered the SLA to issue a license, concluding that use of the upper two floors as a "parsonage” for the pastor and his wife meant that the building as a whole was not "occupied exclusively” as a church, and the Appellate Division unanimously affirmed, without opinion. We now reverse.

A building is "occupied exclusively” as a church within the contemplation of Alcoholic Beverage Control Law § 64 (7) where its primary or paramount use is as a church, even though there is an incidental use not inconsistent or detracting from the predominant character of the building as a church (see, Matter of Multi Million Miles Corp. v State Liq. Auth., 55 AD2d 866, affd on mem below 43 NY2d 774; People ex rel. Clausen v Murray, 5 App Div 441). Consequently, where —as here — part of a building functioning as a place of worship is used as the pastor’s family residence, from which church-related work is also conducted, the building still may be considered to be "occupied exclusively” as a church (see, Matter of Trustees of Calvary Presbyt. Church v State Liq. Auth., 245 App Div 176, affd 270 NY 497; People ex rel. Cairns v Murray, 148 NY 171). Petitioner’s arguments centering on a lack of necessity for the statutory prohibition, or its unfairness, are more appropriately addressed to the Legislature.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the determination of the State Liquor Authority reinstated in a memorandum.


text:
    In the Matter of New City Jewish Center, Appellant, v Barbara Flagg et al., Constituting the Board of Education of the Clarkstown Central School District, et al., Respondents.
    Argued November 18, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Donald Tirschwell for appellant.

      Warren E. Berbit and Ira M. Emanuel for Barbara Flagg and others, respondents. .

      Donald S. Tracy for R & R Construction, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (111 AD2d 814).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Albany Medical College, Respondent, v Richard H. McShane, Appellant.
    Argued November 12, 1985;
    decided December 17, 1985

      APPEARANCES OF COUNSEL

      Cornelius D. Murray, Leonard R. Kershaw and Salvatore D. Ferlazzo for appellant.

      John A. Beach, Ronald C Berger and Joseph P. Van De Loo for respondent.

      Floyd Abrams and Andrew Dash for Associated Medical Schools of New York and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Defendant was employed by plaintiff, a State-chartered medical college, as a teacher, researcher, and supervisor of its patient care program in its division of plastic surgery. After defendant disassociated himself from the college and began his own private plastic surgery practice, plaintiff commenced this action, seeking to recover, among other things, office equipment, patient records, and fees and revenues from patient care allegedly diverted by the defendant.

Special Term granted summary judgment, dismissing the complaint. The Appellate Division, Third Department, reversed, but granted leave to appeal on a certified question.

The claim that plaintiff may not share in fees generated by physicians who are faculty members is "farfetched at best” (Adamsons v Wharton, 771 F2d 41, 43). Because plaintiff has a corporate charter empowering it to promote medical science and instruction, its treatment of patients does not constitute an illegal corporate practice of medicine (see, Public Health Law § 2801-a; People v Woodbury Dermatological Inst., 192 NY 454, 457) or illegal fee splitting in violation of Education Law § 6509-a and 8 NYCRR 29.1 (b) (4). Courts have consistently rebuffed challenges to faculty medical practice plans similar to the one adopted by plaintiff (e.g., Adamsons v Wharton, supra; Gross v University of Tenn., 620 F2d 109, 110; Kountz v State Univ., 87 AD2d 605, affg 109 Misc 2d 319, appeal dismissed and lv denied 58 NY2d 747), and we perceive no reason to decline to follow these authorities.

Finally, the financial and patient records generated are clearly the property of plaintiff, subject to defendant’s right to obtain copies (see, Public Health Law § 17; Matter of Hernandez v Lutheran Med. Center, 104 AD2d 368; Damsker v Haque, 93 AD2d 729).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

Order affirmed, etc.