text:
    In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Appellants, v John J. Clyne, Individually and as Judge of the County Court of the County of Albany, et al., Respondents.
    Argued May 12, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Peter L. Danziger and Thomas F. Gleason for appellants.

      Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for John J. Clyne, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the case remitted to that court for entry of a judgment declaring that it was error for the trial court not to have conducted a preliminary inquiry before deciding to exclude petitioner’s reporter from the hearing.

In midtrial of a criminal action the trial court granted the defendant’s application for a separate hearing under People v Sandoval (34 NY2d 371) out of the presence of the jury to determine which, if any, of the defendant’s prior criminal acts would be admissible to impeach his credibility should he take the witness stand. Petitioner’s reporter sought permission to attend the hearing. Acting at the defendant’s instance the trial court summarily denied the request and held a closed hearing. It was error on the part of the trial court not to have conducted a preliminary inquiry in accordance with the procedural prescriptions set forth in Matter of Westchester Rockland Newspapers v Leggett (48 NY2d 430, 442; cf. Matter of Hearst Corp. v Clyne, 50 NY2d 707, 716).

It is true that the hearing in this instance was not part of the trial itself, nor was it conducted with respect to the admission of evidence on the issue of the defendant’s guilt or innocence. Its purpose was to permit the Trial Judge to assess the risk of unfair prejudice to the defendant from the introduction of evidence of prior specific criminal, vicious or immoral acts against its probative worth as a measure of his credibility should he elect to testify in his own behalf. But, despite the possible prejudice to the defendant, it cannot be said as a matter of law that there is no genuine public interest in such a hearing, in view both of the significance of the rulings to be made and their impact on the decision of the defendant whether to take the witness stand. The procedures laid down in Leggett and Hearst should, therefore, have been followed and “all proceedings on the [defendant’s] motion, whether in open court or in camera, should [have been] recorded for appellate review” and “the reasons for closure [should have been] given in open court” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 442, supra).

Inasmuch as no such contemporaneous preliminary inquiry was held we do not reach or address the question whether petitioner’s reporter should have been permitted to attend the Sandoval hearing.

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

Judgment reversed, without costs, and matter remitted to the Appellate Division, Third Department, for entry of a judgment in accordance with the memorandum herein.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Peter Kelly, Appellant. The People of the State of New York, Respondent, v Lloyd Breen, Appellant.
    Argued May 7, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Irving Anolik for Peter Kelly, appellant.

      Jay A. Kaplan for Lloyd Breen, appellant.

      Michael Kavanagh, District Attorney (Marsha Solomon of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

The defendants’ contention that the initial entry of the police into the room was not justified, does not raise any question warranting reversal in this court. The finding that the police reasonably believed that an emergency existed involves a mixed question of law and fact. Since there is support in the record for the finding, which has been affirmed by the Appellate Division, it is beyond review in this court. We would note, in addition, that we find no error concerning the proceedings surrounding the pleas.

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

In each case: Order affirmed, in a memorandum.


text:
    Beth Berlin, Appellant, v Fort Howard Paper Company, Respondent, et al., Defendant.
    Argued May 12, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Rita R. F. Brettschneider and Barbara M. Edmonson for appellant.

      Raymond L. Vanderberg, Carl A. Schwarz, Jr., and Jeffrey L. Berger for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (83 AD2d 505).

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


text:
    In the Matter of the Claim of Gerald A. Hilton, Respondent, v Truss Systems, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued May 12, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Samuel B. Varonese for appellants.

      John S. Hogg for Gerald A. Hilton, respondent.

      Robert Abrams, Attorney-General, for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (82 AD2d 711).

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


text:
    Maxon International, Inc., Appellant, v International Harvester Company, Respondent.
    Argued May 11, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      Samuel D. Hester for appellant.

      P. David Twichell and Henry S. Fraser for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (82 AD2d 1006), to which we add only that much of what plaintiff has argued before us is beyond the theory of the case as presented to the jury in a charge to which no exception was taken and, therefore, cannot be considered by us (cf. Bichler v Lilly & Co., 55 NY2d 571).

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


text:
    In the Matter of Brooklyn Union Gas Company, Appellant, v City of New York et al., Respondents.
    Argued May 12, 1982;
    decided June 10, 1982

      APPEARANCES OF COUNSEL

      F. Peter O’Hara and Terry D. Weissman for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Morris Einhorn and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, on the reasoning of Justice Leonard H. Sandler’s opinion in Teleprompter Corp. v City of New York (82 AD2d 145), to which we add only that the conclusion there reached is strengthened in the present case by the express requirement in section 61 of the agreement between the city and petitioner’s predecessor, New York and Richmond Gas Company, that on merger or consolidation of the predecessor, the successor corporation (petitioner) agree to “a method of limiting deductions under” the section of the Real Property Tax Law here in issue.

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


text:
    Joan Learn et al., Appellants, v Bicentennial Wagon Train, Respondent, and Norman Deep, Defendant and Third-Party Plaintiff-Respondent. Aitkin Kynette, Inc., et al., Third-Party Defendants-Respondents. (And Another Third-Party Action.)
    Decided June 10, 1982

      APPEARANCES OF COUNSEL

      Robert M. Ginsberg for appellants.

      Leonard A. Sheft and Richard T. Farrell for Norman Deep, respondent.

      John T. Pellini and Stanford Kaplan for Aitkin Kynette, Inc., and another, respondents.

      McCaffrey & Condon for Village of Tarrytown and another, respondents.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The Appellate Division correctly ruled that Pfaffenbach v White Plains Express Corp. (17 NY2d 132) was not applicable to the facts of this case.

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


text:
    In the Matter of New York Eye and Ear Infirmary, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Submitted April 19, 1982;
    decided June 10, 1982
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not one within the meaning of CPLR 5602 (subd [a], par 2).


text:
    In the Matter of Donald Schanbarger, Appellant, v New York State Commissioner of Social Services, Respondent.
    Submitted May 17, 1982;
    decided June 10, 1982
   Motion to dismiss appeal granted to the extent that the appeal is transferred to the Appellate Division, Third Department, without costs. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    David Schulman et al., Appellants, v James H. Tully, Jr., as Commissioner of Taxation and Finance, Respondent.
    Submitted April 26, 1982;
    decided June 10, 1982
   Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.

Chief Judge Cooke taking no part.


text:
    In the Matter of Society of New York Hospital, Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.
    Submitted April 19, 1982;
    decided June 10, 1982
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not one within the meaning of CPLR 5602 (subd [a], par 2).


text:
    Betty Wurm, Respondent, v Morris Wurm, Appellant.
    Submitted May 10, 1982;
    decided June 10, 1982
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the modification at the Appellate Division is not in a “respect, which is within the power of the Court of Appeals to review” (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    The People of the State of New York, Respondent, v James Charleston, Appellant.
    Argued May 7, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Laurence B. Liebowitz for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of attempted murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. On this appeal, he argues that the Trial Judge’s extensive participation in the questioning of witnesses deprived him of a fair trial. That claim, however, is not adequately preserved for this court’s review.

A question of law for review in this court is presented on a claim of excessive interference by the Trial Judge when there has been an objection at trial in some form sufficient to give the Judge an opportunity to correct the problem or when it is clear from the record that objection would have been unavailing. As the court recognized in People v Yut Wai Tom (53 NY2d 44, 55), “Because a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial, a defense attorney cannot be expected to enter an objection to the Trial Judge’s conduct at the first sign of judicial overbearance.” Nonetheless, after it becomes “clear that the Judge intends to exceed his permissible role and assume the advocate’s function” (53 NY2d, at p 55), it is incumbent upon defense counsel at least to attempt to register some protest to that conduct to preserve the matter for appellate review. In addition, the objection or objections must be of a nature to apprise the Trial Judge that it is his or her intrusion into the conduct of the trial that is at issue.

In the instant case, although defense counsel objected three times to questioning by the Trial Judge, the record indicates that the objections were directed to specific questions rather than to the Judge’s general course of action or participation as a whole. By failing to call the Judge’s attention to his allegedly prejudicial conduct, defendant did not offer him an opportunity to alter or correct it. Defendant also failed to move for a mistrial, which would have given the trial court an additional opportunity to correct the asserted error.

It is true in such cases, of course, that “the greater the Trial Judge’s penchant for participation in the questioning of witnesses, the more difficult will it be for counsel to register objection to the Judge’s conduct for fear of antagonizing him” (People v Yut Wai Tom, 53 NY2d 44, 55, supra), and it is conceivable that in an extreme form this might excuse a defendant’s failure to make an appropriate objection. There is no indication in the record, however, that such a situation was present here. Defendant’s failure to make an appropriate objection or to move for a mistrial, therefore, must preclude review of his claim by this court.

Those of defendant’s other claims that are preserved are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Celia A. Murray, Appellant, v Troy Urban Renewal Agency, Inc., et al., Respondents.
    Argued May 14, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Patrick T. Morphy for appellant.

      Donald C. Bowes, Corporation Counsel (John D. Chestara of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this proceeding, petitioner seeks access to certain records of respondent Troy Urban Renewal Agency, Inc. The records consist of reports by an independent appraiser on the potential use and value of certain buildings that the agency owned and planned to offer for sale to the public. The Appellate Division correctly determined that the appraiser’s reports fell within the provision of the Freedom of Information Law excepting from disclosure to the public those materials that “if disclosed would impair present or imminent contract awards” (Public Officers Law, § 87, subd 2, par [c]).

A number of the buildings have since been sold, and it is obvious that the statutory exception to disclosure no longer applies to the appraiser’s reports on those buildings. Inasmuch as the agency has now agreed to release the reports on all buildings that have been sold, and to continue to release the reports on the remaining buildings as they are sold, there is no occasion to consider whether the reports fall under any other exception to the disclosure requirements of the Freedom; of Information Law.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Laurence Gailband, Respondent, v Joseph J. Christian, as Chairman of the New York City Housing Authority, Appellant.
    Argued May 14, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Raphael Samuel and Michael M. Cohen for appellant.

      Stephen R. Mahler for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court, Richmond County, should be reversed, with costs, and the determination of the New York City Housing Authority (Authority) should be reinstated. The prior nonfinal order of modification brought up for review pursuant to CPLR 5601 (subd [d]) should be reversed.

Petitioner, who was employed by the New York City Housing Authority Police Department, was charged with incompetency and misconduct. A hearing on the charges was held and it was clearly established that the petitioner, although on sick leave from the Authority police force, was working on a regular basis at a service station he owned. A review of petitioner’s testimony indicates that he was well aware of the housing authority regulations which required officers to obtain prior permission either to leave their “place of confinement” while on sick leave or to engage in any secondary employment. Petitioner’s conduct was clearly in violation of these regulations. Although the hearing officer recommended a two-month suspension without pay as the appropriate sanction, the Authority determined that dismissal was proper.

Petitioner then brought this article 78 proceeding which was transferred to the Appellate Division pursuant to CPLR 7804 (subd [g]) and 7803 (subd 4). The Appellate Division modified the agency’s determination by reducing the penalty from dismissal to a two-month suspension without pay and by ordering petitioner’s reinstatement. The case was remanded to Special Term for a hearing on the issue of back pay. After entry of judgment based on a stipulation with respect to the issue of back pay, this appeal was brought challenging the prior nonfinal order of the Appellate Division.

As stated by this court in Matter of Harris v Mechanicville Cent. School Dist. (45 NY2d 279, 284) “[Judicial review of administratively imposed sanctions is limited: only when the sanction is, under the circumstances, so disproportionate to the offense as to ‘shock the conscience of the court’ may it be revised (Matter of Pell v Board of Educ., 34 NY2d 222, 232-235, supra).” In this case, it cannot be said that the penalty of dismissal was so disproportionate to petitioner’s offenses as to mandate modification. Petitioner knowingly violated his employer’s regulations over an extended period of time. In light of petitioner’s continuing and intentional violation of those rules, the agency did not abuse its discretion by imposing the penalty of dismissal. Since it cannot be said, as a matter of law, that the agency abused its discretion by dismissing the petitioner, the agency’s determination should be reinstated.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and determination of the New York City Housing Authority reinstated in a memorandum.


text:
    In the Matter of James W. Randolph, Appellant, v New York City Employees’ Retirement System et al., Respondents.
    Decided June 15, 1982

      APPEARANCES OF COUNSEL

      Douglas F. Eaton for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Mary McCorry of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (86 AD2d 536).

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


text:
    In the Matter of 12 Cornelia Street, Inc., Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued May 14, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      John L. Bell for appellant.

      Robert Abrams, Attorney-General (Peter H. Schiff, Paul S. Shemin and Grace A. Brannigan of counsel), for respondent.

      John T. De Graff, Jr., and Michael T. Wallender for New York State Association of Realtors, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Unemployment Insurance Administrative Law Judge reinstated.

The decision of the Unemployment Insurance Appeal Board that petitioner’s real estate salespersons are “employees” and that respondent thus properly assessed petitioner for additional contributions for unemployment insurance is not supported by substantial evidence. A determination that an “employer-employee” relationship exists must rest upon evidence that petitioner exercises control over the results produced by its salespersons or the means used to achieve the results (Matter of Sullivan Co. [Miller], 289 NY 110). The only rational conclusion that can be drawn from the record on this appeal is that such control is lacking and that the salespersons are therefore appropriately to be considered independent contractors rather than employees of petitioner.

The following characteristics are illustrative of the nature of the relationship between petitioner and its associated salespersons: salespersons are paid commissions upon gross sales, if any, without deduction for taxes, and are not entitled to draw against commissions; they are permitted to work whatever hours they choose (although a voluntary time schedule has been set up by the salespersons themselves, to which not all adhere), out of their own homes or petitioner’s office, and are free to engage in outside employment; petitioner provides limited facilities and supplies for the use of salespersons, but the salespersons otherwise bear their own expenses; attendance at periodic sales meetings is not required; whatever initial training is provided by petitioner may be availed of or not at the salesperson’s option; a group insurance plan covers the salespersons, but the salespersons themselves pay the premiums; and, while petitioner assigns leads to salespersons on a rotating basis, the majority of leads come from the salespersons themselves. In the face of uncontradicted evidence of these characteristics of petitioner’s relationship with its salespersons, it cannot be said that substantial evidence exists to support the finding of the appeal board that the relationship is one of employment (Matter of Watz [Equitable Life Aissur. Soc. of U. S. —Ross], 60 AD2d 259, affd 46 NY2d 876; Matter of Barrett [Stovroff & Herman Ross], 56 AD2d 688).

Although respondent has not pressed the argument on this appeal, we note further that the appeal board’s reliance on the Secretary of State’s regulation (19 NYCRR 175.21) regarding broker supervision over real estate salespersons is misplaced. The existence of this regulation and its imposition of responsibility upon the broker is an insufficient predicate, by itself, on which to base a finding that the relationship is not one of independence but of employment (see Matter of Sullivan Co. [Miller], 289 NY 110, supra; Matter of McCabe & Willig Realty [Ross], 80 AD2d 935).

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

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property for a Project Known as College Point Industrial Park Urban Renewal Project II, Stage III within the Area Bounded by 15th Avenue and Other Streets in the Borough of Queens. Leo Marinello et al., Respondents.
    Decided June 15, 1982

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Morris Einhorn of counsel), for appellants.

      Michael J. Greco for respondents.
   opinion of the court

On review of submissions pursuant to Rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The finding of the Appellate Division more nearly comports with the weight of the evidence.

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


author: Wachtler, J. Fuchsberg, J.

text:
    Mary Eaton et al., Appellants, v Equitable Life Assurance Society of the United States, Inc., et al., Defendants, and. Marine Midland Bank, Inc., Respondent.
    Argued May 7, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Douglass J. Seidman and Joan Mangones for appellants.

      Walter J. Matt, Jr., and David A. Ferdinand for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, for the reasons stated in the dissenting opinion of Justice David T. Gibbons in that court (81 AD2d 653, 654).

The excuses proffered by respondent amount to nothing more than law office failure, as both courts below recognized. Just as it is an abuse of discretion to accept law office failure as an excuse for a plaintiff’s failure to prosecute (Barasch v Micucci, 49 NY2d 594), so is it an abuse of discretion to vacate a default on the application of a defendant whose only excuse is law office failure. Each party is entitled to expect the other to observe time requirements during the course of litigation, and both are equally subject to prejudice from failure to observe such requirements. Respondent here could have moved for an extension of time to answer (cf. A & J Concrete Corp. v Arker, 54 NY2d 870). It could also have sought a written stipulation pursuant to CPLR 2104, the provisions of which are, of course, designed to forestall precisely the difficulties presented in these cases.

Wachtler, J.

(dissenting). In my view the courts below had discretion to grant the defendant’s application to vacate the default. Although a plaintiff who has commenced an action and then neglects it cannot justifiably claim law office failure (Barasch v Micucci, 49 NY2d 594), this kind of mistake by a defendant is more understandable and the courts should not be denied the power to grant relief when the defendant has, in fact, inadvertently failed to make a timely defense in a case where a legitimate defense is tendered (see, e.g., Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215-.24, p 880).

Fuchsberg, J.

(dissenting). I write more fully than does Judge Wachtler to express my dismay and concern that Barasch v Micucci (49 NY2d 594), which expressly stated that only in “rare instances” (Barasch, at p 601) could or would we superimpose our authority as a court of law in matters relating to the everyday management of litigation, has not stayed within bounds. For, in the hierarchy of New York courts, such issues are, and should be, left essentially in the hands of the four departments of the Appellate Division and, in the first instance, of the courts over which they exercise their supervisory powers.

It is regrettable, therefore, as the majority opinion in the case before us now so well illustrates, that there has resulted the misperception that Barasch enjoins our intermediate appellate courts to substitute harsh and unbending procedural disciplines for sensible, informal, everyday courtesies which, as overburdened Trial Judges and busy litigating lawyers will appreciate, well served important cost and convenience considerations (see, e.g., A & J Concrete Corp. v Arker, 54 NY2d 870, 872-873 [concurring opn]; see, also, Cohen v First Nat. City Bank, 52 NY2d 863; Merchandising Presentation v Blumenfeld, 52 NY2d 867; Jamaica Buses v Connor, 52 NY2d 868; Steen v New Deal Delivery Serv., 54 NY2d 796; Premo v Cornell, 55 NY2d 962).

In the immediate case, the question is whether the Appellate Division, because, in the interest of justice, it vacated defendant Marine Midland Bank’s short default in serving its answer — if default it was — may be said to have abused its discretion as a matter of law. The majority, in summary memorandum, says it did. It appears crystal clear to three members of this court that it did not. The details are instructive.

Plaintiff William Eaton was employed by the bank at age 71. He and his wife commenced this suit to recover $6,780 incurred four months later for his wife’s medical treatment, which they claim was covered by the bank’s major medical group policy with defendant Equitable Life Insurance Company. Besides nonpayment, plaintiffs’ freewheeling five-count, 74-paragraph complaint alleges, among other things, mutual mistake on the part of the employee and the bank (which they assert is an agent of Equitable), unconscionable conduct on the part of both the bank and Equitable (which is also joined as a defendant), misrepresentations by the bank as to the extent of the coverage and failure of St. Vincent’s Medical Center (hospital) (joined as still another defendant) to advise the plaintiffs to apply for Medicaid benefits. The prayer for relief ambitiously demands that the hospital be enjoined for collecting its charges under the provisions of the “Hill-Burton Act * * * under which the Hospital agreed * * * to furnish free and below-cost services to persons unable to pay * * * and to refrain from making collection efforts”, that a declaratory judgment issue and the like. The complaint indicates too that all but $124 of the claim was rejected by Equitable as beyond its coverage.

The complaint was served on the bank on December 19, 1979. The bank, as a matter of course, had until January 9 to answer (CPLR 3012), but, before this period expired, and again later that month, counsel for both sides agreed on short extensions and, finally, on February 7, to a third one, which was for no fixed time period. Instead, as the bank’s counsel remembers it, the answer was to be served “as soon as I could”, while, according to plaintiffs’ counsel’s later recollection, the agreement was for a seemingly equivalent “put it in the mail soon”. All the extensions were arranged by telephone, one being confirmed by letter as well. Four weeks later, on March 7, without notifying the bank’s counsel of their intention to do so, plaintiffs entered an ex parte default judgment against it.

When the bank moved to open the default, Special Term, in a brief memorandum in which it chose to treat this train of events as “law office failure”, denied the motion in the exercise of its discretion. However, on appeal, the majority at the Appellate Division, persuaded by the “relative shortness of the delay, the nature of appellant’s excuse, the apparent existence of a meritorious defense, the promptness with which appellant moved to vacate its default, and the absence of any apparent intention on its part to abandon its defense to the action”, reversed and vacated the default, likewise in the interest of justice. (81 AD2d 653.) Moreover, to “redress any inconvenience which the plaintiffs may have suffered”, it conditioned this relief on the bank’s payment of $500 to plaintiff, a condition that was met. But, two dissenting Justices, acting on no more than their own assumption that “soon” means “two weeks” and counsel’s explanation for having requested the extensions — essentially, the relatively complex nature of the issues raised by the pleadings, including the interplay between Medicaid coverage and the terms of the policy it had purchased from Equitable, and the inability of the bank to locate the part of the policy containing the provisions governing coverage of persons over age 65 — voted to affirm because of what they apparently took to be the compulsions of Barasch v Micucci (supra).

But Barasch itself emphasizes that it is only the extraordinary case in which an exercise of discretion by the lower courts, especially in the management of the procedural aspects of litigation, will “give rise to a question of law that is cognizable in this court” (Barasch, at p 598; Elias v Prudential Inv. Corp., 50 NY2d 924, mot for rearg den 51 NY2d 771; Jones v Maphey, 50 NY2d 971, 973; Paradis v Doyle, 291 NY 503; Cohen & Karger, Powers of the New York Court of Appeals, §§ 151, 158; 7 Weinstein-KornMiller, NY Civ Prac, par 5501.17). In reiterating this fundamental principle of New York practice, Barasch also acknowledges that, “[bjecause the circumstances which may cause a plaintiff to postpone service of his complaint are too numerous and varied to be categorized in any systematic fashion, we are reluctant to adopt an inflexible set of rules to govern the lower courts’ decisions in this area” (Barasch, at p 600).

It nevertheless also declares that, before vacating a procedural default (in Barasch, late service of a complaint), a fact-finding court should insist on a showing of legal merit and a reasonable excuse for the delay, of which “law office failure” is to be looked upon askance. As we shall see, the Appellate Division’s holding on the motion in the case before us came well within these criteria.

First, as to the merits, the three affidavits which form part of the bank’s moving papers develop that, contrary to the complaint’s allegation that the bank had “negligently misrepresented the extent of the major medical coverage”, the bank, far from misrepresenting, had issued the husband an “Employee Handbook” which indicated that coverage after 65 would be subject to Medicaid benefits. It is then no surprise that the majority at the Appellate Division found “the apparent existence of a meritorious defense” and that the dissenters suggested nothing to the contrary.

Second, this case is simply not one involving “law office failure”, a term connoting such matters as “misplaced files, overlooked time periods, preoccupied attorneys, and the like” (Siegel, “Law Office Failures” No Excuse For Nonservice of Complaint, New York State Law Digest, No. 247; see, also, the three definitional cases cited by Barasch itself [at p 599], i.e., Ferrentino v Farragut Gardens, No. 5, 35 AD2d 815, app dsmd 28 NY2d 579 [counsel misplaced file]; Kriegsman v Rosenfeld, 35 AD2d 693 [counsel misplaced file]; Wade v Miele, 34 AD2d 656 [counsel delayed complaint for 18 months]).

Rather, here the explanation for delay may well start by observing that the complaint, on its face, is of such an all-embracing nature that it must have presented the bank’s counsel with the troublesome problems of a seemingly simple case whose reach the pleading had turned into a potentially complex, multiparty litigation. Furthermore, as one of the affiants explains, the expansive nature of the suit put an unusual burden on counsel, inter alia, to investigate facts and assemble documents, in the course of which it was discovered that the bank had no copy of certain provisions believed pertinent to the case. If this be “failure”, obviously it was the bank’s and not counsel’s “failure”. Nor was it “failure” in the litigation, but, if at all, “failure” preceding the litigation. In short, in no way was it “law office failure”.

In any event, the affiant fairly described how he had attempted to locate the missing matter by “request[ing] the same from the carrier, Equitable Life; have had correspondence and numerous telephone calls with Equitable; but have thus far been unsuccessful in obtaining it” (sic). He further averred that, before promising to get the bank’s answer to plaintiffs’ counsel “as soon as I could”, he informed the latter that he needed the time because of the trouble he was having in locating a portion of the policy.

Ironically, the indulgence the bank’s counsel had asked of the plaintiffs was minimal. The bank’s answer was first due on January 9 and, if pressed, the bank had a right to serve it in incomplete form and then replace it with an amended version as a matter of course by January 29 (CPLR 3025). Therefore, until then, it had requested no courtesy it could not have had as a matter of right.

The only extension after this date was one requested on February 7. Culminating in the “as soon as I could” agreement, this sine die arrangement was one at will, thus terminable either by the bank’s service of the answer or the plaintiff’s request that it be served forthwith. Absent such a step by either party, there certainly was no basis for converting the unfixed terminal date, as only the dissenters at the Appellate Division would do, into a fixed one for two weeks. Would it then be illogical or unreasonable to regard the plaintiffs’ entry of an ex parte judgment as anything less than a violation of the understanding between the parties?

But it is unnecessary to resolve this question. Suffice it to say that, in these circumstances, it cannot justly be said that the Appellate Division abused its discretion by vacating the default. At most, all the bank failed to do was commit the undisputed stipulation to writing or burden the court with a routine motion for a short extension, the grant of which was all but inevitable.

To this we add that (a) plaintiffs’ suit was not started until two years after their medical bills had been rejected, (b) this helps explain why no prejudice ensued for the plaintiffs and it is noteworthy that none is ascribed to the relatively short “delay” in answering before the “default” judgment was taken so precipitously, and (c) presumably, the bank is not judgment proof, if ever the plaintiffs can demonstrate their cause has any merit.

Finally, while it should be superfluous to have to do so, I observe, as do my fellow dissenters, that, while in Barasch it was a plaintiff who was moving to open its default, here it was a defendant. A plaintiff, invoking the aid of a court, bears the burden of moving the case forward. If his claim is forfeited because of a default, all he may be losing is a claim on which he never could have succeeded. A defendant, on the other hand, is usually haled into court against his will. If charged with a default, he may find himself liable for a claim which he did not owe and which never could have been proved. Consequently, discretion to vacate defaults traditionally has been exercised more liberally in favor of defendants (see Sortino v Fisher, 20 AD2d 25, 30; Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:24, 1981-1982 Cum Ann Pocket Part, pp 263, 264). But, an ever more voracious Barasch apparently knows no limits. It is long past the time when the line should have been drawn.

For all these reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones and Meyer concur in memorandum; Judges Wachtler and Fuchsberg dissent and vote to affirm in separate dissenting opinions in each of which Judge Jasen concurs.

Order reversed, with costs, the order of Supreme Court, Richmond County, reinstated, and the question certified answered in the negative.


text:
    In the Matter of Brooklyn Society for the Prevention of Cruelty to Children, Inc., Appellant, v Barbara B. Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued May 13, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Cynthia Boyer Okrent for appellant.

      Robert Abrams, Attorney-General (Robert J. Schack and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellant agency instituted the present proceeding to require respondents to establish reimbursement rates for foster care furnished at the agency’s three diagnostic reception centers at actual audited cost. Special Term granted substitute relief (in effect that the agency be considered for reimbursement in another category) which apparently was acceptable to the agency inasmuch as it took no appeal. On appeal by respondent State agency, the Appellate Division reversed, upheld the State reimbursement rates, and dismissed the petition. We now affirm.

There is no merit to the agency’s contention before us that the State had no authority under sections 153 and 398-a of the Social Services Law to establish reimbursement rates at other than actual audited cost. Section 398-a authorizes the State department to “promulgate * * * regulations establishing standards of payment for care provided foster care children”, such standards to “include the care required to be provided for the foster child and the cost of such care”. We find no command in the statute that reimbursement shall be at actual cost, no matter how high such cost might be in the case of an individual provider of foster care (cf. Matter of Sigety v Ingraham, 29 NY2d 110). Rather, as the agency appears to agree, the question before us is whether the criteria established to qualify for certain categories of reimbursement and the rates set for such categories are arbitrary and capricious. There is nothing in the record before us in this case to warrant any such conclusion.

We decline to accept the agency’s argument that the commissioner’s criteria for emergency foster care programs and classification of group foster care homes are arbitrary and without rational basis. We agree with the Appellate Division that the record discloses a rational basis for the commissioner’s establishment of nonindividualized criteria of general application. Similarly, there is no statutory requirement that the reimbursement rates be individually determined (see Matter of Sigety v Ingraham, 29 NY2d 110, 113, supra).

Finally, we likewise reject the agency’s assertion that it was a denial of equal protection under the Federal and State Constitutions to establish differing reimbursement rates for public and private agencies providing care for foster children. The standard for our determination is whether a rational basis exists for the action of the State department. We conclude that this standard is met in this instance, if only for the reason that the commissioner could have concluded that expenditures by public agencies are subject to a significantly greater public accountability and examination (calculated to assure restraint) than are the comparable fiscal operations of private agencies.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Bernice Levyn, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.

      Decided June 15, 1982

      APPEARANCES OF COUNSEL

      Paul Henry Janis and James R. Sandner for appellant.

      Kenneth Pawson and Robert D. Stone for Gordon M. Ambach, as Commissioner of Education of the State of New York, respondent.

      Andrew L. Sichenzie for Board of Education, Community School District No. 20 and another, respondents.
   opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. The commissioner is empowered to substitute his judgment of the proper penalty for that of the hearing panel whose action he was reviewing (Matter of Shurgin v Ambach, 56 NY2d 700). In fixing dismissal as the appropriate penalty, his decision to disregard the testimony of petitioner’s psychiatrist was not arbitrary or capricious, inasmuch as the psychiatrist had commenced treatment after the events' in question and had refused to express any opinion as to petitioner’s functions as a teacher.

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


text:
    Ronald Nieves, Appellant, v Holmes Protection, Inc., Respondent.
    Decided June 15, 1982

      APPEARANCES OF COUNSEL

      Edwin Kaufman for appellant.

      Stephen A. Weingrad for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs. We agree that plaintiff was not a third-party beneficiary of the agreement between C.G.M. Check Cashing Corporation and Holmes Protection, Inc., for provision of a burglar alarm system. Nor can it be said as a matter of law that negligence, if any, on defendant’s part was the proximate cause of the injuries suffered.

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


text:
    The People of the State of New York, Appellant, v Joseph Williams, Respondent.
    Argued May 14, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (William Schrager, Deborah Carlin Stevens and Barry A. Schwartz of counsel), for appellant.

      Peter R. Cooperman for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by former Justice James D. Hopkins at the Appellate Division (81 AD2d 418).

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


text:
    R.C.S. Farmers Markets Corporation, Respondent, v Great American Insurance Company, Appellant.
    Argued May 13, 1982;
    decided June 15, 1982

      APPEARANCES OF COUNSEL

      Francis J. Holloway for appellant:

      Franklin P. Gavin for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter should be remitted to the Appellate Division for review of the discretion exercised by Special Term in denying the motion (CPLR 3212, subd [f]).

Defendant argues that the deposition of plaintiff’s president contained sufficient factual data to require denial of plaintiff’s motion for summary judgment. It did establish from his mouth the desperate financial condition of the corporation and thus a motive for arson. Likewise it detailed the facts that though there were no such containers on the premises when he locked up the evening before the fire, after the fire the police sergeant had brought to him from inside the premises a glass container he had never seen before and inquired of him “do you know of anyone who would do anything like this to you, do you have any enemies?”, thus suggesting that the fire was incendiary in origin. Evidence of motive and incendiary origin without more is sufficient to defeat an insured’s motion for summary judgment in an action on its fire insurance policy (V.F.V. Constr. Co. v Aetna Ins. Co., 56 AD2d 598).

The affidavit of defendant’s attorney, which detailed what the police sergeant had discovered as to the incendiary origin of the fire and why an affidavit could not be obtained from the sergeant, was sufficient to authorize Special Term’s denial of plaintiff’s motion under CPLR 3212 (subd [f]). That subdivision does not require a specific request for its implementation. Though the making of such a request is certainly the more cautious tactic, all that the subdivision requires is that an affidavit make it appear “that facts essential to justify opposition may exist but cannot then be stated”. By hypothesis, therefore, the subdivision contemplates an affidavit detailing hearsay and the reason why it cannot be presented in admissible form. Moreover, bearing in mind that the subdivision is intended to protect the party “in opposition to the motion,” we think the Appellate Division’s emphasis on the fact that defendant had had time to obtain disclosure pursuant to CPLR 3101 is misplaced, especially in a case such as the present in which although the action was begun in September, 1976, plaintiff’s motion for summary judgment was not made until March, 1979, and then not until after a CPLR 3216 demand had been made by defendant. To require defendant in order to protect itself against a summary judgment motion to have taken the deposition of the police sergeant instead of simply awaiting his testimony under subpoena at the trial is to give plaintiff a disclosure advantage not contemplated by the CPLR. Indeed, it is just such tactics as plaintiff’s summary judgment motion on the eve of a trial, which plaintiff could long since have sought, that CPLR 3212 (subd [f]) was intended to protect against (cf. Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 192).

Because defendant’s papers were sufficient to require invocation of the protection of subdivision (f) against the granting of plaintiff’s motion, the Appellate Division order was in error. But because that subdivision authorizes either a denial, a continuance or such other order as may be just, and the Appellate Division exercises the same discretion as does Special Term, the matter should be remitted to the Appellate Division for its review of the discretion exercised.

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

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


text:
    Joyce Barry, as Administratrix of the Estate of Leonard Barry, Also Known as Leonard Blashe, Deceased, Appellant, v Good Samaritan Hospital et al., Defendants, and Elias N. Tsoukas, Respondent.
    Decided June 15, 1982
    APPEARANCES OF COUNSEL

      Milton B. Shapiro for appellant.

      Arthur Gang for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and the case remitted to the Appellate Division. The Appellate Division exercises the same discretion as does Special Term and may modify a Special Term order in the exercise of discretion even though it cannot be said that Special Term abused its discretion (Matter of Attorney-General of State of N. Y. v Katz, 55 NY2d 1015, 1017). Here, however, the Appellate Division’s modification was on the law. Because the Special Term order was not an abuse of discretion as a matter of law, there must be a reversal of the Appellate Division order and a remittal to that body for its further consideration on the facts and in the exercise of discretion.

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


text:
    City of Rochester, Respondent, v Angelo Chiarella et al., Appellants.
    Decided June 15, 1982
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Lizza Inds. v Long Is. Light. Co., 36 NY2d 754; Walker v Sears, Roebuck & Co., 36 NY2d 695.)


text:
    Boris Lurie, Appellant, v Stralu 48 Realty Corp. et al., Respondents. Boris Lurie, Appellant, v True Porcelain Co., Inc., et al., Respondents.
    Submitted May 3, 1982;
    decided June 15, 1982
   Motion for leave to appeal and, on the court’s own motion, appeal taken as of right, insofar as they seek leave to appeal and appeal from so much of the Appellate Division order as affirmed the order denying appellant’s motion to vacate the default judgment confirming the arbitration award, dismissed, without costs, each upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal as of right otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved; motion for leave to appeal otherwise denied.


text:
    In the Matter of Annette Michaels, Appellant, v Herbert Michaels, Respondent.
    Argued June 7, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Steven Kraft for appellant.

      Gary N. Weintraub for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for a review of the facts.

Inasmuch as the request here for increased child support was predicated on the child’s right to receive adequate support, it was not necessary to demonstrate an unanticipated and unreasonable change in circumstances to justify an increase (see Matter of Brescia v Fitts, 56 NY2d 132, 138-140). It is sufficient in such a case that a change in circumstances has occurred warranting the increase in the best interests of the child. And, on this record, it cannot be said as a matter of law that the circumstances shown did not warrant an increase in the child support originally provided in the divorce decree (see id., at pp 140-141).

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

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


text:
    John Doe, Doing Business as Capri Art Theatre, Appellant, v City of Buffalo et al., Respondents.
    Argued May 12, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Frank S. Kedzielawa and Paul J. Cambria, Jr., for appellant.

      Joseph P. McNamara, Corporation Counsel (William E. Carey and Patricia A. Pancoe of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified so as to declare that portion of section 16 (subd [17], par 1, cl [e]) of chapter 70 of the Buffalo City Ordinances unconstitutional insofar as it requires an applicant for an adult use permit to disclose “such other information as the director of licenses and permits shall require.” As so modified, the order should be affirmed, with costs.

We agree with the Appellate Division that, as applied to plaintiff, the registration requirements of section 31 of chapter 7 of the Buffalo City Ordinances are not violative of the Fifth and Fourteenth Amendments. However, by conditioning the grant or denial of a permit to operate an adult theatre upon the filing of an application containing “such other information as the director of licenses and permits shall require”, section 16 (subd [17], par 1, cl [e]), in effect, confers open-ended discretionary, power upon the director of licenses and permits in an area potentially affecting the free exercise of First Amendment rights. As such, this portion of the ordinance is void on its face. (See, e.g., Shuttlesworth v City of Birmingham, 394 US 14.7; Staub v City of Baxley, 355 US 313; Lovell v Griffin, 303 US 444; see, generally, Tribe, American Constitutional Law, §§ 12-32 — 12-35.) Nor is plaintiff’s challenge to the ordinance premature inasmuch as it is the mere existence of such unbridled discretion, as opposed to its actual use, which renders this provision of the ordinance constitutionally offensive.

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

Order modified, with costs to appellant, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Louis Hodes et al., Appellants, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents. In the Matter of Fred Springer, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Decided June 17, 1982

      APPEARANCES OF COUNSEL

      Cornelius D. Murray for appellants.

      Robert Abrams, Attorney-General (Lew A. Millenbach and Alan W. Rubenstein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), the judgments of the Appellate Division should be reversed, without costs, the petitions granted, and the determinations annulled.

Consistent with our general rule of appellate review, we decide these cases on the basis of the law which exists today (Strauss v University of State of N. Y., 2 NY2d 464, 467). Subdivision 5 of section 2806 of the Public Health Law, as amended, effective July 17, 1981, provides for automatic revocation of nursing home certification upon the holder’s conviction of, inter alia, an industry-related felony. Subdivision 2 of section 701 of the Correction Law bars automatic revocation of a license where the holder has been issued a certificate of relief from disabilities pursuant to article 23 of the Correction Law. In the present cases, section 701 of the Correction Law barred the automatic revocation of petitioners’ licenses inasmuch as petitioners had received certificates of relief from civil disabilities pursuant to article 23 of the Correction Law. Accordingly, respondent erred in revoking the operating certificates held by these petitioners. The unfortunate result produced by the interrelationship of subdivision 5 of section 2806 of the Public Health Law and section 701 of the Correction Law does not go unnoticed by this court. Amelioration of the problem, however, is properly left to the Legislature.

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

In each case: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment reversed, without costs, petition granted and determination annulled in a memorandum.


text:
    In the Matter of Split Rock Nursing Home, Respondent, v Office of Health Systems Management of the Department of Health of the State of New York et al., Appellants.

      Decided June 17, 1982

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Alan W. Rubenstein of counsel), for appellants.

      David B. Bernfeld for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment insofar as appealed from by State respondents, reversed, without costs, and order of Director of Office of Health Management Systems reinstated as it pertains to petitioner’s incentive allowance. The Director of the Office of Health Management Systems did not act arbitrarily or unreasonably in this case in disallowing petitioner’s incentive allowance for the years at issue. Accordingly, the determination of the director must be sustained (Matter of Cortlandt Nursing Care Center v Whalen, 46 NY2d 979).

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


text:
    In the Matter of Thomas Gray et al., Appellants, v Everett W. Jones, as Superintendent of Great Meadow Correctional Facility, et al., Respondents.
    Argued June 8, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Dennis A. Kaufman and David Leven for appellants.

      Robert Abrams, Attorney-General (Diane De Furio Foody and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order reversed, without costs, and the matter remitted to Supreme Court, Washington County, with directions to dismiss the proceeding on the ground that the issues presented are moot. Petitioners are no longer confined in special housing and thus subjected to the restricted diet, want of medical care and lack of exercise of which they complain.

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


text:
    Alexander Ardwin, Doing Business as Expansion Contractors, Respondent, v Chris Englert et al., Appellants.
    Decided June 17, 1982

      APPEARANCES OF COUNSEL

      Robert J. Hines for appellants.

      Dirk A. Galbraith for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. The record is insufficient as a matter of law to support a finding that at the time the contract was entered into by the parties defendants had disclosed to plaintiff that they were acting as corporate officers of East Hill Foods, Inc., rather than individually. It is beyond the power of this court to make the new findings of fact which would be required to sustain a judgment in favor of defendants on a theory that several separate, unilateral contracts, rather than a single contract, were made.

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


author: Meyer, J.

text:
    Frances S. Daghir, Appellant, v Khalil S. Daghir, Respondent.
    Argued April 1, 1982;
    decided June 17, 1982

      APPEARANCES OF COUNSEL

      Kathryn S. Lazar, Charlotte M. Frank and Laura Zeisel for appellant.

      James E. Coombs and Jeffrey C. Richards, for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly reversed the order of Family Court for error of law. The Family Court had based its decision only on a balancing of the interests of the husband and the wife without making any determination as to the best interests of the children — the legally dispositive issue. Because the Family Court did not consider this issue it can be said, as did the Appellate Division, that the Family Court erred as a matter of law. The appellate court then proceeded to exercise its fact-finding authority and responsibility and determined that the best interests of the children would be served by prohibiting their removal from New York State and awarding temporary custody to the father during the mother’s absence from the State for the purpose of giving effect to the father’s right of visitation. This is not, therefore, a classic custody case in which we are often called on to choose between differing factual assessments as to the best interests of the children (cf. Eschbach v Eschbach, 56 NY2d 167). In this instance we would disturb the disposition at the Appellate Division only if we were to conclude that it was erroneous as a matter of law. No such conclusion can be drawn on the record before us (cf. Priebe v Priebe, 55 NY2d 997; Weiss v Weiss, 52 NY2d 170).

Meyer, J.

(dissenting). The majority’s conclusion that the Appellate Division did not err as a matter of law and that the Family Court Judge did is not sustainable on the record. Indeed, exactly the opposite is true. Moreover, its conception that the custody of a child can be changed “for the purpose of giving effect to the father’s right of visitation” without consideration of any of the many other factors involved in the determination of the child’s best interest is so inconsistent with precedent that I cannot join in it. Respectfully, therefore, I dissent.

The majority memorandum makes no reference to the proceeding underlying the Appellate Division order. It was an application by defendant father, made to the Supreme Court which had granted plaintiff wife a divorce by reason of the cruel and inhuman treatment of her by defendant. The relief which it sought was that plaintiff, as custodial parent, be prohibited from removing the three children of the marriage, ages 15, 13 and 9, from the State without defendant’s written consent, the enlargement of defendant’s visitation privileges, and “in the alternative” that if plaintiff wished to reside in France the children shall remain in New York with defendant as custodial parent until plaintiff returns. The affidavit on the basis of which the order to show cause initiating the proceeding was obtained recited the divorce, plaintiff’s remarriage to Joseph Coughlin, the fact that the divorce judgment, a copy of which was annexed, provided that the children were not to be removed from the State without plaintiffs consent, that defendant had learned that plaintiff’s new husband had “applied for transfer, or has been assigned, as the case may be, to France,” that defendant would be irreparably damaged if the children were removed to France, that the reason for the move by plaintiff and her husband to France should be examined as to its necessity and where the best interests of the children weighed in the decision, that if plaintiff and her husband desired to go to France defendant should become the custodial parent until their return and that lesser solutions “are empty.” The affidavit said nothing about defendant’s ability to provide a home and proper supervision for the children if custody was awarded to him.

The judgment of divorce had given custody of the children to plaintiff. Included in the findings on which it was based were that on June 1,1974, defendant left the marital home without informing his wife or making provision for the support of plaintiff and the three children and remained away in Lebanon for some 18 days, that there had been much argument over the religious upbringing of the children, that defendant had threatened to move back to Lebanon and take the children with him notwithstanding plaintiff’s objections and that “plaintiff has provided a good home for the children during the period the parties have lived apart; and, further, the defendant is unable to adequately care for the children while working full time and that there is some basis that the granting of custody to the defendant would result in their being removed to Lebanon on a permanent basis.”

The record contains no answering papers from plaintiff. It shows that on the return day of the order to show cause, the application was transferred from Supreme Court to Family Court, and that when a hearing was held in Family Court one week later defendant’s only witness was James Heenan of IBM, Joseph Coughlin’s employer, who testified concerning the circumstances under which Coughlin was being transferred to France. Defendant was not called as a witness nor did his attorney offer any additional witnesses or evidence other than to suggest that the Judge might want to examine the children, an offer which the Judge declined.

There followed oral arguments by the two attorneys, after which the Judge dictated his decision into the record and directed that the minutes as transcribed be deemed the order. He found that the move to France was only temporary and that it had not been initiated or precipitated by plaintiff and Mr. Coughlin, that there was neither bad faith nor malice on plaintiff’s part, that the defendant’s visitation would be somewhat reduced but that that would be accommodated by providing additional and alternative visitation and reducing support. He, therefore, denied the request to restrain plaintiff from taking the children to France, but reduced defendant’s support payments so as to save him $4,000 per year, increased his summer visitation from two weeks to 30 days, required plaintiff to pay the cost of transporting the children back and forth for that visitation, and gave defendant such additional visitation in France as the parties could agree upon, but not less than one week, to coincide with the Christmas, Easter or spring vacation of the children. The effect, the Judge noted, if defendant took the total time available would be that he would spend more time per year with them than provided for by the divorce decree.

Thus, although the decision made no specific reference to defendant’s alternative request for transfer of custody to defendant, the Family Court Judge denied both branches of defendant’s application. By clear implication, though not in so many words, he found that it was in the best interests of the children that they remain in plaintiff’s custody and that their loss of visitation with defendant during the two-year period the Coughlins were expected to be abroad would be sufficiently compensated by the revised visitation ordered so as not to affect their interest detrimentally. Because the children had been in plaintiff’s custody for some five years after the divorce court found it in their best interest that she have custody, there was no need for evidence or additional findings concerning plaintiff’s ability to care for them properly.

The same cannot be said, however, with respect to defendant, as to whom the divorce court had made an explicit finding that he could not adequately care for the children while he wurked full time. Nevertheless, defendant, who as applicant for a change of custody had the burden of negating the prior finding and proving just how the children would be cared for in his custody, did not even take the stand. Yet despite the absence of any such indication, either in evidentiary or affidavit form, the Appellate Division majority, reversing, “granted temporary custody of the children to the defendant for so long as the plaintiff shall reside outside of New York State.” It did so on the basis of the rule declared by it in Strahl v Strahl (66 AD2d 571, 574, affd 49 NY2d 1036) that visitation between a noncustodial parent and his or her children is so important that the parent may not be deprived of reasonable and meaningful access to the children unless visitation “is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access.” It recognized that a custodial parent has a right to remarry, which may require a change of locale, but noted that there is an obligation to protect the relationship of the children with the noncustodial parent which may require sacrifices by the custodial parent. The rule governing such cases was, therefore, the “reasonable accommodations of the rights and needs of all concerned, with appropriate consideration given to the good faith of the parties in respecting each other’s parental rights.” (82 AD2d, at p 195.)

Against that rule, the majority at the Appellate Division analyzed the facts and concluded on balance that the Family Court order unjustifiably and unreasonably interfered with defendant’s right to meaningful visitation and was contrary to the children’s best interests. The reasons given were that it would separate a loving and devoted father from his children for two consecutive periods of one year each, it being speculative to suggest that defendant would be able to visit the children in France, that although the number of visitation days per year is an important consideration, the frequency and regularity of visitation was far more significant, that it was misleading to speak of the move as temporary because there was no guarantee that at the end of the two-year period the children would return to the area in which defendant lives and works, that the Coughlins were not compelled to move to France, he having accepted the position without increase in pay or other career benefit than that it would enrich his dossier, and that plaintiff had not married Coughlin until after he accepted the position in France, and had concealed the move from defendant. That decision made as the Appellate Division order states “on the law” is (1) erroneous as a matter of law because made in the face of the divorce court’s finding that defendant was not a proper custodian and without any evidence that there had been any change in his situation, and (2) an abuse of discretion as a matter of law because custody should not be changed to punish one parent or enforce the rights of the other but only when it has been shown to be in the child’s best interest to do so.

The impropriety of awarding custody to defendant was pointed , out by the dissenting Justices at the Appellate Division, who after noting the divorce court’s finding that defendant could not adequately care for the children, protested that “Custody is now being transferred by this court upon a record that does not adequately explore the crucial issue of the father’s present ability to maintain the care and custody of the children.” (82 AD2d, at p 197.) On exactly such a basis both the Appellate Division, Fourth Department, in People ex rel. Yaklin v Yaklin (19 AD2d 405), and the Appellate Division, First Department, in People ex rel. London v London (9 AD2d 663), have remanded to the Supreme Court for a further hearing. In Yaklin, a separation agreement gave custody to the father. One year later the mother sought in a habeas corpus proceeding to have custody changed but the habeas court awarded custody to the father. The mother some three years after the first proceeding again sought to have the order amended to grant her custody, noting that the father had moved to Michigan and taken the children with him, which prevented her from having visitation. Solely on the basis of the move to Michigan the amendment requested was granted. Pointing out that there was no testimony concerning the conduct and morals of the parties since the first habeas order was made, the Appellate Division remanded so that proof could be “taken as to the fitness of the mother as of the date that the court awarded her custody and so that the lower court could order an investigation by the probation department or a social agency in the family field.” The more is that ruling applicable to the present case, which not only contains no findings and no evidentiary basis for findings on defendant’s fitness and capability, but also contains neither findings nor basis therefor with respect to the effect on the children of being separated from their mother with whom they have lived all their lives.

Nor is the Yaklin-London concept confined to the First and Fourth Departments, for the Second Department has itself, at least inferentially, recognized the need for a full hearing as to all factors by emphasizing in Munford v Shaw (84 AD2d 810) that such a hearing, including the expert testimony of a psychologist, supported the custody order made in that case. Moreover, the holding of such a hearing is mandated by subdivision 1 of section 240 of the Domestic Relations Law which provides that in any proceeding related to custody “the court must give * * * direction, between the parties, for the custody * * * of any child of the parties” based upon “the circumstances of the case and of the respective parties and * * * the best interests of the child” and that there is “no prima facie right to * * * custody * * * in either parent” (emphasis supplied). Clear from a reading of the section, moreover, is the fact that it applies both to an original award of custody and to the modification of such an award. Moreover, as is stated in both decisional and statutory law, stability is a factor of overweening importance in the development of a child (Matter of Nehra v Uhlar, 43 NY2d 242, 250; Obey v Degling, 37 NY2d 768, 770; Matter of Lang v Lang, 9 AD2d 401, 409, affd 7 NY2d 1029; Matter of Norman, 26 Misc 2d 700, 704; Domestic Relations Law, § 75-b, subd 1, par [d]).

A related but separate reason why we should reverse and remit is that in ordering a change in custody “for the purpose of giving effect to the father’s right of visitation” without consideration of the many other factors involved in the determination of the best interests of the children the Appellate Division abused its discretion as a matter of law. Its repeated reference (82 AD2d, at pp 192,196) to the fact that when plaintiff and Joseph Coughlin married, Coughlin had already accepted the position in France and that she had not by the date of defendant’s application informed defendant directly of the impending move strongly suggests that it was more concerned with punishing plaintiff than it was in being guided strictly by what under all the circumstances was in the best interests of the children (Brooks v Brooks, 20 Ore App 43, pet for review den id.). In Brooks the mother had been awarded custody in a prior Montana divorce decree but after she moved to Oregon with the children the Montana court modified its decree to award custody to the husband. The Oregon court held the Montana modification order subject to further modification in Oregon because (20 Ore App, at p 50) “from our examination of the record it appears that this order was made without any evidence as to the circumstances of the children, and solely on the basis of the nonresident father’s allegations of interference by the mother with his legal rights of visitation and periodic custody. Under these circumstances we conclude that the order was punitive, viz., to discipline the mother for alleged interference with the father’s visitation rights, and was therefore subject to appropriate judicial inquiry and possible modification by another court in the state in which the children were physically present.”

The strong policy of New York not to permit custody awards to be made for a punitive" purpose is evident from both decisional and statutory law. Because, as was forcefully stated in Matter of Bachman v Mejias (1 NY2d 575, 582), “A child is not a chattel”, we have declined to accord full faith and credit or res judicata effect to a foreign State proceeding when the best interests of the child dictated otherwise {id.; Matter of Berlin v Berlin, 21 NY2d 371, 377, cert den 393 US 840). Likewise, we have ignored both rules of comity as to foreign country decrees and irresponsible and contemptuous conduct toward the court on the part of the parent to whom custody is awarded, when the child’s best interests were that custody be with that parent (Matter of Lang v Lang, 9 AD2d 401, 409-410, affd 7 NY2d 1029, supra). The weight of out-of-State authority is in accord (Bodenheimer, Progress Under the Uniform Child Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal L Rev 978, 982, 1006). Moreover, in Cmaylo v Cmaylo (76 AD2d 898, 899) where Special Term in refusing to permit plaintiff mother to take the children to Texas after her remarriage gave great weight to the fact that plaintiff knew before her second marriage of her future husband’s prospective move, the Appellate Division, Second Department, reversing, noted “that this is not a determinative factor, and should not be used to punish plaintiff or the children.”

Professor Bodenheimer suggests that a punitive custody change may violate the custodial parent’s constitutional right to travel (op. cit., at p 1008; see, also, D’Onofrio v D’Onofrio, 144 NJ Super 200, 208, n 1, affd 144 NJ Super 352). One need not go so far, however, for the clear implication of the Uniform Child Custody Jurisdiction Act (Domestic Relations Law, §§ 75-a — 75-z) is that while improper removal of a child from the custody of the custodial parent may be considered in deciding whether to modify a foreign State custody decree, a change may nevertheless be ordered if “required in the interest of the child” (Domestic Relations Law, § 75-i, subd 2). A fortiori, therefore, in the situation of the present case, the children having lived with plaintiff all their lives and been in her sole custody for the last five years, the act does not permit change of the custody of the Daghir children without plenary consideration of their best interests. The Appellate Division order is, for this additional reason, erroneous as a matter of law.

More distressing than the failure of the majority to recognize and correct by remitting for further hearing the errors of law which infect the Appellate Division order is the jurisprudential result of its conclusion. For whatever reason the issue before us in this case has in recent years been litigated with increasing frequency. Thus, in the last five months we have had before us not only the instant case but Priebe v Priebe (55 NY2d 997, supra) and in the two preceding years have decided Weiss v Weiss (52 NY2d 170) and Strahl v Strahl (49 NY2d 1036, supra). Yet in none of those cases except Weiss, which dealt with but one small phase of the problem but made clear in so doing that it is the physical and emotional well-being of the child as well as the “rights” of the parent that are determinative, has anything been written by us that gives guidance to the courts below. The need for guidelines is, however, apparent from the varying decisions, many acknowledging the difficult choices involved, in the lower courts (Martinez v Konczewski, 85 AD2d 717, cross app dsmd 56 NY2d 592; Munford v Shaw, 84 AD2d 810, supra; Dean v Dean, 79 AD2d 876, mot for lv to app den 52 NY2d 706; Cmaylo v Cmaylo, 76 AD2d 898, supra; Todaro v Todaro, 76 AD2d 816; Becker v Becker, 75 AD2d 814; Sipos v Sipos, 73 AD2d 1055; Matter of Burkart v Montemarano, 72 AD2d 561; Rusin v Rusin, 103 Misc 2d 534; Matter of O’Shea v Brennan, 88 Misc 2d 233; Kovesdy v Hines, 75 Misc 2d 644; Archibald v Archibald, NYLJ, March 10,1981, p 12, col 5; see Bazant v Bazant, 80 AD2d 310).

It is, of course, beyond the proper scope of a dissenting opinion to attempt to set forth guidelines. It does not appear amiss, however, to point out that guidelines have been suggested in out-of-State decisions (e.g., D’Onofrio v D’Onofrio, 144 NJ Super 200, affd 144 NJ Super 352, supra), and that in substantial respects New York cases appear to deviate from the majority view (see Ann., 15 ALR2d 432; 154 ALR 552). In particular, as concerns the facts of this case, courts in other States are much more willing to accept an increase in visitation and reduction in support payments as a means of working out the problem, and are much less prone than was the majority below to adopt pejorative inferences (see, e.g.,D’Onofrio v d’Onofrio, supra; Hale v Hale, 429 NE2d 340, 345 [Mass], supra; Matter of Lower, 269 NW2d 822, 826 [Iowa]; Matter of Ehlen, 303 NW2d 808 [SD]).

There should be a reversal.

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

Order affirmed, with costs, in a memorandum.

      . Nothing in Priebe v Prie.be (55 NY2d 997) contradicts that concept for the Appellate Division decision in that case was based upon a record after full hearing (see 81 AD2d 746). The need for a hearing on all factors is also recognized in out-of-State cases, for example, Hale v Hale (429 NE2d 340, 345 [Mass]), in which the Supreme Judicial Court of Massachusetts reversed and remanded for further proceedings because “while the trial judge considered one important factor, the children’s need for weekly visitation by the noncustodial parent, we cannot ascertain whether he also took into account other, perhaps even more important, factors bearing upon their best interests.” (Generally, see 1 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 14 [7] [A], p 14-84; and Ann., 15 ALR2d 432; 154 ALR 552.)

      . We have in Matter of Nehra v Uhlar (43 NY2d 242) and more recently in Friederwitzer v Friederwitzer (55 NY2d 89) and Esehbach v Eschbaeh (56 NY2d 167) reviewed many of those factors. A concise and complete list of factors is set forth in Devine v Devine (398 So 2d 686, 696-697 [Ala]), in which the Supreme Court of Alabama noted the importance of the sex and age of the child as factors to be considered, and directed the Trial Judge to “go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

      . Not without significance in assessing the punitive nature of the Appellate Division order is the fact that its order grants “temporary custody of the children to the defendant for so long as the plaintiff shall reside outside of New York State.” Whether it would be in the best interests of the children to return to plaintiff’s custody after living with defendant for two years certainly cannot be foretold at the beginning of the two-year period. Temporary custody should be awarded only pending a full hearing on the best interests of the child. When that has been determined the award made should be permanent, though of course subject to possible later modification on a proper showing. For the Appellate Division to have ordered a “temporary custody” change of possible two-year duration (or, according to its view, even longer) makes evident that it was not acting with the best interests of the children in perspective.

      . That the second husband in Cmaylo worked for American Airlines and, therefore, could obtain free air transportation between New York and Texas for the children does not distinguish the instant case in view of the Family Court’s reduction of $4,000 in the support payments Mr. Daghir was required to make under the divorce decree and the further requirement that Mrs. Daghir pay transportation costs for the three children from France to New York and back for the summer visitation period.

      . Section 75-b (subd 1, par [e]) of the Domestic Relations Law states that one purpose of the act is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” Subdivision 1 of section 75-i permits a court in making an original award to consider, if just and proper under the circumstances, that petitioner has wrongfully taken the child from another State. With respect to a change of a prior custody award, however, subdivision 2 of section 75-i recognizes, by the words quoted in the text above, that change may not be in the best interests of the child.