text:
    In the Matter of Cleo K.-H., a Child Alleged to be Abused. New York City Department of Social Services, Respondent; Kim H., Appellant.
    Submitted June 17, 1991;
    decided July 2, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay and calendar preference dismissed as academic.


source: Caselaw Access Project

license: Public Domain

text:
    Jerome Levin, Appellant, v American Savings Bank, Respondent.
    Submitted May 13, 1991;
    decided July 2, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 M).


text:
    Margarita Minino et al., Respondents, and Maria Ruiz, Intervenor-Respondent, v Cesar Perales, as Commissioner of the New York State Department of Social Services, Appellant, et al., Defendant.
    Submitted May 13, 1991;

      decided July 2, 1991
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    Madeline Silver, Appellant, v City of New York, Respondent.
    Submitted May 28, 1991;
    decided July 2, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Patrick Lewis-Moors et al., Respondents, v Contel of New York, Inc., Appellant.
    Decided July 9, 1991

      APPEARANCES OF COUNSEL

      Timothy J. Perry for appellant.

      Scott Clippinger for respondents.
   OPINION OF THE COURT

Memorandum.

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

Under Labor Law § 240 (1), a "structure” is "any production or piece of work artificially built up or composed of parts joined together in some definite manner” (Caddy v Interborough R. T. Co., 195 NY 415, 420). Accordingly, the Appellate Division correctly held that a telephone pole with attached hardware, cable and support systems constitutes a structure within the meaning of that section. We have reviewed defendant’s remaining argument and conclude it is without merit.

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

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


text:
    Hudson-Port Ewen Associates, L.P., Respondent, v Chien Kuo et al., Appellants, et al., Defendant.
    Decided July 9, 1991

      APPEARANCES OF COUNSEL

      Stephen M. Rathkopf and Arthur G. Jakoby for appellants.

      Robert S. Carlson for respondent.
   OPINION OF THE COURT

Memorandum.

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

Where consideration of a contract as a whole resolves the ambiguity created by one clause, there is no occasion to consider extrinsic evidence of the parties’ intent (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162-163). We agree with the Appellate Division majority that the contract in this case, read as a whole, establishes that it was defendants’ duty to convey both an insurable title and title which was free of all encumbrances save those specified in the contract. As there is no dispute that the title was subject to two unspecified encumbrances, plaintiff was not required to perform under the contract, and summary judgment was properly granted for plaintiff on its cause of action seeking return of its down payment and the cost of the title search.

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

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


text:
    In the Matter of Sutton Area Community et al., Respondents, v Board of Estimate of City of New York et al., Appellants, and Glick Development Affiliates, Intervenor-Appellant.
    Decided July 9, 1991

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Fred Kolikoff of counsel), for appellants.

      Eric Bregman, David Paget and Michael D. Zarin for intervenor-appellant.

      Mitchell S. Bernard for respondents.

      Jeffrey L. Braun and Richard G. Leland for Real Estate Board of New York, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The record, viewed as a whole, reveals that the Board was fully informed of all pertinent environmental issues, including those dealing with the sewage treatment plant change, and considered these numerous factors before approving the project. Accordingly, the "hard look” standard of judicial review is satisfied and the determination must be confirmed (see, Akpan v Koch, 75 NY2d 561).

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

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


text:
    Joseph Riley, Appellant, v Life Insurance Company of North America et al., Respondents, et al., Defendants.
    Argued May 29, 1991;
    decided July 9, 1991

      APPEARANCES OF COUNSEL

      Michael J. Hutter for appellant.

      David R. Sheridan for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (159 AD2d 869).

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


text:
    Advanced Refractory Technologies, Inc., et al., Appellants, v Power Authority of State of New York, Respondent.
    Submitted May 13, 1991;
    decided July 9, 1991
   Motion by plaintiff O’Laughlin for leave to appeal denied; motion for leave to appeal otherwise dismissed upon the ground that as to the other moving plaintiffs the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Daniel R. Hodge, Appellant, v New York State Department of Education et al., Respondents.
    Submitted May 28, 1991;
    decided July 9, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Donald Marcus, Appellant, v Wilbur A. Levin, as Commissioner of Jurors, Kings County, et al., Respondents.
    Submitted June 24, 1991;
    decided July 9, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Raymond Mirrer, a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 24, 1991;
    decided July 9, 1991
   Appeal, insofar as taken from the July 3, 1990 order of the Appellate Division, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the December 11, 1990 order of the Appellate Division, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Rose V., Appellant, v Commissioner of Social Services, Respondent.
    Submitted June 24, 1991;
    decided July 9, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Jankie Chattergoon, as Administrator of the Estate of Rampatti Chattergoon, Deceased, Appellant, v New York City Housing Authority, Respondent.
    Decided July 1, 1991

      APPEARANCES OF COUNSEL

      Arnold E. DiJoseph III for appellant.

      Raymond T. Munsell 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, and certified question not answered as unnecessary. The Appellate Division did not abuse its discretion as a matter of law in denying petitioner leave to serve a late notice of claim (General Municipal Law § 50-e [5]).

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


text:
    In the Matter of Rachel Sady et al., Appellants, v J. Emmett Murphy, as Administrative Judge of the City Court of the City of Yonkers, et al., Respondents.
    Submitted August 28, 1991;
    decided August 28, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of William F. Wray.
    Decided September 5, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable William F. Wray is suspended, with pay, effective immediately from his office of Town Justice of the Town of Clarkstown, Rockland County, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


text:
    George Terry, Respondent, v Young Men’s Hebrew Association of Washington Heights, Inc., Appellant and Third-Party Plaintiff-Respondent. Careful Cleaning Contractors, Third-Party Defendant-Appellant.
    Decided September 10, 1991

      APPEARANCES OF COUNSEL

      Michael H. Bernstein and Joan A. Berk for appellant.

      Andrew Sapon for third-party defendant-appellant.

      Steven J. Seiden 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. Certified question answered in the affirmative. Appellants’ principal argument, that Labor Law § 202 preempts the strict liability provisions of Labor Law § 240 (1), is unpreserved for this Court’s review, and therefore we do not pass on it. Appellants’ remaining argument, that issues of fact exist precluding summary judgment, is without merit.

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


text:
    Brian E. Weiss, D.D.S., P. C., Appellant, v Steven Miller et al., Respondents.
    Argued May 30, 1991;
    decided September 10, 1991

      APPEARANCES OF COUNSEL

      Alan E. Golomb for appellant.

      Stephen R. Krawitz for respondents.
   OPINION OF THE COURT

Memorandum.

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

The trial court, as affirmed by the Appellate Division, dismissed plaintiff’s claim for compensatory damages for defendant’s wrongful copying and use of plaintiff’s patient lists. On this record, we find no reason to disturb the conclusion that plaintiff’s proof of lost profits was too speculative. As the trial court stated, plaintiff "produced no hard evidence of any damage”. The court noted that plaintiff’s only proof of damages was the testimony of its accountant who "managed to make a great deal of his testimony baffling and elusive”, used methods in arriving at damages that "trouble[d] the court” and failed to provide the court with "any of the documents that would have reflected gross receipts for the relevant periods of time”.

Given this deficiency in plaintiffs proof, we need not address any other ground relied upon by the courts below as support for allowing only nominal damages.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Dimitri Leonidow, Appellant.
    Decided September 10, 1991

      APPEARANCES OF COUNSEL

      Richard A. Rothermel, Public Defender (Peter R. Bereskin of counsel), for appellant.

      Robert P. Nydam, District Attorney (Michael V. Coccoma of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The evidence supporting the defendant’s conviction for second degree robbery was legally sufficient and there is no basis to conclude that the Appellate Division failed to exercise its factual review powers required by People v Bleakley (69 NY2d 490).

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


text:
    Ba Mar, Inc., Respondent-Appellant, v County of Rockland, Appellant-Respondent.
    Submitted June 24, 1991;
    decided September 10, 1991
   Motion for leave to appeal denied. Cross motion for reargument of motion for leave to appeal denied. [See, 78 NY2d 877.]


text:
    In the Matter of Kevin J. Delahunty, Appellant, v Board of Trustees of the New York City Fire Department et al., Respondents.
    Submitted July 8, 1991;
    decided September 10, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Francis J. Doersam, Claimant, v Oswego County Department of Social Services, Respondent. Workers’ Compensation Board, Appellant.
    Submitted July 1, 1991;
    decided September 10, 1991
   Motion to dismiss appeal denied.


text:
    Sarah Eisenberg, Appellant, v Jacques Weiss, Respondent.
    Submitted June 24, 1991;
    decided September 10, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of Douglas J. Gould, Appellant, v Joseph Costello, as Superintendent of Mid-State Correctional Facility, et al., Respondents.
    Submitted June 17, 1991;
    decided September 10, 1991
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    Michele Launders, Individually and as Administratrix of the Estate of Baby Girl Launders, Also Known as Lisa, et al., Appellants, v Joel Steinberg et al., Respondents.
    Submitted June 17, 1991;
    decided September 10, 1991
   Motion for leave to appeal as against defendant New York Infirmary Downtown Beekman Hospital denied with $100 costs and necessary reproduction disbursements to Steinberg and city respondents only; motion for leave to appeal otherwise dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Paul Saltzman, Respondent-Appellant, and Harold L. Wohl, Appellant-Respondent.
    Submitted June 24, 1991;
    decided September 10, 1991
   Motion for leave to appeal denied. Cross motion for imposition of sanctions denied.


text:
    In the Matter of Doris L. Sassower, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted July 29, 1991;
    decided September 10, 1991
   Motion for leave to appeal denied. Motion to seal records denied. Motion for a stay dismissed as academic.


text:
    Susi Contracting Company, Inc., Respondent, v Hartford Accident & Indemnity Company, Appellant.
    Submitted June 17, 1991;
    decided September 10, 1991
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Ultracashmere House, Ltd., Appellant, v Kenston Warehousing Corporation, Defendant, and Stecher Jaglom & Prutzman, Respondent.
    Submitted April 22, 1991;
    decided September 10, 1991
   Motion for leave to appeal from so much of the Appellate Division order as dismissed the appeal from Supreme Court’s May 23, 1989 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of David G. Proud, Respondent, v Marguerite L. Relin et al., Constituting the Monroe County Board of Elections, et al., Appellants.
    Decided September 11, 1991

      APPEARANCES OF COUNSEL

      Patrick M. Malgieri, County Attorney (Raymond J. Lum of counsel), for Monroe County Board of Elections, appellant.

      Louis B. Cristo for Committee to Fill Vacancies, appellant.

      Sheldon W. Boyce for William D. Reilich, appellant.

      Gerald P. Cleary 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, without costs, for the reasons stated in the memorandum of the Appellate Division (176 AD2d 1197).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa. Judge Hancock, Jr., dissents and votes to reverse for the reasons stated in the opinion by Justice Raymond E. Cornelius at Supreme Court, Monroe County.


text:
    The People of the State of New York, Respondent, v Harvey Shandler, Appellant.
    Decided September 12, 1991

      APPEARANCES OF COUNSEL

      Charles M. Newell for appellant.

      Robert Abrams, Attorney-General (Joseph J. Hester of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The Appellate Division properly concluded that the issues sought to be raised on appeal by defendant were waived by his guilty plea.

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


text:
    In the Matter of New York State Office of Mental Retardation and Developmental Disabilities, Respondent, v New York State Division of Human Rights, Appellant, and Peter Ramos, Complainant.
    Decided September 12, 1991

      APPEARANCES OF COUNSEL

      Rosamond Prosterman and Lawrence Kunin for appellant.

      Robert J. Foody and Paul R. Kietzman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, with costs, for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney insofar as it addresses the issue of substantial evidence to support the Commissioner’s finding of employment discrimination (168 AD2d 714, 716-717), and the matter remitted to the Appellate Division, Third Department, for further proceedings on the issue of damages for mental anguish and humiliation in accordance with Matter of New York City Tr. Auth. v State Div. of Human Rights (78 NY2d 207).

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


text:
    In the Matter of Nicholas Marsh, Also Known as Nicholas V. Marsh, Deceased. Bank of New York, as Preliminary Executor of Nicholas Marsh, Also Known as Nicholas V. Marsh, et al., Respondents; Adrienne M. Lefkowitz, Appellant.
    Submitted July 15, 1991;
    decided September 12, 1991
   Motion, insofar as it seeks to dismiss the appeal taken as of right, granted and appeal dismissed with $400 costs of motion and $100 costs of motion upon the ground that no substantial constitutional question is directly involved; motion, insofar as it seeks further relief, denied.

Chief Judge Wachtler taking no part.


text:
    In the Matter of Charles R. Wexler, on Behalf of Himself and Sophie Eisenberg, Appellant, v Rosita Lieberman et al., Respondents.
    Submitted July 1, 1991;
    decided September 12, 1991
   Motion for leave to appeal dismissed. The issues presented have become moot by reason of the death of Sophie Eisenberg. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Appellant, v Donald Nacey, Respondent.
    Decided September 17, 1991

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney (Michael OBrien of counsel), for appellant.

      Winston McIntosh and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the judgment of Supreme Court, Queens County, reinstated.

We recently held that it is within the scope of a court officer’s "administerial duties” (CPL 310.10) to tell deliberating jurors, at the court’s direction, that they should stop deliberating because they were going to be taken to dinner and sequestered for the evening (People v Bonaparte, 78 NY2d 26). It was likewise within the administerial duties of the court officer in this case — decided by the Appellate Division before our Bonaparte decision was rendered — to tell the jurors that they should stop deliberating and that they could start deliberating when they returned to court in the morning.

We noted in Bonaparte (supra), and restate here, that while the defendant’s right to be present at a material stage of this trial was not violated, the "better practice, and the one that should be followed in the future, would be for the court, in the presence of the defendant and his counsel, to notify the jurors that they are going to be sequestered for the evening and to instruct them as to their duties and obligations during this period, including their duty to refrain from discussing the case among themselves or with others.” (78 NY2d, at 32.) On the present record, the trial court’s instruction, which evoked no protest from defense counsel, does not require a new trial.

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

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


text:
    Angelo J. Aponte, as Commissioner of the Department of Consumer Affairs of the City of New York, et al., Respondents, v Leo Raychuk, Appellant.
    Decided September 17, 1991

      APPEARANCES OF COUNSEL

      Gerald Goldfeder for appellant.

      Victor A. Kovner, Corporation Counsel (Linda H. Young 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, insofar as it affirms the March 13, 1990 judgment of Supreme Court, affirmed, with costs; appeal, insofar as taken from that portion of the Appellate Division order that affirmed Supreme Court’s October 31, 1989 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the New York Constitution. The Appellate Division order, to the extent it affirms the denial of defendant’s motion to vacate a default, is nonfinal and thus nonappealable. Moreover, the issues pertaining thereto are not reviewable by this Court in this procedural context. Defendant has failed to demonstrate any error of law with respect to the affirmed judgment imposing penalties against defendant in excess of $200,000.

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


text:
    In the Matter of G., Respondent.
    Submitted September 9, 1991;
    decided September 17, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies from the letter of the Disciplinary Committee dated June 11, 1991.


text:
    Donald Marcus, Appellant, v Wilbur A. Levin, as Commissioner of Jurors, Kings County, et al., Respondents.
    Submitted August 19, 1991;
    decided September 17, 1991
   Motion, treated as a motion for reconsideration of this Court’s order of July 9, 1991, transferring plaintiffs appeal to the Appellate Division, Second Department, denied. [See, 78 NY2d 950.]


text:
    Francene Rastelli, as Administratrix of the Estate of John A. Wunderlich, Deceased, Respondent, v Goodyear Tire & Rubber Company et al., Appellants, et al., Defendants.
    Submitted August 26, 1991;
    decided September 17, 1991
   Appeal taken by the Budd Company dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division upon which jurisdiction is predicated did not grant the Budd Company leave to appeal to the Court of Appeals.


text:
    Sylvia Rosenberg, Individually and as Administratrix of the Estate of Sidney Rosenberg, Deceased, Respondent, v Equitable Life Assurance Society of the United States, Appellant.
    Submitted June 24, 1991;
    decided September 17, 1991
   Motion to dismiss appeal denied. [See, 77 NY2d 810.]


text:
    In the Matter of Roger Scott, Appellant, et al., Petitioner, v John Manilla, as Building Inspector, et al., Respondents.
    Submitted July 29, 1991;
    decided September 17, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Roger Scott, Petitioner, and Rhoda Scott, Appellant, v John Manilla, as Building Inspector, et al., Respondents.
    Submitted July 29, 1991;
    decided September 17, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of John A. Ward et al., Appellants, v Roger Bennett, as Chairman of the Board of Standards and Appeals of the City of New York, et al., Respondents.
    Submitted August 12, 1991;
    decided September 17, 1991
   Motion for leave to appeal denied as unnecessary. The appeal as of right brings the entire order before the Court of Appeals.


text:
    The People of the State of New York, Respondent, v George Cardwell, Appellant. The People of the State of New York, Respondent, v Herman Goss, Appellant.
    Argued June 4, 1991;
    decided September 19, 1991

      APPEARANCES OF COUNSEL

      David P. Greenberg and Philip L. Weinstein for George Cardwell, appellant.

      Michael E. Lipson for Herman Goss, appellant.

      John J. Santucci, District Attorney (Gary Fidel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

In each case the order of the Appellate Division should be reversed and a new trial ordered.

Appellants George Cardwell and Herman Goss, along with a third codefendant Johnnie McCoy, were charged with two counts of second degree murder, one count of first degree robbery, and two counts of second degree criminal possession of a weapon. These charges arose from a robbery and fatal shooting at a Queens candy store. The three codefendants were tried together before a Queens jury after their motion for severance was denied. McCoy was acquitted of all charges, while Goss and Cardwell were both convicted.

On appeal, we consider whether the Trial Judge abused his discretion in refusing to sever the trials of Goss and Cardwell from those of each other and from that of McCoy. We conclude, based on our holding in People v Mahboubian (74 NY2d 174), that the trials should have been severed and that Goss and Cardwell are entitled to a new trial.

"[I]n all cases a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses” (People v Mahboubian, supra, at 183). An application for severance is addressed to the discretion of the Trial Judge, and the Judge’s ruling will ordinarily not be disturbed (People v Cruz, 66 NY2d 61, revd on other grounds and remanded 481 US 186, on remand 70 NY2d 733). However, the Trial Judge’s discretion is not absolute.

In Mahboubian (supra) we set forth a two-part test for determining whether severance is required, stating that "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” (id., at 184).

Since the District Attorney concedes in this case that the defenses of Goss and Cardwell on the one hand and that of McCoy on the other are in irreconcilable conflict, we turn our attention to the second prong of the Mahboubian test.

As we noted in Mahboubian, any inquiry into the prejudicial effect of the denial of a severance motion is necessarily fact-specific. While a trial court must decide a severance motion "prospectively, based on its discretionary assessments of the strategies and evidence as forecast by the parties,” appellate courts have the benefit of a "full trial record by which they may, within the ambit of their * * * review powers, determine the existence of irreconcilable conflict and its possible effect on the verdict” (id., at 184-185).

Special factors unique to this case compel us to conclude that there should have been a severance. These factors include the conduct of the trial itself. While no one factor is dispositive in such matters, we note that in this case McCoy’s attorney took an aggressive adversarial stance against both Goss and Cardwell, in effect becoming a second prosecutor. Goss’ attorney then responded by attempting to impeach McCoy’s story with evidence of a recantation, which elicited an assertion from McCoy that the recantation had been induced by Cardwell’s threats — damaging evidence elicited not by the People, but by a codefendant. As in Mahboubian, this entire situation "created the sort of compelling prejudice that could have been avoided by the grant of the requested severance” (id., at 186).

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

In People v Cardwell: Order reversed, etc.

In People v Goss: Order reversed, etc.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Alfredo Colon, Appellant.
    Decided September 19, 1991

      APPEARANCES OF COUNSEL

      Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Susan H. Odessky of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The Appellate Division determined that the prosecutor’s cross-examination of defense witnesses did not exceed the bounds of discretion and was not error. It also concluded that the prosecutor’s summation did not deprive defendant of a fair trial. Finally, it found unpreserved the issue involving a missing witness instruction to the jury. On this record, this Court has no basis as a matter of law on which to disturb the Appellate Division’s resolution of the first two claims and cannot review the unpreserved third issue.

Titone, J.

(dissenting). Although defendant was charged with a single count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]), at his trial, the prosecution, over numerous objections, was permitted to elicit extensive testimony which ultimately linked defendant to a large scale drug selling enterprise. The introduction of this highly prejudicial evidence clearly acted to deprive defendant of a fair trial (see, People v Alvino, 71 NY2d 233; People v Crandall, 67 NY2d 111; People v Molineux, 168 NY 264). The Appellate Division majority’s conclusion that this evidence was merely "confirmatory” of testimony already introduced into the case by defense counsel (172 AD2d 173,174-175) is simply not supported by the record. An examination of the trial transcript indicates that the testimony elicited by the prosecution went far beyond that which was brought out by defense counsel, and improperly created the impression that defendant was an active participant in an ongoing drug trafficking operation. Accordingly, I dissent.

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

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


text:
    David L. Acorn, Appellant, v Raymond C. Maas et al., Respondents.
    Submitted July 15, 1991;
    decided September 19, 1991
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Anonymous, Respondent, v Anonymous, Appellant.
    Submitted July 8, 1991;
    decided September 19, 1991
   Motion for leave to appeal from the April 16, 1991 Appellate Division order insofar as it affirmed the April 3, 1990 Supreme Court judgment dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    Anonymous, Respondent, v Anonymous, Appellant.
    Submitted July 8, 1991;
    decided September 19, 1991
   Motion for leave to appeal from the April 16, 1991 Appellate Division order insofar as it affirmed the March 16, 1990 judgment of Supreme Court denied.


text:
    Anonymous, Respondent, v Anonymous, Appellant.
    Submitted July 22, 1991;
    decided September 19, 1991
   Motion for leave to appeal from the April 16, 1991 Appellate Division order insofar as it reversed Supreme Court’s April 5, 1990 order denied.


text:
    Anonymous, Respondent, v Anonymous, Appellant.
    Submitted July 29, 1991;
    decided September 19, 1991
   Motion for leave to appeal from the June 13, 1991 Appellate Division order denied.


text:
    In the Matter of Angelia M. Bast, Appellant, v County of Clinton, Respondent.
    Submitted July 29, 1991;
    decided September 19, 1991
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Bayamon Steel Processors, Inc., Formerly Known as PR Steel Operating Company, Respondent, v John Platt, Appellant.
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Corrie Collins, Respondent, v Paul J. McGinley et al., Appellants.
    Submitted July 8, 1991;
    decided September 19, 1991
   Motion to dismiss appeal granted, and appeal dismissed with $400 costs and $100 costs of motion, upon the ground that the Appellate Division does not have the power in these circumstances to grant leave to appeal on a certified question from an order granting a new trial.


text:
    In the Matter of James E. Dove, Appellant, v Sebastian Leone et al., Respondents.
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Joanne Fries, Now Known as Joanne Price-Yablin, Respondent, v Phillip Fries, Appellant.
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeal, insofar as taken from the Appellate Division order dated November 15, 1988 [144 AD2d 1019], affirming Family Court’s modification of the prior August 6, 1986 Supreme Court order awarding support, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal was previously disposed of by the order of the Court of Appeals dated April 6, 1989 [73 NY2d 992]. Appeal, insofar as taken from so much of the Appellate Division order dated March 8, 1991, as affirmed Supreme Court’s denial of contempt, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order appealed from does not finally determine the action within the meaning of the. Constitution. Appeal, insofar as taken from the remainder of the March 8, 1991 Appellate Division order, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that as to the remainder of the order, appellant is not a party aggrieved.


text:
    John N. Grasso, Appellant, v Kelly M. Angerami, Respondent.
    Submitted July 22, 1991;
    decided September 19, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s October 26, 1990 order denying reconsideration, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    Jane Hope et al., on Behalf of Themselves and All Others Similarly Situated, et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Submitted August 12, 1991;
    decided September 19, 1991
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion by St. Vincent’s Hospital et al., to intervene, etc., dismissed as academic.


text:
    In the Matter of John W. Matthews, Individually and as Chair of the Nassau Democratic County Committee, Appellant, v Benjamin L. Zwirn, as Supervisor of the Town of North Hempstead, et al., Respondents.
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the issues presented have become moot.

Chief Judge Wachtler taking no part.


text:
    The People of the State of New York, Respondent, Karen M. White, Also Known as Theresa Hackett, Appellant.
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; People v Tramell, 77 NY2d 893).


text:
    The People of the State of New York, Respondent, Gregory Williams, Appellant.
    Submitted August 19, 1991;
    decided September 19, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, and motion for leave to appeal dismissed, each upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; People v Tramell, 77 NY2d 893).


text:
    Rochester Community Savings Bank, Respondent, v Fred C. Smith, Jr., Appellant.
    Submitted July 29, 1991;
    decided September 19, 1991
   Motion by plaintiff to amend this Court’s order dated June 13, 1991 dismissed as untimely. Motion by defendant for reargument of motion for leave to appeal dismissed as untimely. [See, 78 NY2d 909.]


text:
    Bart Schwartz, Appellant, v Commissioner of Finance of the City of New York et al., Respondents.
    Submitted July 15, 1991;
    decided September 19, 1991
   On the Court’s own motion, appeal dismissed, without costs, and motion for leave to appeal dismissed, insofar as the appeal and motion are from that portion of the Appellate Division order which affirmed Supreme Court’s June 14, 1990 order denying the motion for a default judgment, upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed upon the ground that no substantial constitutional question is directly involved; motion for leave to appeal otherwise denied.


text:
    Beverly Sommer et al., Respondents-Appellants, v Federal Signal Corporation et al., Respondents-Appellants, and Holmes Protection, Inc., Appellant-Respondent, et al., Defendant. (And a Third-Party Action and All Related Consolidated Actions.)
    Submitted September 9, 1991;
    decided September 19, 1991
   Appeals taken by Williams Real Estate Co., Inc., Federal Signal Corporation, Kleinberg Electric, Inc., Edwards & Zuck, P. C., National Cleaning Contractors, Inc., Central Elevator, Inc., Hewlett Packard, Inc., Total Energy Control Systems, Inc., Airvel Corp., Peat, Marwick, Mitchell & Co., and Sidney W. Barbanel dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order of the Appellate Division upon which jurisdiction is predicated does not grant said appellants leave to appeal to the Court of Appeals.

Judge Titone taking no part.


text:
    St. Paul Fire and Marine Insurance Company, Respondent, v Capri Construction Corp. et al., Appellants, et al., Third-Party Defendant.
    Argued September 5, 1991;
    decided October 10, 1991

      APPEARANCES OF COUNSEL

      Bruce D. Mencher for appellants.

      Victor K. Soffer for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs motion for summary judgment denied.

Plaintiffs submissions in support of its motion for summary judgment fail to establish that the rates applied in calculating the additional premium allegedly due under the policy were those required to be applied according to its rating plans filed with the Superintendent of Insurance. Thus, issues of fact remain to be resolved, precluding the grant of summary judgment in plaintiff’s favor. Moreover, the case presents open questions concerning interpretation of the contract, and whether plaintiff was entitled to unilaterally change the rates specified in the contract, which cannot be resolved on the record before us.

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

Order reversed, etc.


text:
    Gerald Katz et al., Doing Business as CIKA Realty Co., Appellants, v New York City Loft Board et al., Respondents. In the Matter of Caron Restaurant, Inc., Appellant, v New York City Loft Board et al., Respondents.
    Argued September 12, 1991;
    decided October 10, 1991

      APPEARANCES OF COUNSEL

      Gary S. Mayerson, Barbara J. Romaine and Lester N. Henner for Gerald Katz and others, appellants.

      Arthur T. Walsh and Andrew R. Scott for Caron Restaurant, Inc., appellant.

      Victor A. Kovner, Corporation Counsel (Margaret G. King and Leonard Koerner of counsel), for New York City Loft Board, respondent.

      Jacques F. Rose for John Lucas and others, respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (163 AD2d 207).

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


text:
    The People of the State of New York, Appellant, v Michael Caracciola, Respondent.
    Argued September 6, 1991;
    decided October 10, 1991
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Alan Gadlin and Norman Barclay of counsel), for appellant.

      Andrew M. Fallek for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with Supreme Court and the Appellate Division that the prosecutor’s legal instructions were too confusing to have been understood by the Grand Jury in considering the charges, warranting dismissal of the indictment. While instructions to the Grand Jury need not be as precise as those given to a petit jury, they may not be so misleading or incomplete as to substantially undermine the integrity of the proceedings (see, People v Batashure, 75 NY2d 306, 311-312; People v Calbud, Inc., 49 NY2d 389, 396; see also, CPL 210.35 [5]). The guidance provided by the prosecutor was not sufficient for the Grand Jury to carry out its function (see, People v Valles, 62 NY2d 36, 38).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Lawrence Veale, Appellant.
    Decided October 10, 1991

      APPEARANCES OF COUNSEL

      John Ferrara and Carl J. Silverstein for appellant.

      Stephen F. Lungen, District Attorney (K. C. Gam of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum at the Appellate Division (169 AD2d 939), except insofar as it addresses defendant’s assertion that his sentence was excessive. which contention is beyond the scope of this Court’s power of review.

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


text:
    The People of the State of New York, Appellant, v Carl Casdia, Respondent.
    Argued September 6, 1991;
    decided October 10, 1991

      APPEARANCES OF COUNSEL

      James M. Catterson, Jr., District Attorney (Guy Arcidiacono of counsel), for appellant.

      Louis E. Mazzola and John F. Middlemiss, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, essentially for the reasons stated in the majority memorandum of that court (163 AD2d 604), insofar as it addresses the unavailability of the superior court information procedure (CPL 195.10) to this defendant under the circumstances of this case.

We agree with the Appellate Division that People v Boston (75 NY2d 585) is apposite and controlling, and note further that People v D’Amico (76 NY2d 877 [decided after the Appellate Division’s decision in this case]) is factually and legally inapposite and distinguishable. In D’Amico, the defendant was formally held for Grand Jury action on a new felony complaint which charged him with a different crime from those previously charged. He was therefore placed in a formal preindictment procedural track, which is CPL 195.10’s precise qualifying prerequisite.

Here, as in Boston, we are faced with a significantly different situation. The defendant was already subject to an extant, at least partially valid, indictment and no formal preindictment status existed. The Trial Justice’s discussion with the parties concerning the possibility of Grand Jury re-presentment of the extant indictment does not constitute the functional equivalent of the legally recognized procedural circumstance in D’Amico. The argument that it does fails as a tautology and because it would effectively overrule the strict interpretation rule applied and demanded by Boston with respect to the use of superior court informations (CPL 195.10).

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

Order affirmed in a memorandum.


text:
    In the Matter of Bayside Bowling and Recreation Center, Inc., Doing Business as Avanti, Respondent-Appellant, v New York State Liquor Authority, Appellant-Respondent.
    Submitted September 23, 1991;
    decided October 10, 1991
   Motion to strike brief and dismiss appeal denied.


text:
    In the Matter of Beer Garden, Inc., Respondent-Appellant, v New York State Liquor Authority, Appellant-Respondent.
    Submitted September 23, 1991;
    decided October 10, 1991
   Motion to strike brief and dismiss appeal denied.


text:
    Robert D. Brandstetter, Appellant, v USAA Casualty Insurance Company et al., Respondents.
    Submitted July 29, 1991;
    decided October 10, 1991
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiff leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Rego Park Nursing Home, Appellant, v State of New York, Department of Health/Bureau of Residential Health Care Facility Reimbursement, et al., Respondents.
    Submitted June 17, 1991;
    decided October 10, 1991
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 77 NY2d 942.]


text:
    The People of the State of New York, Appellant, v Michael Santana, Respondent.
    Argued September 6, 1991;
    decided October 15, 1991

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney (Emil Bricker of counsel), for appellant.

      David P. Greenberg and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Order affirmed for so much of the memorandum at the Appellate Division (163 AD2d 495) as relates to the violation of CPL 270.30 and 310.10. There is no claim of waiver in this case (cf., People v Webb, 78 NY2d 335 [decided today]).

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


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Benjamin Green, Also Known as Benjamin Greene, Appellant.
    Argued September 11, 1991;
    decided October 15, 1991

      APPEARANCES OF COUNSEL

      J. Jeffrey Weisenfeld for appellant.

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

Memorandum.

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

The Grand Jury testimony of an eyewitness to the crime, which identified defendant as one of the perpetrators, did not fall within the classes of prior testimony rendered admissible in criminal proceedings by CPL 670.10. Inasmuch as the statute’s "three carefully worded and enumerated exceptions” are exclusive (People v Harding, 37 NY2d 130, 134; see, People v Ayala, 75 NY2d 422, 429), the trial court erred in allowing the witness’ prior testimony to be admitted as evidence-in-chief against the defendant. Under the circumstances of this case, in which identification was the central issue, we cannot conclude that the error was harmless.

Alexander, J.

(dissenting). While I agree with the majority that the admission of the Grand Jury testimony of an eyewitness to the crime was error, I am persuaded, as was the Appellate Division, that the error was harmless. The testimony of that witness was not the sole identification of the defendant as one of the perpetrators. Indeed, the son of the victim who was present at the time of the incident clearly and unequivocally identified defendant as one of the assailants.

As noted by the Appellate Division, that and other testimony which confirmed the "relationship among the men involved in the killing provided powerful and conclusive evidence of defendant’s guilt. [The Grand Jury testimony of the other eyewitness] was merely cumulative and, thus, there was no 'significant probability’ that its admission resulted in defendant’s conviction. (People v Crimmins, 36 NY2d 230, 242.)” (People v Green, 159 AD2d 432, 433.) Thus, there should be an affirmance.

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

Order reversed, etc.


author: Kaye, J.

text:
    In the Matter of Jessica R., a Child Alleged to be Abused, by Brenda W. Feder, as Law Guardian, Appellant. Westchester County Department of Social Services et al., Respondents.
    Argued September 4, 1991;
    decided October 15, 1991

      APPEARANCES OF COUNSEL

      Brenda W. Feder, Law Guardian, for Jessica R, appellant.

      Marilyn J. Slaatten, County Attorney (Marguerite R. Wiess of counsel), for Westchester County Department of Social Services, respondent.

      James C. Kahn for Peter R., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the Family Court for reconsideration in light of the amendment to Family Court Act § 1038 (c). The certified question should be answered in the negative.

Respondent, charged in the Family Court with sexually molesting his daughter, seeks to have her psychologically examined by an expert of his choice. The Family Court has inherent power to order such an examination by a court-appointed expert in order to aid the court in deciding the case. But at the time this application was made, if those having custody of the child objected, there was no means by which the respondent could have the child examined by an expert of his choice in order to prepare for the trial, even when such an exam had previously been performed by the petitioner’s expert. However, while the case was on appeal the Legislature amended the discovery statute (Family Ct Act § 1038 [c]) by providing that a "respondent or the law guardian may move for an order directing that any child who is the subject of a proceeding under this article be made available for examination by a physician, psychologist or social worker selected by such party or law guardian.” The statute further provides that "[i]n determining the motion, the court shall consider the need of the respondent or law guardian for such examination to assist in the preparation of the case and the potential harm to the child from the examination.” The statute is designed to enhance procedural fairness and the fact-finding process, particularly in cases where the petitioner’s proof will depend substantially on expert opinion. (NY State Assembly mem, Bill No. A 7486-A.) Although the statute was not in effect at the time of the original application, it is now the law, and is controlling on this appeal (see, e.g., Kelly v Long Is. Light. Co., 31 NY2d 25, 29, n 3). However, we agree with the view expressed by Justice Rosenblatt at the Appellate Division that the case should be remitted to the Family Court for reconsideration in light of the change in the law.

Section 1038 (c) of Family Court Act is a discovery statute but examination of the child by the respondent’s expert is not to be routinely granted upon demand. The application is addressed to the court’s discretion and the court must determine whether, under the circumstances of the particular case, the potential benefits outweigh the potential harm. In the case now before us there is very little in the record to inform the court on these points. The divergent views expressed by the Judges in writings at the Appellate Division, seeking to apply the statute to a record made before the statute went into effect, are based primarily on perceptions of theoretical benefits and speculative harm. Because neither the Family Court nor the parties had the benefit of the statute when the application was made, and thus did not fully explore these issues in the context of this particular proceeding, the case should be remitted for further inquiry and reconsideration. The scope of the inquiry is within the court’s discretion. There is no need to conduct a formal hearing in this or other- cases unless the court finds it would be helpful to supplement or further probe the parties submissions. But in view of the fact that examinations by an adversary’s expert will almost always present potential harm to the child as well as potential benefits for the respondent and the truth-finding process, the facts bearing on these issues should be developed in some depth before the court, in the exercise of its discretion, determines the appropriate balance.

In response to the partial dissent we would simply note that applications as sensitive as these should not be mechanically or technically decided by assigning burdens of proof and determining whether one party or the other has met a particular burden. The statute places the burden on the court to exercise sound judgment after weighing all the factors bearing on the potential benefit to the applicant and the truth-finding process, if both sides are able to present experts who have examined the child, and the potential harm to the child which may result from the additional exam. In determining whether to grant or deny the application the court must also take into account its power to condition the order, if necessary to achieve an appropriate balance.

Kaye, J.

(concurring in part and dissenting in part). In 1988, the Westchester County Department of Social Services (DSS) filed an abuse and neglect petition, alleging that, in July 1988, respondent had sexually abused his four-year-old daughter, Jessica R. This action was taken after the victim had been evaluated by a Child Sexual Abuse Syndrome specialist, known as a validator, retained by DSS. Respondent then requested an order directing that the child be produced for examination by a validator of his choice.

The majority concludes that the matter should be remitted so that Family Court may decide, in its discretion, whether Jessica R. — now eight years old — should be subject to this second validation examination. Because of respondent’s failure to show any need for another examination, I disagree with the majority’s disposition and would deny his motion.

It is by now well established that abused children evidence distinct reactions and that expert observation of this behavior may constitute substantive evidence of abuse (see generally, Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 Neb L Rev 1 [1989]; Comment, The Admissibility of Expert Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 Miami L Rev 1033 [1988]; Comment, The Admissibility of Expert Testimony in Intrafamily Child Sexual Abuse Cases, 34 UCLA L Rev 175 [1986]). The validation procedure is the process by which an expert seeks to determine if the child suffers from "intrafamilial child sex abuse syndrome” (see, Matter of Michael G., 129 Misc 2d 186, 192).

It is generally recognized that the validation process may be traumatic for a child. The "validation process requires that the child establish a relationship with the expert. It necessitates the child’s recounting and reliving the traumatic incidents suffered. She must overcome fear, guilt and embarrassment. Multiple validations would subject a truthful child to another form of child abuse * * * [and] a child fabricating such abuse must be severely emotionally disturbed and could be seriously traumatized by continuous probing.” (Matter of Tara H., 129 Misc 2d 508, 509.)

As the majority acknowledges, "examinations by an adversary’s expert will almost always present potential harm to the child” (majority opn, at 1033). Indeed, in this case there was evidence that the initial psychiatric evaluation was significantly traumatic to the child (see, 163 AD2d 543, 549).

Against potential for harm to the child must be weighed respondent’s need for the examination to assist in preparation of his case (Family Ct Act § 1038 [c]).

As the majority notes, section 1038 (c) was not in effect when Family Court decided the present case. Instead, the court relied on Family Court Act § 251, which provided jurisdiction to order an examination by a court-designated psychiatrist when such an examination would "serve the purposes of this act.” As Justice Miller noted at the Appellate Division, section 1038 (c) must also be read consistently with the overriding concern of the Family Court Act, namely the protection of children (163 AD2d, at 551; see also, Family Ct Act § 1011; Matter of Nicole V., 123 AD2d 97, 104 [purpose of article 10 of Family Ct Act can only be achieved by tipping the balance between the rights of children and their parents in favor of protecting the children], affd 71 NY2d 112). It is respondent’s burden in seeking a second examination, as it was under section 251, to establish that the need for the procedure outweighs the potential harm to the child (see, Matter of Tara H., supra [decided prior to enactment of Family Ct Act § 1038 (c)]).

Respondent made no showing whatsoever of need. He in no way challenged the impartiality of the DSS expert, or the examination that had already been performed. Additionally, Family Court ordered the entire DSS file turned over to him.

Further relief should not have been ordered on the basis of respondent’s bald assertions, made in his attorney’s affidavits, that he "is entitled to * * * a mental examination of the infant,” that the charges were "difficult to defend,” and that in fact a second examination would be "in said child’s best interests.” Respondent should not be given a second chance to meet the burden of proof he already failed to satisfy.

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

Order reversed, without costs, and matter remitted to Family Court, Westchester County, for further proceedings in accordance with the memorandum herein. Certified question answered in the negative.


text:
    In the Matter of Albert M. Rosenblatt, as Chief Administrative Judge of the Unified Court System of the State of New York, Appellant, v Harold R. Newman et al., Individually and as Members of the Public Employment Relations Board of the State of New York, et al., Respondents. (Proceeding No. 1.) In the Matter of Suffolk County Court Employees Association, Inc., Appellant, v Harold R. Newman et al., Individually and as Members of the Public Employment Relations Board of the State of New York, et al., Respondents. (Proceeding No. 2.)
    Argued September 4, 1991;
    decided October 15, 1991

      APPEARANCES OF COUNSEL

      Gary Johnson, Michael Colodner and John Eiseman for Albert M. Rosenblatt, appellant.

      David Schlachter for Suffolk County Court Employees Association, Inc., appellant.

      John M. Crotty for Public Employment Relations Board, respondent.

      Jerome Lefkowitz and Nancy E. Hoffman for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, respondent.
   OPINION OF THE COURT

In each proceeding, order affirmed, with costs, for the reasons stated in the opinion by Justice Paul J. Yesawich, Jr., at the Appellate Division (164 AD2d 117).

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


text:
    Hartford Fire Insurance Company, Respondent, v Michael Advocate, Appellant.
    Argued September 5, 1991;
    decided October 15, 1991

      APPEARANCES OF COUNSEL

      Irving N. Selkin for appellant.

      Stephen M. Kiernan for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the defendant’s cross motion for summary judgment dismissing the complaint should be granted.

The plaintiff-respondent insurance company (Hartford) sued the defendant-appellant attorney (Advocate) to recoup fire insurance proceeds which Hartford had paid to an insured partnership, One-Five-Three Associates (Associates), on its partnership policy for fire damage to a building and contents owned by Associates. Advocate, a partner, held a 2ti% partnership interest in Associates. He had previously sued Hartford, on a separate fire insurance policy which covered him personally, for damages caused by the same fire. That lawsuit was unsuccessful because the jury found that Advocate procured the arson. Hartford thereafter sued Advocate in the instant action and secured a money judgment against him in both lower courts based on a complaint containing two causes of action based on its subrogated rights and fraud stemming from the payment of the policy proceeds to Associates.

Hartford’s payment of the fire insurance proceeds to Associates in satisfaction of the partnership policy shifts to the insurer, by subrogation principles, all rights and impediments that flowed between the partnership and its minority-interest partner, Advocate. For example, Associates had a potential claim in intentional tort against Advocate for his conduct in procuring the fire. Accordingly, Hartford’s first cause of action against Advocate in the matter before us was expressly pleaded in subrogation based on Advocate’s "intentional” act of procuring the fire on February 5, 1984. The Statute of Limitations governing that cause of action is three years (CPLR 214 [4]). It is not six years, as the lower courts concluded, because this first cause of action is not a fraud claim in any respect. Inasmuch as the subrogee Hartford’s lawsuit against Advocate was begun on May 23, 1988, the first cause of action is beyond the three-year limitation and should be dismissed.

The source and nature of the second cause of action, pleaded as intentional fraud, are difficult to discern on this record. No matter how denominated or construed, however, the cause fails to state a viable claim as between these parties. In one respect, if viewed as aimed at Advocate’s direct fraud against Hartford by reason of Advocate’s claim under his personal fire insurance policy, no claim is stated. Because no payment was ever made on that policy, Hartford suffered no injury on that theory and no wrong has been pleaded. Indeed, that policy is not before us.

Alternatively, Hartford’s second cause of action does not state a fraud claim based on Advocate’s conduct against Associates. Even on the most liberal reading of the pleading, there is no allegation, express or implied, that Advocate made any misrepresentations that induced the payment of the proceeds of the partnership policy.

That being so, the dismissal of the first cause of action on Statute of Limitations grounds and the second cause of action on pleading deficiency grounds ends the matter for all purposes. This Court, therefore, has no reason to pass on the ultimate merits of the lawsuit; or on the analysis and discussion in the lower courts; or, finally, on the misconduct of lawyer Advocate.

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

Order reversed, etc.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General, Respondent, v Westchester County S.P.C.C. et al., Defendants, and A, Appellant.
    Submitted August 19, 1991;
    decided October 15, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Mario M. Castracan et al., Appellants, v Anthony J. Colavita, as Chairman of the Westchester Republican County Committee, et al., Respondents.
    Submitted September 9,1991;
    decided October 15, 1991
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for sanctions denied.


text:
    In the Matter of Julianne M. Farmer, Also Known as Julianne M. Dervay, Appellant, v Robert P. Dervay, Respondent.
    Submitted August 5, 1991;
    decided October 15, 1991
   Motion for leave to appeal dismissed as moot. The issues presented have become moot by reasons of petitioner’s move from the jurisdiction in which she was living when the proceeding was commenced.


text:
    The People of the State of New York, Respondent, v Francis Guzman, Appellant.
    Submitted August 19, 1991;
    decided October 15, 1991
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no civil appeal lies from the decision of the Appellate Division in this criminal proceeding. Motion for poor person relief denied as academic.


text:
    In the Matter of Paul S. Mirman, an Attorney. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted August 12, 1991;
    decided October 15, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Judge Bellacosa taking no part.


text:
    Ethel Richards et al., Appellants, et al., Plaintiffs, v Estate of Doris Kaskel et al., Respondents, et al., Defendants. (Action No. 1.) (And Another Action.)
    Submitted August 5, 1991;
    decided October 15, 1991
   Motion for leave to appeal from so much of the Appellate Division order as pertains to action No. 1 dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Gene Ruder, Respondent, v Henry Lewandowski et al., Appellants.
    Submitted August 12, 1991;
    decided October 15, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [bl).


text:
    Schneider Leasing Plus, Inc., Appellant, v Frank Stallone et al., Defendants, and Cory Food Services, Inc., et al., Respondents.
    Submitted August 19, 1991;
    decided October 15, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Nicholas P. Mossman.
    Decided October 17, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Nicholas P. Mossman is suspended, with pay, effective immediately, from his office of Justice of the Philmont Village Court, Columbia County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Gerald Winegard.
    Decided October 17, 1991
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Gerald Winegard is suspended, with pay, effective immediately, from his office of Justice of the Seward Town Court, Schoharie County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    The People of the State of New York, Respondent, v Dennis Charles, Appellant.
    Argued September 6, 1991;
    decided October 17, 1991

      APPEARANCES OF COUNSEL

      Joseph P. Grancio for appellant.

      Charles J. Hynes, District Attorney (Ruth E. Ross and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion granted to the extent of suppressing the joint statement, and a new trial ordered.

Defendant was tried jointly with another on three drug charges arising from the possession of cocaine and marihuana. At the Huntley hearing, one of the arresting officers testified to a joint statement made by the two defendants immediately before he arrested them in the basement of an apartment house. The officer stated that "both said the [marijuana] bag was theirs and that they have been selling marijuana out the back door of the location through the peephole for a man named Oswald” and that "they were getting high.” Inasmuch as the admissions were inadmissible against the codefendant for failure to serve notice under CPL 710.30, the court redacted them to omit any reference to the codefendant. The changes included substituting singular pronouns for plurals. Thus, at trial, the officer was permitted to testify that the defendant made the entire statement.

Before the evidence was received, the People had to establish that the statement was made by defendant and that it could be effectively redacted for the jury without prejudice to him (see, People v Wheeler, 62 NY2d 867, 869; People v Boone, 22 NY2d 476, 486; People v La Belle, 18 NY2d 405, 411). They failed to sustain that burden. The police officer testified at the Huntley hearing that he was unable to ascertain which admissions, if any, were attributed to defendant because "both [suspects] spoke at the same time.” Inasmuch as no other evidence was offered to establish the speaker, the People have failed to meet their burden and should not have been allowed to offer this evidence against defendant at trial. For the same reason it was impossible for the court to effectively redact the statement without prejudice to defendant. By changing the pronouns and permitting the officer to testify at trial that defendant made the entire statement, the jury was led to believe that all of the admissions had been made by defendant when in fact the People had not established that he made any of them. This error requires a new trial.

Defendant also maintains that the court erred in denying his motion to suppress the cocaine seized by the police during their search and seizure. Based upon the evidence before the hearing court, we see no reason to disturb its determination that a hearing was not required because defendant did not have a reasonable expectation of privacy in the basement apartment.

Finally, defendant contends that he may be retried only on the one count of which he was found guilty, that double jeopardy prevents retrial on those counts of the indictment not considered by the jury. In People v Jackson (20 NY2d 440, cert denied 391 US 928), we held that where a jury is not given an opportunity to return a verdict as to some of the offenses charged, its failure to do so cannot be construed as an acquittal barring retrial.

Here, the Judge instructed the jury that they did not have to consider the remaining counts if they found defendant guilty of count one. It is clear from the record that the jury elected that option and did not consider or reach a verdict on counts two and three. After returning a verdict of guilty on count one, the foreman advised the court that the jurors had not considered the remaining counts as a result of the court’s instruction. Thus, jeopardy was never terminated by acquittal or dismissal of those counts and retrial of them will not violate the jeopardy principles of the Federal Constitution (see, Richardson v United States, 468 US 317; Justices of Boston Mun. Ct. v Lydon, 466 US 294; People v Jackson, supra).

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

Order reversed, etc.


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    In the Matter of Samuel, an Infant.
    Argued September 5, 1991;
    decided October 17, 1991

      APPEARANCES OF COUNSEL

      Sanford Robert Shapiro for appellants.

      David R. Murch for respondent.

      Ardeth L. Houde for John J. Rivoli, Law Guardian.
   OPINION OF THE COURT

Memorandum.

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

On the extraordinary facts of this case, we cannot agree with appellants (the potential adoptive parents) that an extrajudicial adoption consent executed by respondent birth mother but promptly canceled by her set in motion the revocation mechanism of Domestic Relations Law § 115-b.

As respondent urges, it would be absurd to conclude that every consent that is privately signed and immediately withdrawn by a birth parent nonetheless triggers the formal revocation mechanism that puts a birth parent on equal footing with a potential adoptive parent. Indeed, the several provisions of the Domestic Relations Law referring to the adoptive parents and to the court in which the adoption proceeding has been or is to be commenced, plainly contemplate that there be some overt manifestation to a third person for an extrajudicial consent to be operative. While such consents surely must be scrupulously weighed by birth parents before they are executed, a document that is immediately nullified may not implicate the protected interests of others under the statute.

The record before us presents such a circumstance. Respondent nullified her private consent by promptly notifying her attorney of her intention to keep her child. We emphasize that, contrary to appellants’ argument, our analysis adds no requirement of delivery of the consent document, or any other requirement to the statute.

This result makes it unnecessary for us to consider whether respondent’s consent was void ab initia for lack of independent counsel, or whether appellants’ own acknowledged failure to comply with statutory requirements would constitute grounds for dismissing the adoption petition.

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

Order affirmed, with costs, in a memorandum.


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    Veronica K. Parks et al., Respondents, v Theodore Hutchins et al., Defendants, Long Island Rail Road, Respondent, and City of New York, Appellant.
    Argued September 5, 1991;
    decided October 17, 1991

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Trudi Mara Schleifer and Ellen B. Fishman of counsel), for appellant.

      Charles Haydon and Thomas Rubertone for Veronica K. Parks and another, respondents.

      Steven J. Ahmuty, Jr., for Long Island Rail Road, respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that, in the circumstances of this case, defendant City of New York was not entitled to prior written notice pursuant to the so-called "pothole law” (Administrative Code of City of New York § 7-201 [c] [2] [formerly § 394a-1.0 [d] [2]), and that, the evidence adduced at trial was sufficient to support the jury’s conclusion that defendant committed negligent acts which constituted a proximate cause of the injuries sustained by the plaintiffs (see, Cohen v Hallmark Cards, 45 NY2d 493, 499).

Inasmuch as the question of the apportionment of liability between the parties following ‘the Appellate Division’s dismissal of the complaint against defendant Long Island Rail Road was neither raised nor argued in this Court we have no need to address that issue.

We have examined the appellant’s remaining contentions and find them without merit.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Fred P. Thomasula, Respondent.
    Argued September 12, 1991;
    decided October 17, 1991

      APPEARANCES OF COUNSEL

      Kevin M. Dillon, District Attorney (Rosanne E. Johnson and John J. DeFranks of counsel), for appellant.

      William M. Kunstler and Ronald L. Kuby for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to the Appellate Division for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

In April 1987, as a result of an undercover operation, defendant was indicted, along with codefendant Richard Pantano, for various drug related offenses, including two counts of criminal sale of a controlled substance in the second degree (Penal Law § 220.41) — a class A-II felony. Sometime prior to defendant’s trial, the People entered into a plea bargain with Pantano whereby it was agreed that he would testify against defendant in exchange for being permitted to plead guilty to attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 220.39, 110.00) — a class C felony. In accordance with that agreement, Pantano thereafter waived prosecution by indictment and pleaded guilty to the reduced charge. It is undisputed that this plea arrangement was unauthorized under the Criminal Procedure Law (see, CPL 195.10 [2] [b]; 220.10 [5] [a] [ii]).

At his trial, defendant asked that the jury be advised that Pantano’s plea bargain was "contrary to law” and that it could consider that illegality on the issue of his credibility. The trial court denied this request, and defendant was subsequently convicted of, inter alla, two counts of criminal sale of a controlled substance in the second degree. On appeal, however, the Appellate Division reversed and ordered a new trial, holding that the Trial Judge’s refusal to inform the jury that Pantano’s plea agreement "offered an inducement beyond that permitted by law” deprived the jury of "information essential to its assessment of his credibility” (158 AD2d 126, 130). The People contend that the Appellate Division erred in that conclusion. We agree.

Although there can be no question that a criminal defendant is entitled to have the jury informed that a prosecution witness has been offered a "favorable deal” in exchange for his testimony (see, People v Jackson, 74 NY2d 787, 790; People v Savvides, 1 NY2d 554, 557; 1 CJI[NY] 7.24; see generally, CPL 300.10 [1], [2]), the Trial Judge here specifically advised the jury that Pantano had received just such a deal and cautioned it to consider carefully whether this may have induced him to testify falsely against defendant. It was only the "unauthorized” character of Pantano’s plea arrangement which the Trial Judge refused to disclose to the jury. This refusal did not constitute reversible error under the circumstances of this case. Unlike the substance of a witness’ plea bargain, the "legality” of such an agreement, in and of itself has little, if any, bearing on whether the witness may be expected to testify truthfully at trial. While such a fact may take on relevance if it is also established that the witness was aware that he was receiving a better deal than that permitted by law, defense counsel failed to make such a showing here, despite the fact that he was specifically asked by the Trial Judge how Pantano could have known about this purely "legal matter.” Accordingly, defendant having failed to establish that Pantano’s credibility may have been affected by the unauthorized nature of his plea agreement, the trial court properly refused to give the requested instruction.

We have examined defendant’s remaining contentions in support of an affirmance of the order of the Appellate Division (see, CPL 470.35 [2]), and find them to be without merit.

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

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

      . CPL 195.10 (2) (b) permits a waiver of prosecution by indictment before, but not after, an indictment has been filed by the Grand Jury (see, People v Casdia, 78 NY2d 1024; People v Boston, 75 NY2d 585; People v Banville, 134 AD2d 116).

      . CPL 220.10 (5) (a) (ii) provides that where an indictment charges a class A-II felony defined in article 220 of the Penal Law, a plea of guilty must include at least a plea of guilty to a class B felony.

      . Defendant did not suggest that the illegal nature of Pantano’s plea arrangement was relevant to any other issue in the case.


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    In the Matter of the Arbitration between Allcity Insurance Company, Respondent, and Sergio Jimenez, Appellant, et al., Respondents.
    Decided October 17, 1991

      APPEARANCES OF COUNSEL

      Joseph Greene and Kenneth F. Popper for appellant.

      Isabella Nótale and Stacy R. Seldin for Allcity Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant insured notified his carrier, Allcity Insurance Company (Allcity), that he was making an "uninsured motorist claim” in connection with an automobile accident and was requesting no-fault forms. Some months later, appellant demanded arbitration, classifying the accident as a "hit-and-run”. Allcity promptly petitioned for a permanent stay of arbitration, alleging in part that appellant failed to provide the required notice statement under oath, and thus breached a condition precedent to coverage.

Supreme Court granted the petition and permanently stayed arbitration. The Appellate Division affirmed and granted leave to appeal on a certified question, although the order is final for our jurisdictional purposes.

Appellant’s sole argument is that Allcity was required to issue a timely disclaimer, despite his own conceded failure to submit the required sworn statement. Absent a valid excuse, failure to satisfy an insurance policy notice requirement vitiates coverage (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436; Matter of Cuzdey [American Motorists Ins. Co.], 45 AD2d 134, affd 37 NY2d 939; Eveready Ins. Co. v Saunders, 149 AD2d 456). However, an insurer who fails to timely disclaim liability or deny coverage "as soon as is reasonably possible,” when required by Insurance Law § 3420 (d), waives its affirmative defense of late notice (Matter of Allstate Ins. Co. [Frank], 44 NY2d 897).

Assuming without deciding that the sworn statement requirement in the uninsured motorist endorsement Allcity issued to appellant was an exclusion from coverage which required issuance of a disclaimer (Zappone v Home Ins. Co., 55 NY2d 131; compare, Matter of Prudential Prop. & Cas. Ins. Co. [Hobson] 67 NY2d 19), we agree with Supreme Court that on the facts of this case Allcity timely disclaimed. The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028). As the Supreme Court held, Allcity had no basis upon which to disclaim when it received appellant’s letter notifying it that he was asserting an "uninsured motorist claim.” As appellant concedes, Allcity had no knowledge that he was asserting a hit-and-run claim until nine months after the accident, when it received the demand for arbitration on that precise basis. Allcity filed a petition for a permanent stay of arbitration 20 days after the demand for arbitration was served, in compliance with CPLR 7503 (c). The petition was sufficient and timely notice of disclaimer as a matter of law under Insurance Law § 3420 (d), assuming a disclaimer was required.

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

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


text:
    In the Matter of Anonymous, an Attorney.
    Submitted September 3, 1991;
    decided October 17, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Leon Aronsky, Appellant, v Board of Education, Community School District No. 22 of the City of New York, et al., Respondents.
    Submitted August 26, 1991;
    decided October 17, 1991
   Motion, treated as a motion to extend the time to move to amend remittitur, granted; motion to amend remittitur granted, remittitur recalled and, when returned, it will be amended to read as follows:

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment, insofar as appealed from, reversed, with costs, particular "F” of the charges against petitioner dismissed as time barred, and the matter remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein. [See, 75 NY2d 997.]

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


text:
    In the Matter of Jack Campisi et al., Respondents, v Vincent A. Scelba, as Supervisor of the Town of Milan, Appellant.
    Submitted August 26, 1991;
    decided October 17, 1991
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Laurice R. Cushion, as Executive Deputy Commissioner of the Erie County Department of Social Services, Respondent, v Dennis T. Gorski, as County Executive of Erie County, et al., Appellants.
    Submitted August 19, 1991;
    decided October 17, 1991
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Chianti FF. and Others, Alleged to be Abused and Neglected Children. Chemung County Department of Social Services et al., Respondents; Benjamin GG., Appellant.
    Submitted August 26, 1991;
    decided October 17, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Leah C. Reichman, Respondent, v Warehouse One, Inc., Appellant.
    Submitted September 3, 1991;
    decided October 17, 1991
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying defendant’s motion to vacate a judgment, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Respondent, v Raymond J. Somers, Appellant.
    Argued September 4, 1991;
    decided October 22, 1991

      APPEARANCES OF COUNSEL

      Joseph J. Balok, Jr., Public Defender (John R. McGlenn of counsel), for appellant.

      James T. Hayden, District Attorney, for respondent.
   OPINION OF THE COURT

Order affirmed. The issues sought to be raised by defendant are not preserved for this Court’s review and, therefore, the Court cannot consider the merits.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacos a. Judge Hancock, Jr., dissents and votes to reverse, concluding that defendant preserved the constitutional issue whether the application of Penal Law §§ 40.15 and 25.00 unconstitutionally shifted the burden of proof to defendant, and that the trial court’s charge to the jury failed to safeguard against the insanity affirmative defense statute impermissibly shifting to defendant the burden of disproving intent (see, People v Kohl, 72 NY2d 191, 198-199).


text:
    Donald A. Swartzlander, Jr., Appellant, v Forms-Rite Business Forms & Printing Service, Inc., Respondent, et al., Defendant.
    Decided October 22, 1991

      APPEARANCES OF COUNSEL

      Joseph R. Klawon for appellant.

      David G. Brock 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 the reasons stated in the memorandum of the Appellate Division (174 AD2d 971).

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


text:
    Jan Lee, Respondent, v Vernita Nuey, Appellant.
    Submitted August 19, 1991;
    decided October 22, 1991
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Thomas Markowski et al., Appellants, v Anthony Ferrari et al., Respondents.
    Submitted August 19, 1991;
    decided October 22, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of City of New York, Respondent, v John McGrath, Appellant.
    Submitted October 7, 1991;
    decided October 22, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no direct appeal lies pursuant to CPLR 5601 (b) (2) where intermediate appellate review of the order appealed from has been obtained.


text:
    Vaughn F. Stancage, Appellant, v Maureeen A. Stancage, Respondent.
    Submitted July 29, 1991;
    decided October 22, 1991
   On the Court’s own motion, appeal taken as of right from that portion of the Appellate Division order that dismissed the appeal from an order of the Supreme Court denying defendant’s motion for, inter alla, reargument dismissed, without costs, upon the ground that that portion of the order does not finally determine the action within the meaning of the Consti-. tution, and appeal taken as of right from that portion of the Appellate Division order that dismissed the appeal from the amended judgment of Supreme Court dismissed, without costs, upon the ground that no appeal lies as of right from a unanimous order of the Appellate Division absent the direct involvement of a constitutional question. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from an order of Supreme Court denying defendant’s motion for, inter alla, reargument, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Ernestine Young, Appellant, v Henry Lamoute, Respondent.
    Submitted August 26, 1991;
    decided October 22, 1991
   On the Court’s own motion, appeal taken as of right from that portion of the Appellate Division order that affirmed the order of Supreme Court denying plaintiff’s motion for reargument and/or renewal dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution, and appeal taken as of right from that portion of the Appellate Division order that affirmed the order of Supreme Court granting summary judgment to defendant, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the order of Supreme Court denying plaintiffs motion for reargument and/or renewal, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.