BAC Home Loans Servicing, L.P., etc., res, v. Brian Jackson, appellant def — (Index No. 16265/10)In an action to foreclose a mortgage, the defendant Brian Jackson appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered August 18, 2015, as denied those branches of his motion which were to dismiss the complaint insofar as asserted against him for failure to comply with 22 NYCRR 202.12-a(b)(1) or, in the alternative, in effect, to toll the accrual of interest on the mortgage loan, and for leave to serve and file an amended answer to assert the defense of lack of standing.ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the motion of the defendant Brian Jackson which was, in effect, to toll the accrual of interest on the mortgage loan, and substituting therefor a provision granting that branch of the motion to the extent of tolling the accrual of interest between December 22, 2010, and November 6, 2014, and otherwise denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the motion which was for leave to serve and file an amended answer to assert the defense of lack of standing, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Brian Jackson.On August 25, 2010, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Brian Jackson. Jackson, acting pro se, served his answer on September 20, 2010. A request for judicial intervention (hereinafter RJI) was not filed in this action until November 10, 2014. Thereafter, Jackson moved, inter alia, to dismiss the complaint insofar as asserted against him for failure to comply with 22 NYCRR 202.12-a(b)(1) based on the plaintiff’s failure to timely file an RJI requesting a settlement conference or, in the alternative, in effect, to toll the accrual of interest on the mortgage loan following the filing of the summons and complaint. Jackson also sought leave to amend his answer to assert several affirmative defenses, including lack of standing. The Supreme Court, inter alia, denied those branches of his motion.While 22 NYCRR 202.12-a(b)(1) states that at the time that proof of service of a summons and complaint is filed with the clerk, a plaintiff in a mortgage foreclosure action shall file a specialized RJI applicable to such actions, it does not provide that the failure to do so will result in the dismissal of the action. Accordingly, the Supreme Court properly denied that branch of Jackson’s motion which was to dismiss the complaint for failure to comply insofar as asserted against him with 22 NYCRR 202.12-a(b)(1).“In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” (Prompt Mtge. Providers of N. Am., LLC v. Zarour, 155 AD3d 912, 915 [internal quotation marks omitted]; see CPLR 5001[a]; LaSalle Bank, N.A. v. Dono, 135 AD3d 827, 829; US Bank N.A. v. Williams, 121 AD3d 1098, 1101-1102; Dayan v. York, 51 AD3d 964, 965; Preferred Group of Manhattan, Inc. v. Fabius Maximus, Inc., 51 AD3d 889, 890). Here, the plaintiff contends that it initially attempted to file an RJI on October 22, 2010, but that the RJI was rejected by the Supreme Court for failure to comply with Administrative Order 548/10. Administrative Order 548/10, which was promulgated on October 20, 2010, by the Chief Administrative Judge of the Courts, required that, “‘effective immediately,’… a plaintiff’s attorney in certain mortgage foreclosure actions [had] to submit an affirmation confirming the factual accuracy and the accuracy of notarizations of all filings in support of foreclosure” (Bank of N.Y. Mellon v. Izmirligil, 144 AD3d 1063, 1064 quoting Administrative Order 548/10). This Administrative Order provided that, in new cases, the affirmation had to accompany the RJI. However, where a residential mortgage foreclosure action was pending on the effective date of Administrative Order 548/10, and no judgment of foreclosure had been entered, such as in the instant case, Administrative Order 548/10 provided that the affirmation must be filed at the time of filing either the proposed order of reference or the proposed judgment of foreclosure. Since this was a pending case, the RJI should not have been rejected by the court for failure to file an attorney affirmation with the RJI. The attorney affirmation did not have to be filed until the plaintiff submitted either the proposed order of reference or the proposed judgment of foreclosure (see Bank of N.Y. Mellon v. Izmirligil, 144 AD3d at 1064; U.S. Bank, N.A. v. Ramjit, 125 AD3d 641, 642).Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 (see Greenpoint Mtge. Corp. v. Lamberti, 155 AD3d 1004; Citicorp Trust Bank, FSB v. Vidaurre, 155 AD3d 934, 935; Dayan v. York, 51 AD3d 964, 956; Danielowich v. PBL Dev., 292 AD2d 414; Dollar Fed. Sav. & Loan Assn. v. Herbert Kallen, Inc., 91 AD2d 601; South Shore Fed. Sav. & Loan Assn. v. Shore Club Holding Corp., 54 AD2d 978; Wells Fargo Bank, N.A. v. Lindo, 2013 NY Slip Op 30375[U], *12-13 [Sup Ct, NY County]; cf. U.S. Bank Nat. Ass’n v. Williams, 121 AD3d 1098, 1102).“Leave to amend a pleading ‘shall be freely given,’ provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit” (HSBC Bank v. Picarelli, 110 AD3d 1031, 1031, quoting CPLR 3025 [b] [citation omitted]). ”Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” (HSBC Bank v. Picarelli, 110 AD3d at 1032 [internal quotation marks omitted]). Here, Jackson sought to amend his answer after he was served with the November 2014 RJI to which the plaintiff had attached a copy of the subject note, executed by him in favor of Countrywide Bank, FSB, and which had not been endorsed to the plaintiff. Since Jackson’s proposed amendment to include the defense of lack of standing did not result in any prejudice to the plaintiff and was not palpably insufficient or patently devoid of merit, the Supreme Court improvidently exercised its discretion in denying that branch of Jackson’s motion which was for leave to amend his answer to assert the defense of lack of standing (see US Bank, N.A. v. Primiano, 140 AD3d 857, 858; HSBC Bank v. Picarelli, 110 AD3d at 1032; U.S. Bank, N.A. v. Sharif, 89 AD3d 723, 724).Accordingly, the Supreme Court should have granted those branches of Jackson’s motion which were to toll the accrual of interest on the mortgage loan from December 22, 2010, through November 6, 2014, and for leave to amend his answer to assert the affirmative defense of lack of standing.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.Honghui Kuang, plaintiff/counterclaim def-res, v. MetLife, def; Metropolitan Life Insurance Company, counterclaim plf; Hong Xing Yang additional counterclaim def-ap — (Index No. 13073/13)In an action to recover the proceeds of a life insurance policy, the additional counterclaim defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Queens County (Velasquez, J.), entered July 13, 2016, which, inter alia, granted that branch of their motion which was pursuant to CPLR 3126 to strike the complaint only to the extent of precluding the plaintiff/counterclaim defendant from offering testimony at trial and otherwise denied that branch of the motion.ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the additional counterclaim defendants which was pursuant to CPLR 3126 to strike the complaint only to the extent of precluding the plaintiff/counterclaim defendant from offering testimony at trial and otherwise denied that branch of the motion, and substituting therefor a provision granting that branch of the motion in its entirety; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.In 2004, Hong Guang Yang (hereinafter the decedent) obtained a life insurance policy from the defendant and counterclaim plaintiff, Metropolitan Life Insurance Company, incorrectly sued herein as MetLife (hereinafter Metropolitan). The decedent designated his then-girlfriend, the plaintiff/counterclaim defendant (hereinafter the plaintiff), as a 50 percent beneficiary, and his siblings, the additional counterclaim defendants, Hong Xing Yang and Xiao Ming Yang (hereinafter together the Yangs), each as a 25 percent beneficiary. During the decedent’s lifetime, Metropolitan received forms purportedly signed by the decedent, changing the beneficiary designation solely to the plaintiff and giving her ownership of the policy.In 2011, the decedent was diagnosed with amyotrophic lateral sclerosis. Before he died on April 4, 2013, the decedent sent an affidavit to Metropolitan in which he stated that he never authorized and did not recall making any modifications to his policy, that any documents purporting to modify the policy would have been presented to him in English, which he could not read and of which he had a limited understanding, and that, as a result, any changes were invalid. After the decedent’s death, the plaintiff submitted a claim form to Metropolitan for the proceeds of the life insurance policy. The Yangs also submitted claim forms to Metropolitan for the proceeds of the policy, along with the affidavit of the decedent which had been sent to Metropolitan prior to the decedent’s death, and a transcript of an examination under oath taken of the decedent, in which he denied authorizing changes to the policy and indicated his intent that the Yangs receive the entire proceeds of the policy. In light of the adverse claims, Metropolitan determined that it could not make any payment on the policy.The plaintiff, proceeding pro se, commenced this action against Metropolitan to recover the proceeds of the policy. In its answer, Metropolitan interposed counterclaims against the plaintiff and the Yangs, who were named as additional counterclaim defendants. In answering Metropolitan’s counterclaims against them, the Yangs asserted “cross-claims” against the plaintiff based upon their allegations that the plaintiff fraudulently changed the policy and was not entitled to any of the proceeds (hereinafter the cross claims). In their cross claims, the Yangs sought, inter alia, a judgment declaring that they are entitled to the full proceeds of the decedent’s life insurance policy and that the plaintiff had no rights to the policy or proceeds, and directing payment of the full policy proceeds to them.During the course of discovery, in an order entered November 6, 2014, the Supreme Court granted that branch of a motion by the Yangs which was for leave to enter a default judgment against the plaintiff on their cross claims due to the plaintiff’s failure to serve an answer to the cross claims as required pursuant to a preliminary conference order. The court ordered that an inquest against the plaintiff on the cross claims would be held simultaneously with the trial on the complaint. In the same order, the court also granted that branch of the Yangs’ motion which was to strike the complaint due to the plaintiff’s failure to provide complete responses to their document demands only to the extent of precluding the plaintiff from offering testimony at trial if she failed to furnish a complete response to certain demands within 30 days after service of a copy of the order with notice of entry. The Yangs served the plaintiff with a copy of the November 6, 2014, order with notice of entry on November 12, 2014. The plaintiff never supplemented her response to the Yangs’ document demands.Thereafter, in an order entered February 5, 2015, the Supreme Court granted that branch of a motion by the Yangs which was to compel the plaintiff to appear at a deposition. The plaintiff appeared for the deposition on March 5, 2015, but refused to answer many of the questions put to her, yelled at counsel, tore up and refused to return exhibits presented to her, and threatened the Yangs’ counsel before eventually walking out of the deposition. The court then issued an order entered July 7, 2015, directing the plaintiff to appear for a second deposition at which the parties were “to exhibit decorum and professional behavior towards each other.” The plaintiff appeared for the second deposition but would not answer any questions unless the Yangs’ counsel showed proof, including a retainer agreement, that he actually represented the Yangs. While counsel was attempting to reach the court by telephone for guidance, the plaintiff left without having answered any questions. Thereafter, the court issued an order entered October 19, 2015, directing the plaintiff to appear for a third deposition. Despite counsel serving the plaintiff with a copy of the October 19, 2015, order and notice of the deposition and his attempts to confirm same by letter, email, and telephone, the plaintiff failed to appear at the third deposition.Subsequently, the Yangs moved, inter alia, pursuant to CPLR 3126 to strike the complaint because of the plaintiff’s failure to comply with discovery orders. In an order entered July 13, 2016, the Supreme Court, among other things, granted that branch of the Yangs’ motion which was to strike the plaintiff’s complaint only to the extent of precluding the plaintiff from offering testimony at trial and otherwise denied that branch of the motion. The Yangs appeal.“Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court” (Morales v. Zherka, 140 AD3d 836, 836-837; see Isaacs v. Isaacs, 71 AD3d 951, 952). ”Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed” (Lotardo v. Lotardo, 31 AD3d 504, 505; see Morales v. Zherka, 140 AD3d at 837; Parker Waichman, LLP v. Laraia, 131 AD3d 1215, 1216). “Nevertheless, this Court is ‘vested with a corresponding power to substitute its own discretion for that of the [motion] court’” (Cioffi v. S.M. Foods, Inc., 142 AD3d 520, 522, quoting Peculic v. Sawicki, 129 AD3d 930, 931; see Lucas v. Stam, 147 AD3d 921, 925-926; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209-210).If a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed… the court may… strik[e] out pleadings… or dismiss[ ] the action… or render[ ] a judgment by default against the disobedient party” (CPLR 3126[3]). ”While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and contumacious conduct” (Almonte v. Pichardo, 105 AD3d 687, 688; see Harris v. City of New York, 117 AD3d 790, 790; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; Zakhidov v. Boulevard Tenants Corp., 96 AD3d 737, 739). ”Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 AD3d 685, 686-687 [internal quotation marks and citations omitted]; see Teitelbaum v. Maimonides Med. Ctr., 144 AD3d 1013, 1014; Orgel v. Stewart Tit. Ins. Co., 91 AD3d 922, 923).Here, the remedy of precluding the plaintiff from offering testimony at trial had already been granted in the November 6, 2014, order as a result of the plaintiff’s failure to provide complete responses to certain requests set forth in the Yangs’ document demands within the time frame provided by the Supreme Court. ”A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” (Wei Hong Hu v. Sadiqi, 83 AD3d 820, 821; see Rothman v. Westfield Group, 101 AD3d 703, 704). ”If the party fails to produce the discovery by the specified date, the conditional order becomes absolute” (Wei Hong Hu v. Sadiqi, 83 AD3d at 821; see Rothman v. Westfield Group, 101 AD3d at 704).In this case, the November 6, 2014, order provided that the plaintiff was to supplement her responses within 30 days after service of a copy of that order with notice of entry. According to an affirmation of service, the Yangs served a copy of the November 6, 2014, order with notice of entry upon the plaintiff by regular mail on November 12, 2014. Consequently, the plaintiff had until December 17, 2014, to provide a supplemental response (see CPLR 2103[b][2]). Since the plaintiff never provided a supplemental response, that part of the November 6, 2014, order which precluded her from offering testimony at trial became absolute upon her failure to comply with the directive that she supplement her discovery responses (see Julien-Thomas v. Platt, 133 AD3d 824, 825; Wei Hong Hu v. Sadiqi, 83 AD3d at 821; see also Rothman v. Westfield Group, 101 AD3d at 704). Thus, when the order appealed from was issued, the plaintiff had already been precluded from offering testimony at trial. Consequently, the Supreme Court imposed no additional penalty upon the plaintiff for her ongoing practice of flouting discovery orders.Given the history of this case and the plaintiff’s willful and contumacious conduct in trying to frustrate the discovery process, the Supreme Court improvidently exercised its discretion in not granting that branch of the Yangs’ motion which was to strike the plaintiff’s complaint (see Lucas v. Stam, 147 AD3d at 926; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; Orgel v. Stewart Tit. Ins. Co., 91 AD3d at 924). The plaintiff repeatedly failed to comply with the court’s discovery orders by not providing supplemental responses to certain document demands, refusing to answer questions at the first and second court-ordered depositions, not acting with decorum at the second court-ordered deposition, and failing to appear for a third court-ordered deposition. The plaintiff’s excuse that she wanted proof that counsel represented the Yangs before continuing to answer counsel’s questions at the first deposition or answering any questions at the second deposition was not reasonable. Similarly, her excuse for failing to appear at the third court-ordered deposition, that she did not receive notice, was not reasonable given all of the means by which counsel communicated the date to her. Consequently, the court should have granted that branch of the Yangs’ motion which was to strike the plaintiff’s complaint (see Lucas v. Stam, 147 AD3d at 926; Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 AD3d 976, 977; Orgel v. Stewart Tit. Ins. Co., 91 AD3d at 924; Bort v. Perper, 82 AD3d 692, 695).The Yangs’ remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Scott Roberts, res, v. Lyubov A. Roberts, ap — (Index No. 2806/08)Appeal from stated portions of a judgment of divorce of the Supreme Court, Queens County (Bernice D. Siegel, J.), entered March 24, 2015. The judgment, insofar as appealed from, upon an amended decision of that court dated February 3, 2015, made after a nonjury trial, awarded the plaintiff a fault-based divorce on the ground of cruel and inhuman treatment, awarded the plaintiff sole custody of the parties’ child, imputed income to the defendant, determined that the plaintiff’s share in the marital residence constituted separate property, and made an equitable distribution of marital assets.ORDERED that the appeal from so much of the judgment as awarded the plaintiff a fault-based divorce on the ground of cruel and inhuman treatment, awarded the plaintiff sole custody of the parties’ child, imputed income to the defendant, determined that the plaintiff’s share in the marital residence constituted separate property, and made an equitable distribution of marital assets is dismissed; and it is further,ORDERED that the judgment is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the respondent.The parties were married in June 1996. They have one child together, who was born in 2002. In 2008, the plaintiff commenced this action for a fault-based divorce and ancillary relief on the ground of cruel and inhuman treatment in 2008. By order dated February 25, 2011, the Supreme Court awarded the plaintiff temporary sole custody of the child. The case proceeded to trial, and at the trial the court denied the defendant’s motion for recusal. At the conclusion of the trial, by judgment of divorce entered March 24, 2015, the court, inter alia, granted the plaintiff a fault-based divorce, awarded him sole custody of the child, and determined issues of equitable distribution. The defendant appeals from the judgment.Although the defendant seeks review of the order dated February 25, 2011, which awarded the plaintiff temporary sole custody of the parties’ child, this issue is not properly before us. The order awarding the plaintiff temporary sole custody of the child was superseded by the judgment awarding him permanent sole custody, and the temporary order is no longer in effect (see Haggerty v. Haggerty, 78 AD3d 998, 999). Accordingly, the award of temporary custody is not reviewable on the appeal from the judgment of divorce under CPLR 5501 because, if reversed or modified, it would not necessarily affect the judgment (see Maddaloni v. Maddaloni, 142 AD3d 646, 647).The Supreme Court properly denied the defendant’s motion for recusal. ”Absent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal” (People v. Moreno, 70 NY2d 403, 405-406). ”A court’s decision in this respect may not be overturned unless it was an improvident exercise of discretion” (D’Andraia v. Pesce, 103 AD3d 770, 771; see Matter of Bonefish Grill, LLC v. Zoning Bd. of Appeals of the Vil. of Rockville Ctr., 153 AD3d 1394; Wells Fargo Bank, N.A. v. Chaplin, 144 AD3d 1021). Denial of the defendant’s motion for recusal was proper here, as the defendant “fail[ed] to set forth any proof of bias or prejudice on the part of the court which would have warranted recusal” (Sassower v. Gannett Co., Inc., 109 AD3d 607, 609).We do not reach the defendant’s remaining contentions. ”‘It is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcript of proceedings before the Supreme Court’” (Schwartz v. Schwartz, 73 AD3d 1156, 1156, quoting Nakyeoung Seoung v. Vicuna, 38 AD3d 734, 735; see CPLR 5525[a]; Bousson v. Bousson, 136 AD3d 954; Istomin v. Istomin, 130 AD3d 575, 576; Clarke v. Clarke, 90 AD3d 690; Gorelik v. Gorelik, 85 AD3d 859; Fernald v. Vinci, 13 AD3d 333). ”‘Appeals that are not based on complete and proper records must be dismissed’” (Deutsche Bank Natl. Trust Co. v. Hounnou, 147 AD3d 814, 814, quoting Garnerville Holding Co. v. IMC Mgt., 299 AD2d 450, 450; see Fernald v. Vinci, 13 AD3d 333). Here, the defendant seeks review of so much of the judgment as awarded the plaintiff a fault-based divorce on the ground of cruel and inhuman treatment, awarded the plaintiff sole custody of the child, imputed income to the defendant, determined that the plaintiff’s share in the marital residence constituted separate property, and made an equitable distribution of marital assets. However, the defendant has failed to assemble a proper record on appeal and, thus, has prevented a meaningful review of her claims (see Gorelik v. Gorelik, 85 AD3d 859). In a decision and order on motion of this Court dated January 27, 2017, the defendant was directed to serve and file a supplemental record containing, inter alia, “all additional trial transcripts,” and the post-trial memoranda of the plaintiff and the attorney for the child, which were submitted to the Supreme Court in lieu of closing arguments at trial. Nevertheless, the defendant has failed to include the transcripts of all relevant proceedings before the court, her statement of net worth and tax returns submitted to the court as trial exhibits, and the post-trial memoranda of the plaintiff and the attorney for the child, in either the record on appeal or the supplemental record. Accordingly, the record is inadequate to enable this Court to render an informed decision on these issues (see Clarke v. Clarke, 90 AD3d 690; Gorelik v. Gorelik, 85 AD3d 859; Schwartz v. Schwartz, 73 AD3d at 1156).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.Giovanna Giunta, etc. respondents plf, v. AG Towers, Inc. ap, et al., def — (Index No. 10004/12)In an action for a judgment declaring that a lease entered into between the plaintiff Incorporated Village of Manorhaven and the defendant AG Towers, Inc., expired on March 7, 2013, the defendants New York SMSA Limited Partnership, doing business as Verizon Wireless, and AG Towers, Inc., separately appeal, as limited by their respective briefs, from (1) so much of an order of the Supreme Court, Nassau County (Janowitz, J.), entered July 9, 2015, as denied their separate motions, joined by the defendants T-Mobile Northeast, LLC (sued herein as Omnipoint Communications, Inc.), and MetroPCS New York, LLC, in effect, for summary judgment declaring that the subject lease did not expire on March 7, 2013, and the defendants T-Mobile Northeast, LLC, and MetroPCS New York, LLC, separately appeal from the same order, and (2) so much of an order of the same court entered December 10, 2015, as, upon reargument, adhered to the prior determination.ORDERED that the appeal by the defendants T-Mobile Northeast, LLC (sued herein as Omnipoint Communications, Inc.), and MetroPCS New York, LLC, is dismissed for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]); and it is further,ORDERED that the appeals by the defendants New York SMSA Limited Partnership, doing business as Verizon Wireless, and AG Towers, Inc., from so much of the order entered July 9, 2015, as denied their separate motions, in effect, for summary judgment declaring that the lease between the plaintiff Incorporated Village of Manorhaven and the defendant AG Towers, Inc., did not expire on March 7, 2013, are dismissed, as that portion of the order was superseded by the order entered December 10, 2015, made upon reargument; and it is further,ORDERED that the order entered December 10, 2015, is reversed insofar as appealed from, on the law, upon reargument, the determination in the order entered July 9, 2015, denying the separate motions of the defendants New York SMSA Limited Partnership, doing business as Verizon Wireless, and AG Towers, Inc., in effect, for summary judgment declaring that the lease between the plaintiff Incorporated Village of Manorhaven and the defendant AG Towers, Inc., did not expire on March 7, 2013, is vacated, the motions for summary judgment are granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the subject lease did not expire on March 7, 2013; and it is further,ORDERED that one bill of costs is awarded to the defendants New York SMSA Limited Partnership, doing business as Verizon Wireless, and AG Towers, Inc.The plaintiffs commenced this action for a judgment declaring that a lease entered into by the Incorporated Village of Manorhaven and the defendant AG Towers, Inc. (hereinafter AG), dated March 7, 2008, expired on March 7, 2013. The lease provided, inter alia, that the Village would lease property to AG for the construction of a cell phone tower, and that AG would sublease space to federally licensed wireless providers, including the defendants New York SMSA Limited Partnership, doing business as Verizon Wireless (hereinafter Verizon), T-Mobile Northeast, LLC (sued herein as Omnipoint Communications, Inc.), and MetroPCS New York, LLC.In seeking a declaration that the lease expired on March 7, 2013, the plaintiffs alleged that the Village’s Board of Trustees, by resolution dated February 27, 2008, only authorized the lease for a term of five years. Indeed, the resolution provided that “the term of the leases [sic] shall not exceed a period of five (5) years from the date upon which it is executed.” The lease, however, provided that the initial term of the lease “will be five (5) years from the ‘Commencement Date’” (i.e., March 7, 2008), “and shall automatically renew for up to ten (10) additional terms of five (5) years each.”Verizon and AG separately moved for summary judgment, arguing that the lease did not expire on March 7, 2013, because the Village ratified the lease by accepting rental payments, issuing building permits, and granting variance applications in connection with the construction of the cell tower. In the first order appealed from, the Supreme Court denied the motions. In the second order appealed from, the court, upon reargument, adhered to its determination denying the motions.“A contract that is not approved by a relevant municipal or governmental body, as required by law, rule, or regulation, may be ratified by the municipality or government body by subsequent conduct, such as by making payments pursuant to the contract” (East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 90 AD3d 815, 817, citing JRP Old Riverhead Ltd. v. Town of Southampton, 44 AD3d 905, 909; Della Rocco v. City of Schenectady, 278 AD2d 628, 630-631; Imburgia v. City of New Rochelle, 223 AD2d 44, 48).Here, Verizon and AG established their prima facie entitlement to judgment as a matter of law by demonstrating that the Village ratified the lease by, among other things, consistently accepting rental payments pursuant to the lease after the initial five-year term of the lease had expired (see JRP Old Riverhead Ltd. v. Town of Southampton, 44 AD3d at 909; Della Rocco v. City of Schenectady, 278 AD2d at 630-631). In opposition, the Village failed to raise a triable issue of fact.Accordingly, the Supreme Court should have granted the separate motions of Verizon and AG, in effect, for summary judgment declaring that the subject lease did not expire on March 7, 2013.Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the subject lease did not expire on March 7, 2013 (see Lanza v. Wagner, 11 NY2d 317, 334).ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Elizabeth K. Krimendahl, etc., plf, v. William C. Hurley, appellant def; MAPFRE Insurance Company, nonparty-res — (Index No. 23167/13)Appeal from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated April 8, 2016. The order denied the motion of the defendant William C. Hurley to enforce so much of a prior order of that court dated June 26, 2015, as directed nonparty MAPFRE Insurance Company to pay for the legal services rendered by John H. Mulvehill in the defense of the defendant William C. Hurley in this action.ORDERED that the order dated April 8, 2016, is affirmed, with costs.In this personal injury action arising from a motor vehicle collision, the defendant William C. Hurley initially was represented by counsel provided by his liability insurance carrier, MAPFRE Insurance Company (hereinafter MAPFRE), at MAPFRE’s expense. Hurley simultaneously retained the legal services of John H. Mulvehill to represent his personal interests with regard to potential excess claims against him. Hurley paid Mulvehill for these services from his own funds. In March 2015, Hurley moved to substitute Mulvehill as his attorney of record in the action, to direct that MAPFRE pay the reasonable value of all services rendered by Mulvehill, and for further discovery in the action. Significantly, although Hurley had already paid Mulvehill $12,650 for unspecified legal services performed in 2013 and 2014, Hurley did not seek reimbursement for those payments in his motion.While the motion was pending, MAPFRE advised Mulvehill on April 29, 2015, that it would consent to the substitution of Mulvehill as attorney of record for Hurley “to take over his defense in the [personal injury] lawsuit.” In the same correspondence, MAPFRE agreed to pay for Mulvehill’s professional services in the defense of Hurley “from this point forward,” at MAPFRE’s standard compensation rate for outside counsel. Mulvehill agreed to these terms, and a stipulation substituting Mulvehill as attorney of record for Hurley was executed on April 30, 2015. In view of these developments, a reply affirmation of Mulvehill was submitted on behalf of Hurley on the motion. That affirmation acknowledged the executed stipulation of substitution and MAPFRE’s agreement to pay for the services of Mulvehill as “the incoming attorney.” Accordingly, the affirmation stated that “so much of this motion that requests an Order directing a substitution and a further Order directing [MAPFRE] to pay the reasonable value of all attorney services is withdrawn as no longer necessary.”Despite the foregoing withdrawal of these requests for relief, the Supreme Court issued an order dated June 26, 2015 (hereinafter the 2015 order), in which it granted those branches of the motion, directing the substitution of Mulvehill as attorney of record for Hurley and further directing MAPFRE “to pay the reasonable value of all legal services actually rendered by [Mulvehill] in the defense of [Hurley] in this matter.”Several months later, Hurley moved to enforce the 2015 order, claiming that under the terms of that order he was now entitled to reimbursement from MAPFRE of the $12,650 he had personally paid to Mulvehill for the unspecified legal services performed in 2013 and 2014. Hurley asserted that MAPFRE had refused to pay for any services rendered by Mulvehill prior to the execution of the stipulation of substitution on April 30, 2015, in alleged violation of the terms of the 2015 order. In an order dated April 8, 2016, the Supreme Court denied Hurley’s motion, observing that the clear import of the 2015 order was that MAPFRE was to pay Mulvehill only for services rendered following his substitution as attorney of record for Hurley in this action. Hurley appeals, and we affirm.Contrary to Hurley’s contention, the 2015 order did not provide him with a right to reimbursement for payments he had already made to Mulvehill prior to Mulvehill’s substitution as attorney of record in this action. Rather, the record fully supports the Supreme Court’s conclusion that the 2015 order only required MAPFRE to pay for legal services rendered by Mulvehill after the substitution. Indeed, the 2015 order directed the substitution of Mulvehill and, in connection therewith, the payment of “the reasonable value of all legal services actually rendered by [him].” It did not address services for which Mulvehill previously had been compensated, nor did it make any provision for Hurley’s reimbursement for those payments from MAPFRE, which was already paying the fees for Hurley’s representation by different counsel. Accordingly, the court’s interpretation of MAPFRE’s obligations under the 2015 order is supported by the clear language of that order. Furthermore, this interpretation comports with the parties’ positions on the substitution motion. The reimbursement of Hurley was never an issue on that motion, since no request for such relief was made therein. Additionally, Hurley withdrew his request that MAPFRE be directed to pay for Mulvehill’s services once MAPFRE agreed, on April 29, 2015, to pay for those services “from this point forward,” thus clearly demonstrating that all parties understood that payment only for prospective legal services was being sought by Hurley and agreed to by MAPFRE.Given all of the foregoing circumstances, Hurley’s contention that the Supreme Court effectively amended the 2015 order and thereby prejudiced his substantive right to reimbursement is without merit (cf. Chmelovsky v. Country Club Homes, Inc., 111 AD3d 874; Mount Sinai Hosp. v. Country Wide Ins. Co., 81 AD3d 700; Solomon v. City of New York, 127 AD2d 827). Rather, the court properly explained the meaning of the 2015 order in accordance with its clear terms (see generally Board of Mgrs. of Sea Breeze II Condominium v. Kwiecinski, 72 AD3d 630; Baharestani v. Baharestani, 43 AD3d 1093).Hurley’s additional contention is not properly before this Court, since it is raised for the first time in his reply brief (see Battlefield Freedom Wash, LLC v. Song Yan Zhuo, 148 AD3d 969, 972; US Bank N.A. v. Sarmiento, 121 AD3d 187, 208).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Yves Poullard, ap — (Ind. No. 1242/13)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joel Blumenfeld, J.), rendered July 9, 2015, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the adjudication of the defendant as a second felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial due to improper remarks made by the Supreme Court to prospective jurors during voir dire (see CPL 470.05[2]; People v. Dudley, 151 AD3d 878, 879; People v. Mason, 132 AD3d 777, 779). Contrary to the defendant’s contention, the court’s error did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 NY3d 880; People v. Dudley, 151 AD3d at 879; People v. Mason, 132 AD3d at 779; People v. Cunningham, 119 AD3d 601, 602). In any event, the court’s remarks to the prospective jurors, while inappropriate, do not warrant reversal (see People v. Dudley, 151 AD3d at 879; People v. Mason, 132 AD3d at 779; People v. Bailey, 66 AD3d 491; People v. Daniel, 37 AD3d 731; People v. Alston, 225 AD2d 453).The defendant’s contention that his conviction of credit card fraud in Virginia did not qualify as a predicate New York felony pursuant to Penal Law §70.06(1)(b)(i) is unpreserved for appellate review (see People v. Samms, 95 NY2d 52, 57; People v. Smith, 73 NY2d 961; People v. Taylor, 132 AD3d 915). However, we exercise our interest of justice jurisdiction to review the issue (see People v. Rovinsky, 135 AD3d 969, 970; People v. Ballinger, 99 AD3d 931; People v. Casey, 82 AD3d 1005). Here, “the People failed to satisfy their burden of establishing that defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York” (People v. Yancy, 86 NY2d 239, 247; see People v. Muniz, 74 NY2d 464; Matter of Luis C., 124 AD3d 109). Accordingly, we vacate the adjudication of the defendant as a second felony offender and the sentence imposed thereon, and remit the matter to the Supreme Court, Queens County, for resentencing.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Cyril Poullard, ap — (Ind. No. 1242/13)Seymour W. James, Jr., New York, NY (Ellen Dille of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joel Blumenfeld, J.), rendered July 9, 2015, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial due to improper remarks made by the Supreme Court to prospective jurors during voir dire (see CPL 470.05[2]; People v. Dudley, 151 AD3d 878, 879; People v. Mason, 132 AD3d 777, 779). Contrary to the defendant’s contention, the court’s error did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 NY3d 880; People v. Dudley, 151 AD3d at 879; People v. Mason, 132 AD3d at 779; People v. Cunningham, 119 AD3d 601-602). In any event, the court’s remarks to the prospective jurors, while inappropriate, do not warrant reversal (see People v. Dudley, 151 AD3d at 879; People v. Mason, 132 AD3d at 779; People v. Bailey, 66 AD3d 491; People v. Daniel, 37 AD3d 731; People v. Alston 225 AD2d 453).The defendant was afforded the effective assistance of counsel (see People v. Benevento, 91 NY2d 708, 712-713; People v. Baldi, 54 NY2d 137).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Miller and Brathwaite Nelson, JJ.MATTER of Sue I. Davis petitioners- res, v. Ryan Delena, ap — (Proceeding No. 1)MATTER of Sue I. Davis petitioners- res, v. Suffolk County Department of Social Services, etc., res-res — (Proceeding No. 2)MATTER of Sue I. Davis petitioners- res, v. Jennifer Davis, respondent-respondent (Proceeding No. 3). (and a related proceeding) (Docket Nos. V-14540-15, V-14542-15, V-14550-15, V-9865-15, V-9865-15/15A)Appeal from an amended order of the Family Court, Suffolk County (Theresa Whelan, J.), dated August 4, 2016. The amended order, after a hearing, denied the petition of the paternal grandparents for custody of the subject child and granted the petition of the maternal grandparents for custody of the subject child.ORDERED that the appeal from so much of the amended order as denied the petition of the paternal grandparents for custody of the subject child is dismissed, without costs or disbursements; and it is further,ORDERED that the amended order is affirmed insofar as reviewed, without costs or disbursements.These related child custody proceedings involve competing petitions for custody of the subject child by her paternal and maternal grandparents. The child’s father consented to the petition for custody filed by his parents, while the child’s mother consented to the petition for custody filed by her parents. In an amended order dated August 4, 2016, the Family Court granted the maternal grandparents’ petition and denied the paternal grandparents’ petition, determining that an award of custody to the maternal grandparents was in the child’s best interests. The father appeals.Initially, the father’s appeal from so much of the amended order as denied the petition of the paternal grandparents for custody of the subject child must be dismissed, as the father is not aggrieved by that part of the order (see CPLR 5511; Matter of Singh v. Cassadean, 121 AD3d 799, 799; Matter of Brian JJ. v. Heather KK., 61 AD3d 1285).The father’s contention that the maternal grandparents failed to meet their burden of proving the existence of extraordinary circumstances in order to establish their standing to seek custody of the subject child (see Matter of Bennett v. Jeffreys, 40 NY2d 543; Matter of Maddox v. Maddox, 141 AD3d 529) is improperly raised for the first time on appeal (see Matter of Hezekiah L. v. Pamela A.L., 92 AD3d 506; Matter of Isaiah O. v. Andrea P., 287 AD2d 816).In a child custody proceeding, the court’s paramount concern is to determine what placement, based on the totality of the circumstances, is in the best interests of the child (see Friederwitzer v. Friederwitzer, 55 NY2d 89, 94). In determining the best interests of the child, a court should take a variety of factors into consideration to determine “what will best promote [the child's] welfare and happiness” (Eschbach v. Eschbach, 56 NY2d 167, 171; see Friederwitzer v. Friederwitzer, 55 NY2d at 94-95). These factors include, but are not limited to: (1) which alternative will best promote stability for the child; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well-being, and foster the child’s relationship with the noncustodial parent; (5) previous placement of the child; and (6) the child’s desires (see Matter of Supangkat v. Torres, 101 AD3d 889, 890; see also Eschbach v. Eschbach, 56 NY2d at 171-173; Friederwitzer v. Friederwitzer, 55 NY2d at 94). While a Family Court’s determination of custody is entitled to great weight on appeal, this Court’s authority is as broad as that of the hearing court, and it will not allow a custody determination to stand where it lacks a sound and substantial basis in the record (see Matter of Venette v. Rhodes, 301 AD2d 608; Matter of Fowler v. Rivera, 296 AD2d 409). Contrary to the father’s contention, the Family Court’s determination that it was in the child’s best interests to award custody to her maternal grandparents has a sound and substantial basis in the record (see Matter of Durgala v. Batrony, 154 AD3d 1115; Matter of Gardner v. Gardner, 69 AD3d 1243; Matter of DePaola v. Corrales, 303 AD2d 586).SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Dillon, Miller, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Dominic R. Cardascia, ap — (Ind. No. 121/14)Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Dutchess County (Peter M. Forman, J.), imposed May 25, 2016, sentencing him to consecutive indeterminate terms of imprisonment of 2 1/3 to 7 years upon his conviction of forgery in the second degree, and 1 1/3 to 4 years upon his conviction of criminal possession of stolen property in the fourth degree, on the ground that the sentence was excessive.ORDERED that the sentence is modified, as a matter of discretion in the interest of justice, by providing that the two indeterminate terms of imprisonment shall run concurrently with each other; as so modified, the sentence is affirmed.The sentence, although legally permissible, is excessive to the extent indicated herein (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., DILLON, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.A.I.M.G., LLC, ap, v. ERA Funding Group, LLC, respondent def — (Index No. 4840/16)In an action, inter alia, for a judgment declaring that the plaintiff has an ownership interest in certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Wade, J.), dated September 9, 2016, which denied, as academic, its motion to stay the execution of a certain warrant of eviction.ORDERED that the order is affirmed, without costs or disbursements.It is undisputed that the defendant ERA Funding Group, LLC, as the record owner of certain premises located in Brooklyn, commenced a landlord-tenant proceeding in the Civil Court, Kings County, against the plaintiff’s sole member, who resided there. The parties to that proceeding entered into a stipulation, wherein the alleged tenant consented to the jurisdiction of the Civil Court and to a final judgment of possession. Thereafter, the plaintiff commenced this action, asserting causes of action sounding in, inter alia, unjust enrichment and breach of a constructive trust, and seeking a judgment declaring that the plaintiff has an ownership interest in the premises. At the time this action was commenced, the plaintiff moved to stay the execution of a warrant of eviction. ERA Funding Group, LLC, opposed the motion. The Supreme Court denied the motion, stating that the eviction had been executed and, therefore, the issue was academic. The plaintiff appeals.It is undisputed that a warrant of eviction was executed and the premises have been vacated. Accordingly, the Surpreme Court properly denied, as academic, the plaintiff’s motion to stay the execution of the warrant of eviction (see Aniqa Halal Live Poultry Corp. v. Montague-Lee Ltd. Partnership, 110 AD3d 934, 934; Frey v. Rose, 51 AD3d 859; Blinds To Go, Inc. v. Times Plaza Dev., L.P., 19 AD3d 524).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.PEOPLE, etc., res, v. Renata Shlai, ap — (Ind. No. 10454/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered September 9, 2014, convicting her of conspiracy in the fifth degree, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.White Knight of Flatbush, LLC, ap, v. Deacons of the Dutch Congregation of Flatbush, a/k/a the Reformed Protestant Dutch Church of the Town of Flatbush, def, Sterling Group Asset Management, LLC res — (Index No. 508807/14)Appeal from an order of the Supreme Court, Kings County (Martin M. Solomon, J.), dated August 14, 2015. The order, insofar as appealed from, granted the motion of the defendants Sterling Group Asset Management, LLC, Michael Chera, and Angelo Monaco pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint insofar as asserted against them and denied that branch of the plaintiff’s cross motion which was for leave to serve a third amended complaint insofar as asserted against those defendants.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendants Sterling Group Asset Management, LLC, Michael Chera, and Angelo Monaco, payable by the plaintiff.On April 4, 2014, the defendant Deacons of the Dutch Congregation of Flatbush, a/k/a the Reformed Protestant Church of the Town of Flatbush (hereinafter the Church), the owner of certain real property located in Brooklyn, entered into an agreement with the plaintiff to lease the property, which included an option for the plaintiff to purchase the property. On August 14, 2014, the Church entered into a contract to sell the property to the defendant Sterling Group Asset Management, LLC (hereinafter Sterling). Thereafter, the plaintiff commenced this action against the Church, inter alia, for specific performance of the lease, alleging that the Church breached the lease by entering into a contract to sell the property to Sterling. In a second amended complaint, the plaintiff added causes of action against Sterling, Michael Chera, the principal of Sterling, and Angelo Monaco, the signatory for Sterling on the contract of sale (hereinafter collectively the Sterling defendants), to recover damages for tortious interference with contract and injurious falsehood.The Sterling defendants moved pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint insofar as asserted against them for failure to state a cause of action. The plaintiff cross-moved for leave to serve a third amended complaint. In an order dated August 14, 2015, the Supreme Court, inter alia, granted the Sterling defendants’ motion to dismiss the second amended complaint insofar as asserted against them and denied the plaintiff’s cross motion for leave to serve a third amended complaint. The plaintiff appeals. During the pendency of the appeal, the plaintiff and the Church entered into a settlement agreement. In a decision and order on application of this Court dated December 28, 2016, the appeal insofar as taken against the Church was deemed withdrawn.Contrary to the plaintiff’s contention, the plaintiff failed to state a cause of action to recover damages for tortious interference with contract against the Sterling defendants. ”The elements of a cause of action alleging tortious interference with contract are: (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant’s knowledge of that contract, (3) the defendant’s intentional procurement of a third-party’s breach of that contract without justification, and (4) damages” (Nagan Constr., Inc. v. Monsignor McClancy Mem. High Sch., 117 AD3d 1005, 1006; see Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424). Further, the plaintiff “must specifically ‘allege that the contract would not have been breached but for the defendant’s conduct’” (Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1036, quoting Burrowes v. Combs, 25 AD3d 370, 373). Here, even accepting the facts alleged in the second amended complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d 83, 87-88), the plaintiff failed to sufficiently allege that the lease would not have been breached but for the Sterling defendants’ conduct (see Nagan Constr., Inc. v. Monsignor McClancy Mem. High Sch., 117 AD3d at 1006; Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, 82 AD3d at 1036). The plaintiff also failed to state a cause of action to recover damages for injurious falsehood against the Sterling defendants, since the plaintiff failed to sufficiently allege that any losses it suffered were causally related to the Sterling defendants’ conduct (see Emergency Enclosures, Inc. v. National Fire Adj. Co., Inc., 68 AD3d 1658, 1660; Waste Distillation Tech. v. Blasland & Bouck Engrs., 136 AD2d 633, 634; L.W.C. Agency v. St. Paul Fire & Mar. Ins. Co., 125 AD2d 371, 373), or to allege special damages with the requisite particularity (see Pesce Bros., Inc. v. Cover Me Ins. Agency of NJ, Inc., 144 AD3d 1120, 1122; Lihong Dong v. Ming Hai, 108 AD3d 599, 600; Stanton v. Carrara, 28 AD3d 642). Accordingly, the Supreme Court properly granted the Sterling defendants’ motion to dismiss the second amended complaint insofar as asserted against them.Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s cross motion which was for leave to serve a third amended complaint insofar as asserted against the Sterling defendants, since the proposed third amended complaint was palpably insufficient and patently devoid of merit (see Ferrandino & Son, Inc. v. Wheaton Bldrs., Inc., LLC, 82 AD3d at 1037).The plaintiff’s remaining contentions are without merit.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.White Knight of Flatbush, LLC, appellant, v. Deaconsof the Dutch Congregation of Flatbush, also knownas the Reformed Protestant Dutch Church of theTown of Flatbush, defendant, Sterling Group AssetManagement, LLC respondents.(Index No. 508807/14) Motion by the respondents to dismiss an appeal from an order of the Supreme Court, Kings County, dated August 14, 2015, on the ground that it has been rendered academic. By decision and order on motion of this Court dated March 31, 2017, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the motion is denied.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Scott B. Corr, ap — (Ind. No. 14-00183; S.C.I. No. 14-00445)Appeals by the defendant from two judgments of the County Court, Orange County (Nicholas De Rosa, J.), both rendered March 4, 2015, convicting him of criminal possession of a weapon in the first degree under Indictment No. 14-00183, and conspiracy in the second degree under Superior Court Information No. 14-00445, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.We need not determine whether the defendant’s purported waiver of the right to appeal was invalid (cf. People v. Ward, 140 AD3d 903, 904; People v. Harvey, 137 AD3d 1162, 1163), since the defendant’s contentions survive even a valid waiver of the right to appeal (see People v. Seaberg, 74 NY2d 1, 10; People v. Harris, 153 AD3d 552, 553; People v. Aquart, 149 AD3d 768; People v. Bonds, 148 AD3d 1304, 1305).“The decision to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion” (People v. Harris, 153 AD3d at 553; see CPL 220.60[3]; People v. Douglas, 83 AD3d 1092). Here, since the record demonstrates that the defendant’s pleas of guilty were entered voluntarily, knowingly, and intelligently, the County Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his pleas (see People v. Harris, 153 AD3d at 553; People v. Manragh, 150 AD3d 762, lv granted 29 NY3d 1130; People v. Morris, 148 AD3d 732).“A superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided” (CPL 200.15). ”An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” (People v. Guerrero, 28 NY3d 110, 116 [internal quotation marks omitted]; see People v. Price, 234 AD2d 978, 978). Here, contrary to the defendant’s contention, the superior court information was not jurisdictionally defective. It alleged every material element of conspiracy in the second degree (see Penal Law §§105.15, 105.20). By pleading guilty, the defendant forfeited his challenge to the sufficiency of the factual allegations in the superior court information (see People v. McCrory, 114 AD3d 810; People v. Price, 234 AD2d at 978-979).Contrary to his contention, the defendant’s waiver of indictment was valid (see People v. McIntyre, 178 AD2d 559, 559-560; see also People v. Wicks, 42 AD3d 585).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.PEOPLE, etc., res, v. Connie L. Boykin, a/k/a Connie Boykin, ap — (Ind. No. 14-00702)Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered September 25, 2015, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt of criminal possession of a weapon in the third degree was not against the weight of the evidence (see CPL 470.15[5]; People v. Romero, 7 NY3d 633). Contrary to the defendant’s contention, his conduct was not consistent with innocent possession (see People v. Banks, 76 NY2d 799, 800-801; People v. Rossi, 99 AD3d 947, 951, affd 24 NY3d 968; People v. Sheehan, 41 AD3d 335; see also People v. Williams, 50 NY2d 1043, 1044-1045; People v. Crawford, 96 AD3d 964; People v. Hawkins, 258 AD2d 472). Moreover, the defendant’s contention that the verdict was inconsistent and, thus, against the weight of the evidence, is without merit (see People v. Kypri, 149 AD3d 980; see also People v. Almodovar, 62 NY2d 126, 130; People v. Messina, 209 AD2d 642, 643).DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.Jonathan McAllister, Jr., ap, v. City of New York res — (Index No. 15446/11)Appeal from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated December 5, 2014. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligent supervision.ORDERED that the order is affirmed insofar as appealed from, with costs.On October 9, 2010, while incarcerated at Rikers Island, the plaintiff’s jaw was fractured when another inmate assaulted him in the gym of the Robert N. Davoren Center. The plaintiff commenced this action alleging, inter alia, that the defendants were negligent in failing to exercise appropriate supervision. The defendants moved, inter alia, for summary judgment dismissing the cause of action alleging negligent supervision. The Supreme Court granted that branch of the motion. The plaintiff appeals.A municipality owes a duty of care to inmates in correctional facilities to safeguard them from attacks from other inmates (see Sanchez v. State of New York, 99 NY2d 247, 252; Barnette v. City of New York, 96 AD3d 700, 701). This duty, however, does not place the municipality in the role of insurers of inmate safety (see Sanchez v. State of New York, 99 NY2d at 256; Barnette v. City of New York, 96 AD3d at 701). Rather, “the scope of the [municipality's] duty to protect inmates is limited to risks of harm that are reasonably foreseeable” (Sanchez v. State of New York, 99 NY2d at 253; see Vasquez v. State of New York, 68 AD3d 1275, 1276; Codrington v. State of New York, 19 AD3d 443, 444). Foreseeability includes what the defendant municipality knew or should have known (see Barnette v. City of New York, 96 AD3d at 701; Vasquez v. State of New York, 68 AD3d at 1276).Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the assault upon the plaintiff was not reasonably foreseeable. In this regard, the defendants’ submissions demonstrated that the plaintiff’s assailant was not a known gang member, had no prior incidents of fighting or aggressive behavior while at Rikers Island, and was not classified as high risk for fighting. Additionally, their submissions established that the plaintiff did not know or see his assailant, who, without provocation, punched him in the jaw, and that at the time there was a correction officer present providing the proper level of supervision in accordance with the applicable standard of “active supervision” as defined in the State Commission of Correction Minimum Standards and Regulations for Management of County Jails and Penitentiaries (9 NYCRR 7003.2[c]; 7003.4[a]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). The opinion of the plaintiff’s expert that the defendants provided inadequate supervision and that the risk of assault upon the plaintiff was foreseeable was conclusory, speculative, and unsupported by the record (see Grosskopf v. 8320 Parkway Towers Corp., 88 AD3d 765, 766; Micciola v. Sacchi, 36 AD3d 869, 871). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the negligent supervision cause of action.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Elizabeth Pastor, pet, v. Partnership for Childrens Rights, res — (Index No. 14925/12)Elizabeth Pastor, Brooklyn, NY, petitioner pro se.Jackson Lewis P.C., White Plains, NY (Michael A. Frankel of counsel), for respondent.Proceeding pursuant to Executive Law §298 and CPLR article 78 to review a determination of the New York State Division of Human Rights dated June 26, 2012, dismissing the petitioner’s administrative complaint upon a finding of no probable cause to believe that Partnership for Children’s Rights unlawfully discriminated or retaliated against the petitioner.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.In July 2009, the petitioner filed a complaint with the New York State Division of Human Rights (hereinafter the DHR) against her former employer, Partnership for Children’s Rights (hereinafter the respondent), alleging that the respondent unlawfully discriminated and retaliated against her. In a determination dated June 26, 2012, the DHR dismissed the administrative complaint, finding no probable cause to believe that the respondent unlawfully discriminated or retaliated against the petitioner. The petitioner then commenced this proceeding pursuant to Executive Law §298 and CPLR article 78 to review the DHR’s determination. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).The Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a hearing held pursuant to direction of law at which evidence was taken (see CPLR 7803[4]; Matter of Scott v. Village of Nyack Hous. Auth., 147 AD3d 957, 958; Matter of VanHouten v. Mount St. Mary Coll., 137 AD3d 1293, 1294-1295). Accordingly, the determination is not subject to substantial evidence review. Nevertheless, since the full administrative record is before us, in the interest of judicial economy, we will decide the proceeding on the merits (see Matter of Scott v. Village of Nyack Hous. Auth., 147 AD3d at 958; Matter of VanHouten v. Mount St. Mary Coll., 137 AD3d at 1295).“Where, as here, the DHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacking a rational basis” (Matter of Sahni v. Foster, 145 AD3d 733, 734). ”The [DHR's] determination is ‘entitled to considerable deference due to its expertise in evaluating discrimination claims’” (Matter of Steinberg-Fisher v. North Shore Towers Apts., Inc., 149 AD3d 848, 850, quoting Matter of Camp v. New York State Div. of Human Rights, 300 AD2d 481, 482). Here, the DHR’s determination that there was no probable cause was not arbitrary and capricious or lacking a rational basis in the record (see Matter of Sahni v. Foster, 145 AD3d at 734; Matter of Walker v. NYS Div. of Human Rights, 129 AD3d 980).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.Citimortgage, Inc., res, v. Ronald A. Nimkoff, appellant def — (Index No. 8816/12)Ronald A. Nimkoff, Syosset, NY, appellant pro se.Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated October 22, 2015. The order, insofar as appealed from, denied that branch of the cross motion of the defendant Ronald A. Nimkoff which was for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f).ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the cross motion of the defendant Ronald A. Nimkoff which was for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f) is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and determination on that issue.The plaintiff commenced this action against, among others, the defendant Ronald A. Nimkoff, seeking to foreclose a mortgage on Nimkoff’s home in Syosset. As mandated by CPLR 3408(a), the plaintiff and Nimkoff participated in settlement conferences for the statutorily intended purpose of determining whether they could reach a “mutually agreeable resolution” (CPLR 3408[f]). After the parties failed to reach a resolution, the plaintiff moved, inter alia, for summary judgment on the complaint and an order of reference. Nimkoff cross-moved for summary judgment dismissing the complaint insofar as asserted against him or, in the alternative, a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f). In the order appealed from, the Supreme Court denied the motion and the cross motion with leave to renew on the issue of summary judgment upon the completion of discovery. The court also denied that branch of Nimkoff’s cross motion which was for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f). Nimkoff appeals from so much of the order as denied that branch of his cross motion which was for a hearing. We reverse the order insofar as appealed from.Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see CPLR 3408[f]; US Bank N.A. v. Sarmiento, 121 AD3d 187, 200; Wells Fargo Bank, N.A. v. Meyers, 108 AD3d 9). The purpose of the good-faith requirement in CPLR 3408 is to ensure that both the plaintiff and the defendant are prepared to participate in a meaningful effort at the settlement conference to reach a resolution (see US Bank N.A. v. Sarmiento, 121 AD3d at 200). To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” (US Bank N.A. v. Sarmiento, 121 AD3d at 203; see Aurora Loan Servs., LLC v. Diakite, 148 AD3d 662, 663; LaSalle Bank, N.A. v. Dono, 135 AD3d 827, 828; U.S. Bank N.A. v. Smith, 123 AD3d 914, 916).In support of his cross motion, Nimkoff submitted, among other things, his own affidavit in which he averred that the plaintiff refused to negotiate with him for the stated reason that another entity, Hudson City Savings Bank (hereinafter Hudson City), was the holder of the mortgage and did not allow loan modifications. In opposition, the plaintiff contended that its counsel properly appeared at the two foreclosure settlement conferences and advised the court that Hudson City does not participate in the home affordable modification program. The plaintiff submitted, among other things, the master mortgage loan purchase and servicing agreement (hereinafter PSA) between the plaintiff and Hudson City to establish that the plaintiff was the servicer of the subject mortgage and Hudson City was the purchaser. However, the PSA also authorized the plaintiff to modify the terms of the subject mortgage loan with Hudson City’s consent. In any event, the statute requires the parties to negotiate in good faith to reach a mutually agreeable resolution. There is no evidence in the record that the plaintiff attempted to gain Hudson City’s consent to offer a loan modification or offered Nimkoff another nonretention solution, such as a deed in lieu of foreclosure. In fact, there is no evidence in the record that any effort was made to reach a resolution at the two foreclosure settlement conferences. Under the totality of the circumstances of this case, Nimkoff raised a factual issue as to whether the plaintiff met its obligation to negotiate in good faith (see Onewest Bank, FSB v. Colace, 130 AD3d 994, 996; U.S. Bank N.A. v. Smith, 123 AD3d at 916-917).Accordingly, the Supreme Court should have granted that branch of Nimkoff’s cross motion which was for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f), and we remit the matter to the Supreme Court, Nassau County, for a hearing and determination on that issue.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.Ramin Abizadeh, ap, v. Galit Abizadeh, res — (Index No. 203117/09)Appeal from an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered October 20, 2015. The order, insofar as appealed from, denied the plaintiff’s cross motion (1) to hold the defendant in contempt for her failure to comply with an order of that court dated July 12, 2013, and (2) to impose sanctions against nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, on the ground that the notice of cross motion failed to comply with CPLR 2214(a).ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff, Ramin Abizadeh, and the defendant, Galit Abizadeh, were married in 1995 and have three children. The plaintiff commenced this action for a divorce and ancillary relief in November 2009. In a prejudgment order dated July 12, 2013, the Supreme Court directed, among other things, that the marital residence be placed on the market for sale within 30 days from the date of the order. The judgment of divorce, which was entered in May 2014, included a similar provision. In 2016, this Court determined appeals relating to various provisions of the prejudgment order and the judgment (see Abizadeh v. Abizadeh, 137 AD3d 824), and a separate appeal relating to the plaintiff’s compliance with the child support provisions of the judgment and his initial effort to reduce his child support obligations (see Matter of Abizadeh v. Abizadeh, 137 AD3d 900).This appeal and two other appeals decided herewith (see Abizadeh v. Abizadeh, __ AD3d __ [Appellate Division Docket No. 2016-01567]; Abizadeh v. Abizadeh, __ AD3d __ [Appellate Division Docket No. 2016-13480]), relate to motion practice following the entry of the judgment of divorce. In July 2015, the defendant moved, by order to show cause, to vacate that portion of the judgment which directed the sale of the marital residence. The plaintiff opposed the motion and cross-moved to hold the defendant in contempt for her alleged failure to place the marital residence on the market for sale, in violation of the order dated July 12, 2013. The plaintiff’s motion also sought to sanction nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, for representing the defendant “without disclosure to the court.” In the order appealed from, the Supreme Court, in effect, determined that the plaintiff’s notice of cross motion failed to comply with CPLR 2214(a), and it denied his cross motion on that basis. The plaintiff appeals.CPLR 2214(a) provides that a notice of motion shall “specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor” (see Shields v. Carbone, 99 AD3d 1100, 1102; Matter of Blauman-Spindler v. Blauman, 68 AD3d 1105, 1106; HCE Assoc. v. 3000 Watermill Lane Realty Corp., 173 AD2d 774). Here, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion on the ground that the plaintiff’s notice of cross motion was deficient (see CPLR 2214[a]; 2215). The plaintiff’s notice of cross motion failed to sufficiently specify the relief sought, against whom it was sought, and the grounds therefor (see CPLR 2214[a]). Although the plaintiff’s supporting papers supplied the missing information, a court is not required to comb through a litigant’s papers to find information that is required to be set forth in the notice of motion (see Jud. Conf. and Chief Admin. of the Cts. of the State of N.Y., Rep. to the 1980 Legis. in Relat. to Civ. Pract. in the Cts., Rep. of Chief Admin., at 137; see generally Fried v. Jacob Holding, Inc., 110 AD3d 56, 61-62).BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.Ramin Abizadeh, ap, v. Galit Abizadeh, res — (Index No. 203117/09)Appeal from an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 22, 2015. The order, insofar as appealed from, denied the plaintiff’s motion for a downward modification of his child support obligation.ORDERED that the order is affirmed insofar as appealed from, with costs.The background of this action is stated in Abizadeh v. Abizadeh (__ AD3d __ [Appellate Division Docket No. 2015-11360; decided herewith]). Insofar as relevant to this appeal, prior to the entry of the judgment of divorce, the Supreme Court issued an order dated July 12, 2013, which, inter alia, imputed income to the plaintiff in the amount of $165,000 per annum. The judgment of divorce, entered in May 2014, provided, inter alia, that the plaintiff’s child support obligation was in the sum of $4,009 per month. In November 2015, the plaintiff moved for a downward modification of that support obligation. In the order appealed from, the Supreme Court, inter alia, denied the plaintiff’s motion. The plaintiff appeals.The Supreme Court properly denied the plaintiff’s motion, as he failed to establish the existence of a substantial change in circumstances warranting a downward modification of his child support obligation (see Family Ct Act §451[3][b][ii]; Domestic Relations Law §236[B][9][b][2][ii][B]; Matter of Fantau v. Fantau, 134 AD3d 1109, 1110; Raab v. Raab, 129 AD3d 1050, 1051).BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.Ramin Abizadeh, ap, v. Galit Abizadeh, res — (Index No. 203117/09)Appeal from an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 7, 2016. The order, insofar as appealed from, in effect, denied those branches of the plaintiff’s motion which were to hold the defendant in contempt of court for her alleged failure to comply with an order of that court dated July 12, 2013, to impose sanctions against nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, to hold a hearing to determine the cost of the children’s college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the cost of the children’s college expenses, and to reduce the plaintiff’s child support obligation.ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff’s motion which was to hold a hearing to determine the amount of the children’s college expenses and to apportion those expenses between the parties, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of the children’s college expenses and for an apportionment of expenses between the parties thereafter.The background of this action is stated in Abizadeh v. Abizadeh (__ AD3d __, [Appellate Division Docket No. 2015-11360; decided herewith]). Insofar as relevant to this appeal, in August 2016, the plaintiff moved to hold the defendant in contempt of court for her alleged failure to comply with an order of that court dated July 12, 2013, or to hold a hearing on the issue of contempt, to impose sanctions against nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, to hold a hearing to determine the cost of the children’s college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the children’s college expenses, and to reduce the plaintiff’s child support obligation. In the order appealed from, the Supreme Court, in effect, granted that branch of the plaintiff’s motion which was to hold a hearing on the issue of contempt and denied those branches of the plaintiff’s motion which were to hold the defendant in contempt of court, to impose sanctions against the nonparties, to hold a hearing to adjudicate the cost of the children’s college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the children’s college expenses, and to reduce the plaintiff’s child support obligation. The plaintiff appeals from the denial of those branches of his motion.Pursuant to Domestic Relations Law §240(1-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement. The court may consider the circumstances of the case and the respective parties as well as the best interests of the child and the requirements of justice (see Frates v. Frates, 142 AD3d 582, 584; Dougherty v. Dougherty, 131 AD3d 916, 918; Powers v. Wilson, 56 AD3d 642, 642-643). Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which sought a hearing to determine the parties’ responsibilities with respect to the children’s college expenses. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine the amount of those expenses and to apportion them between the parties (see Dougherty v. Dougherty, 131 AD3d at 918; Powers v. Wilson, 56 AD3d at 642-643).“[A] noncustodial parent paying child support while contributing to the expenses of a child’s college education is entitled to a credit for the amounts contributed to college expenses during periods when the child lives away from home” (Matter of Levy v. Levy, 52 AD3d 717, 718). However, voluntary payments for the benefit of the children, not made pursuant to a court order, may not be credited against the amounts due pursuant to a judgment of divorce or an order (see LiGreci v. LiGreci, 87 AD3d 722, 724). Contrary to the plaintiff’s contention, his voluntary payments of the children’s college expenses, which were not made pursuant to a court order, may not be credited against the amounts due pursuant to the judgment of divorce (see O’Brien v. O’Brien, 115 AD3d 720, 724; LiGreci v. LiGreci, 87 AD3d 722, 724; Matter of Hang Kwok v. Xiao Yan Zhang, 35 AD3d 467, 468).The Supreme Court properly denied that branch of the plaintiff’s motion which sought to impose sanctions against nonparties Nicolette Barbarino and the Law Offices of Alexander Potruch, LLC, as the plaintiff failed to demonstrate that the nonparties engaged in sanctionable conduct (see 22 NYCRR 130-2.1, 130-1.1[a]; cf. Matter of Tanisea F., 44 AD3d 1043, 1044).The Supreme Court properly denied that branch of the plaintiff’s motion which sought to reduce his child support obligation. The plaintiff’s submissions, which relied on overpayments he had already made and underpayments by the defendant, did not set forth a proper basis upon which to order a prospective reduction in the plaintiff’s child support obligation (see Mairs v. Mairs, 61 AD3d 1204, 1210; Matter of Taddonio v. Wasserman-Taddonio, 51 AD3d 935, 936; cf. Sprole v. Sprole, 145 AD3d 1367, 1370-1371).Finally, we find no basis to disturb the Supreme Court’s determination of that branch of the plaintiff’s motion which sought to hold the defendant in contempt of court for her alleged failure to comply with the order dated July 12, 2013.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Johnny Velez-Garriga, ap — (Ind. No. 10962/13)Paul Skip Laisure, New York, NY (Denise A. Cors of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Joyce Adolfsen of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil J. Firetog, J.), rendered July 29, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement he made to law enforcement officials.ORDERED that the judgment is affirmed.The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress a statement he made to the lead detective. Although the defendant’s indelible right to counsel had attached, the defendant’s statement was spontaneous and not the result of any improper police conduct or questioning (see People v. Lynes, 49 NY2d 286; People v. Webb, 224 AD2d 464).The defendant’s contention that he was deprived of his right to a fair trial by the improper admission into evidence of excerpts of recorded telephone calls he made during his detention at Rikers Island Correctional Facility is only partially preserved for appellate review (see CPL 470.05[2]). In any event, the Supreme Court providently exercised its discretion in admitting this evidence as proof of consciousness of guilt (see People v. Nelson, 112 AD3d 744; People v. Bramble, 81 AD3d 968).The defendant’s contention that he was deprived of his right to a fair trial by the improper admission into evidence of a photograph depicting his tattooed hands is unpreserved for appellate review (see CPL 470.05[2]). In any event, to the extent the admission of the photograph was improper, it did not deprive the defendant of a fair trial, and any other error in this regard was harmless (see People v. Crimmins, 36 NY2d 230, 241-242; People v. Thompson, 34 AD3d 852).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.Chase Home Finance, LLC, ap, v. Baila Weinfeld, respondent def — (Index No. 12870/08)Beth E. Goldman, New York, NY (Timothy D. Brennan of counsel), for respondent.Appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated March 4, 2016. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of that court dated October 23, 2015, granting the cross motion of the defendant Baila Weinfeld to vacate her default in opposing the plaintiff’s motion, inter alia, for summary judgment on the complaint, and directing her, in effect, to serve an amended answer within 60 days, and thereupon vacated an order of that court (Lawrence Knipel, J.) dated August 12, 2009, granting the plaintiff’s unopposed motion for summary judgment on the complaint and to strike her answer.ORDERED that the order dated March 4, 2016, is reversed insofar as appealed from, on the law, with costs, upon reargument, the determination in the order dated October 23, 2015, is vacated, the cross motion of the defendant Baila Weinfeld to vacate her default in opposing the plaintiff’s motion is denied, and the order dated August 12, 2009, is reinstated.In April 2008, the plaintiff commenced this action against, among others, the defendant Baila Weinfeld, seeking to foreclose a mortgage on Weinfeld’s home in Brooklyn. After Weinfeld served an answer, the plaintiff moved for summary judgment on the complaint and to strike Weinfeld’s answer. In an order dated August 12, 2009, the Supreme Court granted the plaintiff’s unopposed motion.The plaintiff subsequently moved for a judgment of foreclosure and sale. Weinfeld cross-moved to vacate her default in opposing the plaintiff’s motion for summary judgment on the complaint and to strike her answer. In an order dated October 23, 2015, the Supreme Court granted Weinfeld’s cross motion and directed Weinfeld, in effect, to serve an amended answer within 60 days. Subsequently, the plaintiff moved for leave to reargue its opposition to Weinfeld’s cross motion. In an order dated March 4, 2016, the court, upon reargument, inter alia, adhered to its original determination in the order dated October 23, 2015, and also vacated the order dated August 12, 2009. The plaintiff appeals.“In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion” (New Century Mtge. Corp. v. Chimmiri, 146 AD3d 893, 894; see Aurora Loan Servs., LLC v. Ahmed, 122 AD3d 557, 557). Such a motion must be “made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party” (CPLR 5015[a][1]; see New Century Mtge. Corp. v. Chimmiri, 146 AD3d at 894). Here, Weinfeld’s cross motion to vacate her default in opposing the plaintiff’s motion for summary judgment on the complaint and to strike her answer was made six years after service of the order with notice of entry. Accordingly, the cross motion was untimely (see New Century Mtge. Corp. v. Chimmiri, 146 AD3d at 894). In any event, the record reflects that Weinfeld failed to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the motion (see id.). Therefore, the Supreme Court improperly granted Weinfeld’s cross motion and improperly vacated the order dated August 12, 2009, granting the plaintiff’s motion.Weinfeld’s remaining contentions are without merit.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Mastro, J.P.; Dillon, Cohen and Iannacci, JJ.MATTER of Jenny Nakas, res, v. Mehmet Umit Nakas, ap — (Proceeding Nos. 1 and 2)MATTER of Mehmet Umit Nakas, ap, v. Jenny Nakas, res — (Proceeding No. 3) (Docket Nos. O-16271-12/16C, V-16272-12, V-20089-12)Appeal from an order of the Family Court, Queens County (Anne-Marie Jolly, J.), dated December 14, 2016. The order, insofar as appealed from, after a hearing, (1) granted the mother’s petition alleging that the father violated an order of protection of that court dated September 18, 2015, and to extend the duration of that order of protection, (2) granted, on the parties’ consent, that branch of the mother’s separate petition which was for sole legal and physical custody of the parties’ child, (3) in effect, denied, on the parties’ consent, that branch of the father’s petition which was for custody of the parties’ child, (4) denied that branch of the father’s petition which was for joint decision-making authority, and (5) granted that branch of the mother’s petition which was for final decision-making authority.ORDERED that the appeal from so much of the order dated December 14, 2016, as granted, on the parties’ consent, that branch of the mother’s petition which was for sole legal and physical custody of the parties’ child and, in effect, denied, on the parties’ consent, that branch of the father’s petition which was for custody of the parties’ child is dismissed, without costs or disbursements; and it is further,ORDERED that the order dated December 14, 2016, is affirmed insofar as reviewed, without costs or disbursements.The parties were married in 2003 and are the parents of one child, born in 2010. The parties lived together until July 2012, when the mother left the marital residence with the child. In August 2012, the mother filed a family offense petition against the father and a petition for sole legal and physical custody of the child. The father filed a petition for custody of the child in September 2012. After a fact-finding hearing on the family offense petition, the Family Court issued an order of protection dated September 18, 2015, against the father based on the court’s finding that he committed family offenses, including harassment in the second degree and disorderly conduct. The order of protection, inter alia, directed the father to stay away from the mother and the child, except for court-ordered visitation.In January 2016, the father consented to an award of sole legal and physical custody of the child to the mother, but continued to seek joint decision-making authority. In March 2016, the mother filed a petition alleging that the father violated the order of protection and to extend the duration of the order of protection. Following a hearing on the custody petitions and the violation petition, in an order dated December 14, 2016, the Family Court determined that the father violated the order of protection and extended its duration until December 14, 2018. The court also determined that it was in the best interests of the child for the mother to be awarded sole legal and physical custody of the child and final decision-making authority. The father appeals.The appeal from so much of the order dated December 14, 2016, as granted, on the parties’ consent, that branch of the mother’s petition which was for sole legal and physical custody of the child and, in effect, denied, on the parties’ consent, that branch of the father’s petition which was for custody of the child must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby (see Elsayed v. Edrees, 141 AD3d 503, 504).Contrary to the father’s contentions, the record supports the Family Court’s determination that, during the child’s physical therapy appointment in March 2016, the father violated the order of protection dated September 18, 2015, which provided, inter alia, that he “[r]efrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with [the mother].”Further, the Family Court’s determination that joint decision-making was not feasible and that the child’s best interests would be served by awarding the mother final decision-making authority has a sound and substantial basis in the record and will not be disturbed (see Matter of Batista v. Falcon, 148 AD3d 698, 699; Matter of Zall v. Theiss, 144 AD3d 831, 832-833).The father’s remaining contentions are not properly before this Court.MASTRO, J.P., DILLON, COHEN and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.Anthony Costidis, ap, v. City of New York, et al., res — (Index No. 701929/12)Charles R. Sabel, New York, NY, for appellant.Havkins, Rosenfeld, Ritzert & Varriale, LLP, New York, NY (Farng-Yeong Foo, Jaclyn Schianodicola, and Carla Varriale of counsel), for respondents.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Gavrin, J.), dated April 13, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On July 15, 2011, the plaintiff, while walking on a walkway after parking his car at a lot located on the Citi Field complex in Queens, allegedly was injured within the defendants’ exterior grounds when he fell due to a difference in elevation between the walkway, which consisted of patio pavers, and an abutting tree bed. In June 2012, the plaintiff commenced this action against the defendants. After discovery, the defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the alleged condition was open and obvious and not inherently dangerous. The Supreme Court granted the motion, determining that the condition was trivial and therefore not actionable. The plaintiff appeals. We affirm, albeit on a different ground.An owner of property or tenant in possession of real property has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann, 87 NY2d 871, 872; Basso v. Miller, 40 NY2d 233, 241). However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses (see Capasso v. Village of Goshen, 84 AD3d 998, 999; Cupo v. Karfunkel, 1 AD3d 48, 51). Here, the defendants established, prima facie, that the difference in elevation between the surface of the walkway and the surface of the tree bed was not inherently dangerous and was readily observable by the reasonable use of one’s senses (see Witkowski v. Island Trees Pub. Lib., 125 AD3d 768, 770; Capasso v. Village of Goshen, 84 AD3d at 999-1000; Seelig v. Burger King Corp., 66 AD3d 986). In opposition, the plaintiff failed to raise a triable issue of fact.In light of our determination, we need not reach the issue of whether the alleged condition was trivial.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.MATTER of Marek Gazda, ap, v. New York State Department of Motor Vehicles, res — (Index No. 3141/15)In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Administrative Appeals Board dated July 28, 2015, affirming a determination of an administrative law judge dated July 28, 2014, which, after a hearing, found that the petitioner refused to submit to a chemical test in violation of Vehicle and Traffic Law §1194, and revoked his driver license, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.), dated January 4, 2016, which denied the petition and dismissed the proceeding on the ground that he failed to exhaust his administrative remedies.ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the proceeding on the ground that the petitioner failed to exhaust his administrative remedies, and substituting therefor a provision dismissing the proceeding on the merits; as so modified, the judgment is affirmed, without costs or disbursements.“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” (Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57). In the context of CPLR article 78 proceedings, a reviewing court may not consider arguments that were not raised at the administrative level (see Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 NY2d 833, 834; Matter of Klapak v. Blum, 65 NY2d 670; Matter of Failing v. Fiala, 111 AD3d 723, 724; Matter of Molinsky v. New York State Dept. of Motor Vehs., 105 AD3d 960, 960-961; Matter of Kearney v. Village of Cold Spring Zoning Bd. of Appeals, 83 AD3d 711, 713; Matter of Citylights at Queens Landing, Inc. v. New York City Dept. of Envtl. Protection, 62 AD3d 871, 872; Matter of Kaufman v. Incorporated Vil. of Kings Point, 52 AD3d 604, 607). Here, contrary to the Supreme Court’s determination, the issue of whether the petitioner was adequately warned of the consequences of refusing to submit to a chemical test to determine his blood alcohol content (see Vehicle and Traffic Law §1194[2]) was raised and considered by the agency. Thus, the court erred in dismissing the proceeding on the ground that the petitioner failed to exhaust his administrative remedies.Since the petition, now reinstated, raises an issue of substantial evidence and the full record is before this Court, this Court shall retain jurisdiction and decide the proceeding on the merits in the interest of judicial economy (cf. Matter of Tomczak v. Bd. of Educ., 144 AD3d 1165, 1166; Matter of Halperin v. City of New Rochelle, 24 AD3d 768, 772-773).“‘To annul an administrative determination after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination’” (Matter of DeMichele v. Dept. of Motor Vehs. of N.Y. State, 136 AD3d 629, 630, quoting Matter of Mannino v. Deptartment of Motor Vehs. of State of N.Y.-Traffic Violations Div., 101 AD3d 880, 880). ”Substantial evidence consists of ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’” (Matter of Wagner v. Fiala, 113 AD3d 694, 695, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180). Substantial evidence consists of more than speculation, conjecture, or a mere scintilla of evidence (see Matter of Wagner v. Fiala, 113 AD3d at 695; Matter of Marshall v. Fischer, 103 AD3d 726; Matter of Miserendino v. City of Mount Vernon, 96 AD3d 946). ”‘The duty of weighing the evidence and resolving conflicting testimony rests solely upon the administrative agency’” (Matter of Wagner v. Fiala, 113 AD3d at 695, quoting Matter of Wright v. Commissioner of N.Y. State Dept. of Motor Vehs., 189 AD2d 767, 768).Here, the evidence adduced at the hearing demonstrated that the arresting officer gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test (see Vehicle and Traffic Law §1194[2][c][3]; Matter of Hickey v. New York State Dept. of Motor Vehs., 142 AD3d 668, 669; Matter of Wagner v. Fiala, 113 AD3d at 695). Contrary to the petitioner’s contention, the record does not demonstrate that the arresting officer, who testified at the hearing, gave the petitioner an incorrect explanation of the refusal warnings (see Matter of Wagner v. Fiala, 113 AD3d at 695). The findings of the administrative law judge are supported by substantial evidence in the record, and the New York State Department of Motor Vehicles Administrative Appeals Board properly drew an adverse inference from the petitioner’s failure to testify at the hearing (see Matter of Hickey v. New York State Dept. of Motor Vehs., 142 AD3d at 669).The petitioner’s remaining contentions either are without merit or have been rendered academic by our determination.Accordingly, the Supreme Court should have dismissed the proceeding on the merits.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Leventhal, J.P.; Cohen, Miller and Maltese, JJ.MATTER of Steven Mastronardi pet-res, v. Debra Milano-Granito, respondent-ap; Tyler M. (Anonymous) nonparty-ap — (Docket Nos. V-10289-12, V-10290-12, V-10291-12)Eric J. Herrmann, New York, NY, for respondent-appellant.Elaine Miller, Great Neck, NY, for nonparty-appellants.Polin, Prisco & Villafane, Westbury, NY (Armand J. Prisco of counsel), for petitioners-respondents.Separate appeals from an order of the Family Court, Nassau County (Robert Lopresti, Ct. Atty. Ref.), dated January 25, 2016. The order, after a hearing, granted the petition of the paternal grandparents pursuant to Domestic Relations Law §72(1) for visitation with the subject children.ORDERED that the order is affirmed, without costs or disbursements.The paternal grandparents of the subject children commenced this proceeding pursuant to Domestic Relations Law §72(1) for visitation with the children. After a hearing, the Family Court granted the petition and set forth a visitation schedule. The mother appeals, and the children separately appeal.When a grandparent seeks visitation pursuant to Domestic Relations Law §72(1), the court must make a two-part inquiry (see Matter of Winn v. Diaz, 156 AD3d 645, 646; Matter of B.S. v. B.T., 148 AD3d 1029, 1030; Matter of Fitzpatrick v. Fitzpatrick, 137 AD3d 784, 784-785). First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances (see Matter of E.S. v. P.D., 8 NY3d 150, 157; Matter of Pinsky v. Botnick, 105 AD3d 852, 854; Matter of Steinhauser v. Haas, 40 AD3d 863, 864). ”Where either parent of the grandchild has died, the grandparents have an absolute right to standing” (Matter of Emanuel S. v. Joseph E., 78 NY2d 178, 181). Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child (see Matter of E.S. v. P.D., 8 NY3d at 157; Matter of Fitzpatrick v. Fitzpatrick, 137 AD3d at 785; Matter of Pinsky v. Botnick, 105 AD3d at 854). ”[T]he court’s determination concerning whether to award visitation ‘depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents’ and grandparents” (Matter of Hilgenberg v. Hertel, 100 AD3d 1432, 1434, quoting Matter of Thomas v. Thomas, 35 AD3d 868, 869; see Matter of Steinhauser v. Haas, 40 AD3d at 864). This “determination concerning visitation will not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Hilgenberg v. Hertel, 100 AD3d at 1434; see Matter of Troiano v. Marotta, 127 AD3d 877, 879; Matter of Gonzalez v. Borbon, 121 AD3d 895, 896).Here, the death of the children’s father provided the paternal grandparents with automatic standing to seek visitation (see Matter of E.S. v. P.D., 8 NY3d at 157; Matter of B.S. v. B.T., 148 AD3d at 1031; Matter of Pinsky v. Botnick, 105 AD3d at 855).Turning to the second part of the inquiry, the Family Court properly determined that visitation between the paternal grandparents and the children was in the children’s best interests. Animosity alone is insufficient to deny visitation (see Matter of Winn v. Diaz, 156 AD3d 645; Matter of Seddio v. Artura, 139 AD3d 1075, 1077). Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator’s determination that the paternal grandparents’ conduct was not the cause of the animosity (see Matter of Winn v. Diaz, 156 AD3d 645; Matter of Seddio v. Artura, 139 AD3d at 1077).Moreover, contrary to the appellants’ contention, the Family Court did not, in the order appealed from, improperly delegate its authority to determine visitation issues to the supervisor of the therapeutic visits (see Matter of Dylan Mc. [Michelle M. Mc.], 105 AD3d 1049, 1049; cf. Matter of Rogan v. Guida, 143 AD3d 830, 831; Matter of Balgley v. Cohen, 73 AD3d 1038, 1038).The appellants’ contentions related to the Family Court’s subsequent order dated March 9, 2016, are not properly before this Court.The grandparents’ remaining contention is without merit.LEVENTHAL, J.P., COHEN, MILLER and MALTESE, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.Fabiola Aristizabal, ap, v. Peter S. Kostakopoulos res — (Index No. 7110/14)Mitchell Dranow, Sea Cliff, NY, for appellant.Rebore, Thorpe & Pisarello, P.C., Farmingdale, NY (Christine M. Gibbons of counsel), for respondents.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Walker, J.), dated October 21, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On December 19, 2013, the plaintiff allegedly sustained injuries when she fell while ascending the interior staircase of the defendants’ building. In May 2014, the plaintiff commenced this action against the defendants. After discovery, the defendants moved for summary judgment dismissing the complaint, contending that the plaintiff could not identify the cause of her fall. The Supreme Court granted the motion, and the plaintiff appeals.A defendant landowner moving for summary judgment dismissing a complaint in a slip- or trip-and-fall action can meet its initial burden by demonstrating that the plaintiff did not know what caused him or her to fall (see Amster v. Kromer, 150 AD3d 804; Kudrina v. 82-04 Lefferts Tenants Corp., 110 AD3d 963, 964; Dennis v. Lakhani, 102 AD3d 651, 652). A plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation (see Kudrina v. 82-04 Lefferts Tenants Corp., 110 AD3d at 964; Dennis v. Lakhani, 102 AD3d at 652).Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff’s deposition testimony, which demonstrated that she could not identify the cause of her fall (see Amster v. Kromer, 150 AD3d 804; Kudrina v. 82-04 Lefferts Tenants Corp., 110 AD3d at 964; Kloepfer v. Aslanis, 106 AD3d 956; Dennis v. Lakhani, 102 AD3d at 652). In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.MATTER of Tishawn A. C. B. (Anonymous), ap — (Docket No. D-297-15)Geanine Towers, Brooklyn, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Eric Lee of counsel), for respondent.Appeals from (1) an order of disposition of the Family Court, Kings County (Jacqueline D. Williams, J.), dated July 28, 2016, and (2) an order of the same court dated March 8, 2017. The order of disposition adjudicated Tishawn A. C. B. a juvenile delinquent and placed him on probation for a period of 12 months. The order dated March 8, 2017, insofar as appealed from, in effect, denied the motion of Tishawn A. C. B. for an adjournment in contemplation of dismissal. The appeal from the order of disposition brings up for review an order of fact-finding of that court (Terrence J. McElrath, J.) dated December 11, 2015, which, after a hearing, found that Tishawn A. C. B. committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the third degree and sexual abuse in the second degree.ORDERED that the appeal from so much of the order of disposition as placed Tishawn A. C. B. on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements; and it is further,ORDERED that the order dated March 8, 2017, is affirmed insofar appealed from, without costs or disbursements.The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months has been rendered academic, as the period of placement has expired. However, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent has not been rendered academic, as there may be collateral consequences resulting from the adjudication of delinquency (see Matter of Kieron C., 140 AD3d 1160).In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Malik B., 151 AD3d 842; Matter of Hasan C., 59 AD3d 617), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Damien S., 124 AD3d 667). The Family Court’s credibility determinations should not be disturbed unless clearly unsupported by the record (see Matter of Brandon V., 133 AD3d 769). Upon reviewing the record here, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence.Contrary to the appellant’s contentions, under the facts of this case, the Family Court providently exercised its discretion by, in effect, denying his motion for an adjournment in contemplation of dismissal (see Matter of Kieron C., 140 AD3d 1160).The appellant’s remaining contentions are without merit.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Allstate Insurance Company, pet-res, v. Peter Deleon, ap, et al., res — (Index No. 4963/14)Mitchell Dranow, Sea Cliff, NY, for appellant.Karen L. Lawrence, Garden City, NY (Donald W. Sweeney of counsel), for petitioner-respondent.In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Peter Deleon appeals from a judgment of the Supreme Court, Nassau County (Sher, J.), entered April 15, 2016, which, after a framed-issue hearing, granted that branch of the petition which was to permanently stay arbitration.ORDERED that the judgment is affirmed, with costs.On April 6, 2013, Peter Deleon (hereinafter the appellant) was operating a vehicle on Sunrise Highway in Hempstead when he was involved in a multivehicle accident. In addition to the appellant’s vehicle, there were three other vehicles known to have been involved in the accident. According to the appellant, however, another vehicle, which he described as a “pick-up truck with a landscaping trailer attached,” initially struck his vehicle and then left the scene. Under a policy of insurance issued by the petitioner, the appellant demanded arbitration of his claim for uninsured motorist benefits for the injuries he allegedly sustained in the accident. The petitioner thereafter commenced this proceeding, inter alia, to permanently stay arbitration of the appellant’s claim. In support of the petition, the petitioner submitted, inter alia, an uncertified police accident report containing a statement by the appellant that “an unknown vehicle with a red trailer cut him off causing him to change lanes” and strike another vehicle. The Supreme Court temporarily stayed arbitration pending a framed-issue hearing to determine whether there was physical contact between the unidentified vehicle and the appellant’s vehicle. After the framed-issue hearing, the court entered a judgment granting that branch of the petition which was to permanently stay arbitration. On appeal from the judgment, the appellant contends that the petitioner was not entitled to a framed-issue hearing.“‘The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay’” (Matter of Hertz Corp. v. Holmes, 106 AD3d 1001, 1002, quoting Matter of AutoOne Ins. Co. v. Umanzor, 74 AD3d 1335, 1336). ”Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v. Waldo, 125 AD3d 864, 865). ”Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” (Matter of Hertz Corp. v. Holmes, 106 AD3d at 1003). ”Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle” (Matter of Progressive Northwestern Ins. Co. v. Scott, 123 AD3d 932, 932). ”‘The insured has the burden of establishing that the loss sustained was caused by an uninsured vehicle, namely, that physical contact occurred, that the identity of the owner and operator of the offending vehicle could not be ascertained, and that the insured’s efforts to ascertain such identity were reasonable’” (id. at 932, quoting Matter of Nova Cas. Co. v. Musco, 48 AD3d 572, 573).Here, the petitioner, by submitting the police accident report containing the appellant’s statement that his vehicle was cut off by an unknown vehicle with a red trailer, raised a triable issue of fact as to whether physical contact occurred between the appellant’s vehicle and the alleged unidentified hit-and-run vehicle (see Matter of Allstate Ins. Co. v. Aizin, 102 AD3d 679, 681; Matter of Eveready Ins. Co. v. Scott, 1 AD3d 436, 437; Matter of Midwest Mut. Ins. Co. [Roberson], 64 AD2d 985). Contrary to the appellant’s contention, the Supreme Court properly directed a framed-issue hearing to determine whether a hit-and-run vehicle was involved in the accident (see Matter of Allstate Ins. Co. v. Carraro, 130 AD3d 1021; cf. Matter of Merchants Preferred Ins. Co. v. Waldo, 125 AD3d at 865; Matter of Hertz Corp. v. Holmes, 106 AD3d at 1003; Matter of Allstate Ins. Co. v. Aizin, 102 AD3d at 681; Matter of Maryland Cas. Co. v. Piasecki, 235 AD2d 423).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.John Ehrenkranz plf, v. 58 MHR, LLC, et al., defendants third-party plf-ap, et al., def; Martin Anderson third- party def, LePatner & Associates, LLP, third-party def-res — (Index No. 4444/12)Appeal from an order of the Supreme Court, Suffolk County (Emily Pines, J.), dated May 27, 2015. The order, insofar as appealed from, granted that branch of the motion of the third-party defendant LePatner & Associates, LLP, which was pursuant to CPLR 3211(a) to dismiss the 16th cause of action in the third-party complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The underlying facts and procedural history of this case can be found in our decisions and orders in a prior appeal in this action (see Ehrenkranz v. 58 MHR, LLC, 127 AD3d 918), and two appeals in a related action (see Vivir of L I, Inc. v. Ehrenkranz, 145 AD3d 834; Vivir of L I, Inc. v. Ekrenkranz, 127 AD3d 962). Here, the third-party plaintiffs alleged in the 16th cause of action in the third-party complaint that the third-party defendant LePatner & Associates, LLP (hereinafter LePatner), a law firm, violated Judiciary Law §487 in connection with its representation of John Ehrenkranz and Andra Ehrenkranz in this action and the related action. LePatner moved, inter alia, pursuant to CPLR 3211(a) to dismiss the 16th cause of action in the third-party complaint based upon documentary evidence and for failure to state a cause of action. The Supreme Court granted that branch of the motion. The third-party plaintiffs appeal.The Supreme Court properly granted that branch of LePatner’s motion which was to dismiss the 16th cause of action in the third-party complaint, although the dismissal should have been pursuant to CPLR 3211(a)(7) and not CPLR 3211(a)(1) (see Smalls v. St. John’s Episcopal Hosp., 152 AD3d 629). Accepting the facts alleged in the third-party complaint as true, and according the third-party plaintiffs the benefit of every favorable inference (see Leon v. Martinez, 84 NY2d 83, 88; Raach v. SLSJET Mgt. Corp., 134 AD3d 792, 793), the third-party complaint failed to allege facts sufficient to find that LePatner acted “with intent to deceive the court or any party” (Judiciary Law §487; see Klein v. Rieff, 135 AD3d 910; Savitt v. Greenberg Traurig, LLP, 126 AD3d 506; Fleyshman v. Suckle & Schlesinger, PLLC, 91 AD3d 591, 592-593).The third-party plaintiffs’ remaining contentions are not properly before this Court.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.MATTER of Jason (Anonymous). Sonia O. (Anonymous), ap — (Docket No. A-118-17)Warren & Warren, P.C., Brooklyn, NY (Ira L. Eras of counsel), for appellant.Appeal from an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated December 14, 2017. The order dismissed, without prejudice, on the ground of lack of standing, the appellant’s petition pursuant to Domestic Relations Law article 7 for adoption of the subject child.ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for a determination of the petition on the merits.The petitioner commenced this proceeding to adopt her grandson, who was placed with her in foster care and freed for adoption. The SCO Family of Services, which placed the child with the petitioner, has approved the adoption. The petitioner has been separated from her spouse since June 2016, and a separation agreement was executed by the petitioner and her spouse and duly acknowledged on May 12, 2017. The Family Court determined that the separation agreement was insufficient to comply with the requirements of Domestic Relations Law §110 because it was merely an agreement by the parties to live separately and apart and did not contain any substantive provisions settling marital issues. The court thus concluded that the petitioner lacked standing under Domestic Relations Law §110 to adopt without her spouse and dismissed the petition without prejudice based on lack of standing. The petitioner appeals.Domestic Relations Law §110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child (see Matter of Jacob, 86 NY2d 651, 657-658). As relevant here, an “adult married person who is living separate and apart from his or her spouse… pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded… may adopt another person” without his or her spouse (Domestic Relations Law §110).A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance (see Domestic Relations Law §236[B][3]). However, “[t]he agreement is ‘simply intended as evidence of the authenticity and reality of the separation’” (Christian v. Christian, 42 NY2d 67, 70, quoting Gleason v. Gleason, 26 NY2d 28, 35). Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally… may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law §170(6) (Christian v. Christian, 42 NY2d at 70).Here, the separation agreement evidences the parties’ agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded (see Domestic Relations Law §110; Matisoff v. Dobi, 90 NY2d 127). Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement (see Domestic Relations Law §110; Christian v. Christian, 42 NY2d at 70). Accordingly, the Family Court erred in determining that the petitioner lacked standing to adopt without her spouse and in dismissing the petition without prejudice on that basis.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.PEOPLE, etc., res, v. Ray Ross, ap — (Ind. No. 1050/15)Bruce R. Bekritsky, Mineola, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Kevin C. King and John B. Latella of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered June 30, 2016, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention, in effect, that the evidence was legally insufficient to support his convictions because the complainant’s testimony was not corroborated is unpreserved for appellate review (see CPL 470.05[2]). In any event, it is without merit. Contrary to the defendant’s contention, corroboration of the complainant’s sworn testimony was not required under Penal Law §§130.16 and 260.11 because the complainant’s lack of consent did not result from incapacity to consent due to “mental defect or mental incapacity” (Penal Law §§130.16, 260.11; see People v. Pumarejo, 222 AD2d 616; see also Penal Law §60.20). Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilty was not against the weight of the evidence (see CPL 470.15[5]; People v. Romero, 7 NY3d 633).Contrary to the defendant’s contention, the record demonstrates that the People fulfilled their discovery obligations under CPL 240.45(1)(b) and (c) by disclosing to the defense any known judgments of conviction or pending criminal actions related to the prosecution’s witnesses (see CPL 240.45[1][b], [c]; People v. Graham, 289 AD2d 417, 418).The defendant was not deprived of the effective assistance of counsel. The record as a whole demonstrates that counsel provided the defendant with meaningful representation (see People v. Caban, 5 NY3d 143; People v. Benevento, 91 NY2d 708; People v. Baldi, 54 NY2d 137).The defendant’s remaining contentions are without merit.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Miguel Rodriguez, ap — (Ind. No. 4543/15)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin P. Murphy, J.), rendered February 8, 2016, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.MATTER of Darian Wayne Cook, Sr., ap, v. Karen D. Charles, res — (Docket No. F-4857-04/16E)Darian Wayne Cook, Sr., appellant pro se.Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated January 9, 2017. The order, insofar as appealed from, denied the father’s objections to so much of an order of that court (Gladys E. Braxton, S.M.) entered November 3, 2016, as, after a hearing, denied that branch of the father’s petition which was for a reduction of his child support arrears.ORDERED that the order dated January 9, 2017, is affirmed insofar as appealed from, without costs or disbursements.The mother and the father in this child support proceeding have one child, who was born in 2002. The father was incarcerated from January 2003 to March 2016. Pursuant to an order dated January 13, 2016, the father was required to pay $60 per week in basic child support and $38,460 in child support arrears. On March 23, 2016, the father filed a petition, inter alia, for a reduction of the child support arrears, which had accrued while he was incarcerated. After a hearing, the Support Magistrate denied the father’s petition. The father filed objections to the Support Magistrate’s order. In an order dated January 9, 2017, the Family Court denied the objections. The father appeals.On appeal, the father’s sole contention is that he was entitled to a $500 limit on the accrual of total unpaid child support arrears pursuant to Family Court Act §413(1)(g). However, this contention is not properly before this Court, as it was not raised in the father’s objections to the Support Magistrate’s order (see Matter of Dailey v. Govan, 136 AD3d 1029, 1031; Matter of Worner v. Gavin, 134 AD3d 1043).SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Cohen, Maltese and Barros, JJ.MATTER of Jennifer Elkins, etc., appellant- res, v. Aaron Mizrahi, res-res — (Docket No. F-6806-15)Kevin E. Rockitter, P.C., Woodbury, NY, for appellant-respondent.Appeal and cross appeal from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated May 8, 2017. The order, insofar as appealed from, denied the mother’s objection to so much of an order of that court (Lisa M. Williams, S.M.) dated September 16, 2016, as, after a hearing, awarded the father a credit of $28,614.54 against his child support obligation.ORDERED that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,ORDERED that the order dated May 8, 2017, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the mother’s objection to so much of the order dated September 16, 2016, as awarded the father a credit of $28,614.54 against his child support obligation is granted, and so much of the order dated September 16, 2016, as awarded the father a credit of $28,614.54 against his child support obligation is vacated.The parties, who have three children together, were divorced in March 2008. In 2014, the parties entered into a stipulation whereby they agreed, inter alia, that the father would pay the mother a lump sum of $50,000 in full satisfaction of his accrued child support arrears, which, at that time, exceeded $70,000, and that the father’s child support obligation would be terminated going forward. The mother received the $50,000 payment on November 21, 2014. In an order dated January 29, 2015, the Family Court, giving effect to the stipulation, terminated, upon the parties’ consent, the father’s child support obligation with respect to the parties’ three children, and directed that the father’s remaining child support arrears of $21,385.46, plus current support of $917.30, be deemed satisfied.In July 2015, the mother filed a petition for support with respect to the parties’ two youngest children, alleging, among other things, that the stipulation was void and unenforceable to the extent that it purported to waive future child support. The Family Court agreed with the mother that her agreement to waive future child support was void as against public policy. Insofar as relevant to this appeal, the Support Magistrate, in an order of support dated September 16, 2016, made after a fact-finding hearing, determined that the father should be awarded a credit of $28,614.54 against his child support obligation, calculated by crediting his previous $50,000 payment and deducting therefrom his prior child support arrears of $21,385.46. The mother objected, inter alia, to the Support Magistrate’s calculation, contending that the father was not entitled to any child support credit, since his prior payment of $50,000 was in satisfaction of $71,385.46 in arrears. In an order dated May 8, 2017, the Family Court denied the mother’s objections. The mother appeals.The record demonstrates that the Support Magistrate erred in awarding the father a credit of $28,614.54 against his child support obligation. Contrary to the Support Magistrate’s determination, the father’s previous payment of $50,000 did not result in an overpayment of child support; to the contrary, the payment discharged $71,385.46 in arrears. Thus, the father is not entitled to any credit with respect to the child support obligation presently at issue, and the Family Court erred in denying the mother’s objection to the $28,614.54 credit (see Family Ct Act §440; cf. Matter of Erickson v. Schroth, 245 AD2d 289). Accordingly, we reverse the order dated May 8, 2017, insofar as appealed from and modify the September 16, 2016, order accordingly.CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.Gary Gani, ap, v. Avenue R Sephardic Congregation, res — (Index No. 5769/13)Michael N. David, New York, NY, for appellant.Molod Spitz & DeSantis, P.C., New York, NY (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for respondent.Appeal from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated October 14, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On January 27, 2013, at approximately 9:00 a.m., the plaintiff allegedly fell down an interior staircase in the defendant’s synagogue. The plaintiff commenced this negligence action against the defendant alleging personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion. The plaintiff appeals.A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., 87 NY2d 871, 872; Basso v. Miller, 40 NY2d 233, 241; Kyte v. Mid-Hudson Wendico, 131 AD3d 452). ”In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” (Steed v. MVA Enters., LLC, 136 AD3d 793, 794 [internal quotation marks omitted]). Thus, in a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kyte v. Mid-Hudson Wendico, 131 AD3d at 453; Pampalone v. FBE Van Dam, LLC, 123 AD3d 988, 989). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837-838).A defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident (see McRae v. Venuto, 136 AD3d 765, 766; Montemarano v. Sodexo, Inc., 121 AD3d 1059, 1060; Izaguirre v. New York City Tr. Auth., 106 AD3d 878, 878). A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation (see Palahnuk v. Tiro Rest. Corp., 116 AD3d 748; DeForte v. Greenwood Cemetery, 114 AD3d 718; Deputron v. A & J Tours, Inc., 106 AD3d 944, 945).Here, based on the deposition testimony of the plaintiff, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of his fall (see Priola v. Herrill Bowling Corp., 150 AD3d 1163, 1164; Califano v. Maple Lanes, 91 AD3d 896, 897-898; McFadden v. 726 Liberty Corp., 89 AD3d 1067, 1068; Capasso v. Capasso, 84 AD3d 997, 998; Patrick v. Costco Wholesale Corp., 77 AD3d 810, 811). Furthermore, the defendant also established, prima facie, that it did not create a dangerous or defective condition with respect to the subject staircase, and did not have actual or constructive notice of the condition claimed by the plaintiff for a sufficient length of time to discover and remedy it (see Gordon v. American Museum of Natural History, 67 NY2d at 837). In opposition, the plaintiff failed to raise a triable issue of fact as to either the cause of the accident or whether the defendant created or had notice of any dangerous or defective condition with respect to the subject staircase (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).In light of our determination, the defendant’s remaining contention need not be addressed.Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.HSBC Mortgage Corporation (USA), res, v. Frieda Hollender, appellant def — (Index No. 21760/09)Solomon Rosengarten, Brooklyn, NY, for appellant.Rosicki, Rosicki & Associates, P.C., Plainview, NY (Jessica L. Bookstaver of counsel), for respondent.Appeal from an order of the Supreme Court, Kings County (Robin S. Garson, J.), dated December 16, 2015. The order, insofar as appealed from, denied that branch of the motion of the defendant Frieda Hollender which was, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of that court dated March 6, 2015, entered upon her default in answering or appearing, and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this mortgage foreclosure action in August 2009 against the defendant Freida Hollender, among others. According to the affidavit of the plaintiff’s process server, Hollender was served with, inter alia, a copy of the summons and complaint at her home pursuant to CPLR 308(4). It is not disputed that Hollender defaulted in answering or appearing. A judgment of foreclosure and sale dated March 6, 2015, was entered in favor of the plaintiff. Thereafter, Hollender moved, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The Supreme Court denied the motion, and Hollender appeals.Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, 896-897). CPLR 308 requires that service be attempted by personal delivery of the summons “to the person to be served” (CPLR 308[1]), or by delivery “to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode” (CPLR 308[2]). Service pursuant to CPLR 308(4), commonly known as affix and mail service, may be used only where service under CPLR 308(1) or (2) cannot be made with “due diligence” (CPLR 308[4]; see Feinstein v. Bergner, 48 NY2d 234, 238-239; O’Connell v. Post, 27 AD3d 630, 631; Lemberger v. Kahn, 18 AD3d 447). Since CPLR 308(4) does not define “due diligence,” it has been interpreted and applied on a case-by-case basis (see Barnes v. City of New York, 51 NY2d 906, 907; Estate of Waterman v. Jones, 46 AD3d 63, 66). The due diligence requirement may be met with “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” (Estate of Waterman v. Jones, 46 AD3d at 66; see Wells Fargo Bank NA v. Besemer, 131 AD3d 1047, 1048).Here, the process server’s affidavit, which reflects that he made three attempts to effect personal service at Hollender’s residence at different times on different days when Hollender could reasonably be expected to be home, constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Deutsche Bank Natl. Trust Co. v. White, 110 AD3d 759, 760; Wells Fargo Bank, N.A. v. Cherot, 102 AD3d 768; JPMorgan Chase Bank, N.A. v. Szajna, 72 AD3d 902, 903), and the affirmation of Hollender’s counsel, submitted in support of her motion, was insufficient to rebut the presumption of proper service or to warrant a hearing (see Citimortgage, Inc. v. Bustamante, 107 AD3d 752, 753; US Natl. Bank Assn. v. Melton, 90 AD3d 742, 743). Contrary to Hollender’s contention, under the circumstances here, the plaintiff was not required to attempt to serve her at her workplace (see Deutsche Bank Natl. Trust Co. v. White, 110 AD3d at 760; JPMorgan Chase Bank, N.A. v. Szajna, 72 AD3d at 903).Accordingly, the Supreme Court properly denied that branch of Hollender’s motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.MATTER of Piper S. (Anonymous). Westchester County Department of Social Services, res, v. Victoria S. (Anonymous) ap — (Docket Nos. N-16227-15, N-16229-15)William Martin, White Plains, NY, for appellant Victoria S.Stephen Kolnik, Yonkers, NY, for appellant Santiago S., and appellant Santiago S. pro se.John M. Nonna, County Attorney, White Plains, NY (James Castro-Blanco and Linda M. Trentacoste of counsel), for respondent.Jo-Ann Cambareri, White Plains, NY, attorney for the child.Appeals from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated April 1, 2016. The order granted the petitioner’s application pursuant to Family Court Act §1027 to temporarily remove the subject child from the parents’ custody and place the child in the custody of the paternal grandmother pending the outcome of the neglect proceeding. Assigned counsel for the father has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the father.ORDERED that the appeals are dismissed as academic, without costs or disbursements; and it is further,ORDERED that counsel’s application to be relieved of the assignment to prosecute the appeal by the father is denied as academic.The order dated April 1, 2016, which granted the petitioner’s application pursuant to Family Court Act §1027 to temporarily remove the subject child from the parents’ custody and place the child in the custody of the paternal grandmother, has been superseded by a subsequent order of fact-finding and disposition entered September 1, 2017. Accordingly, the appeals by the mother and the father from the order dated April 1, 2016, must be dismissed as academic (see Matter of Bruce P., 138 AD3d 864, 864; Matter of Julian S. [Patricia L.], 121 AD3d 796, 797-798; Matter of Anthony C. [Juan C.], 99 AD3d 798, 799; Matter of Araynnah B. [Moshammett R.], 71 AD3d 881, 881).We therefore deny, as academic, the application of the father’s counsel to be relieved of the assignment to prosecute the father’s appeal from the order dated April 1, 2016 (see Matter of Kaci C. [John C.], 136 AD3d 674, 674-675; Matter of McMillian v. Rizzo, 65 AD3d 689, 689).AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.MATTER of Piper S. (Anonymous). Westchester County Department of Social Services, res, v. Victoria S. (Anonymous) ap — (Docket Nos. N-16227-15/16D, N-16229-15/16D)Jo-Ann Cambareri, White Plains, NY, attorney for the child.Appeals from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated June 22, 2016. The order, insofar as appealed from, denied that branch of the mother’s application which was to stay enforcement of an order of that court dated April 1, 2016. Assigned counsel for the father has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the father.ORDERED that the appeals are dismissed as academic, without costs or disbursements; and it is further,ORDERED that counsel’s application to be relieved of the assignment to prosecute the appeal by the father is denied as academic.The order dated June 22, 2016, which, inter alia, denied that branch of the mother’s application which was to stay enforcement of an order dated April 1, 2016, has been superseded by a subsequent order of fact-finding and disposition entered September 1, 2017. Accordingly, the appeals by the mother and the father from the order dated June 22, 2016, must be dismissed as academic (see Matter of Bruce P., 138 AD3d 864, 864; Matter of Julian S. [Patricia L.], 121 AD3d 796, 797-798; Matter of Anthony C. [Juan C.], 99 AD3d 798, 799; Matter of Araynnah B. [Moshammett R.], 71 AD3d 881, 881).We therefore deny, as academic, the application of the father’s counsel to be relieved of the assignment to prosecute the father’s appeal from the order dated June 22, 2016 (see Matter of Kaci C. [John C.], 136 AD3d 674, 674-675; Matter of McMillian v. Rizzo, 65 AD3d 689, 689).AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.MATTER of Piper S. (Anonymous). Westchester County Department of Social Services, pet-res, v. Santiago S. (Anonymous), appellant res — (Proceeding No. 1)MATTER of Minerva S. (Anonymous), petitioner- res, v. Santiago S. (Anonymous), ap, et al., res — (Proceeding No. 2) (Docket Nos. N-16227-15, N-16229-15, V-7920-15, V-11795-15, V-11797-15, V-236-16, V-238-16)Appeal from an order of the Family Court, Westchester County (Arlene E. Katz, J.), dated September 23, 2016. The order, insofar as appealed from, directed the father to provide the health insurance card for the subject child to the Westchester County Department of Social Services.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The Westchester County Department of Social Services (hereinafter DSS) commenced this neglect proceeding pursuant to Family Court Act article 10 against the subject child’s parents. Pursuant to an order dated April 1, 2016, the child was temporarily removed from the parents’ custody and placed in the custody of the paternal grandmother. During a fact-finding hearing, the attorney for the paternal grandmother requested that the Family Court direct the father to provide the child’s health insurance card. The court granted that request, and in an order dated September 23, 2016, the court directed the father to provide the child’s health insurance card to DSS within 48 hours. The father appeals from that order.Contrary to the father’s contention, the Family Court did not err in directing him to provide the child’s health insurance card to DSS so that it could be made available to the paternal grandmother, who had temporary custody of the child pending the outcome of the neglect proceeding. To the extent that the father is raising issues on this appeal which relate to a finding of contempt made by the court on November 4, 2016, those issues were not addressed in the order appealed from and, accordingly, those issues are not properly before this Court (see Matter of Newman v. Newman, 72 AD3d 973, 973).AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Stephen Komara, ap — (Ind. No. 975-14)Scott Lockwood, North Babylon, NY, for appellant.Patricia Gunning, Delmar, NY (Robin A. Forshaw and Spalding Powers Warner of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (William J. Condon, J.), rendered February 22, 2016, convicting him of endangering the welfare of an incompetent or physically disabled person in the second degree (two counts), after a nonjury trial, and imposing sentence.ORDERED that the judgment is affirmed.The defendant, who worked as a caregiver for disabled adults in a group home, was convicted of two counts of endangering the welfare of an incompetent or physically disabled person in the second degree following an incident in which he failed to intervene to stop one resident from physically assaulting another resident.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5]).The defendant’s contention that his convictions could not be based on the testimony of his coworker, who was convicted of endangering the welfare of an incompetent or physically disabled person in the first degree stemming from the same incident, because the coworker was an accomplice and his testimony was not sufficiently corroborated, is unpreserved for appellate review (see CPL 470.05[2]; People v. Gray, 86 NY2d 10). In any event, the coworker’s testimony was sufficiently corroborated by video evidence that “‘tend[ed] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the [trier of fact] that the accomplice [was] telling the truth’” (People v. Reome, 15 NY3d 188, 192, quoting People v. Dixon, 231 NY 111, 116; see CPL 60.22[1]).The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Wells Fargo Bank, N.A., etc., res, v. Hyun J. Choo, appellant def — (Index No. 17073/09)Harvey Sorid, Uniondale, NY, for appellant.Shapiro, DiCaro & Barak, LLC (McGlinchey Stafford, New York, NY [Brian S. McGrath and Fincey John], of counsel), for respondent.Appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated June 10, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendant Hyun J. Choo which was to vacate an order of reference and a judgment of foreclosure and sale, entered upon his default in appearing or answering the complaint.ORDERED that the order dated June 10, 2016, is affirmed insofar as appealed from, with costs.In June 2009, the plaintiff commenced this action against the defendant Hyun J. Choo, among others, to foreclose a mortgage. Choo failed to appear or answer the complaint, and the Supreme Court granted the plaintiff’s motions for an order of reference and for a judgment of foreclosure and sale. Subsequently, Choo moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The Supreme Court denied the motion, and Choo appeals.“Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68; see CPLR 5015[a]; HSBC Bank USA v. Josephs-Byrd, 148 AD3d 788; 40 BP, LLC v. Katatikarn, 147 AD3d 710). ”However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated, and a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” (40 BP, LLC v. Katatikarn, 147 AD3d at 711, citing Woodson v. Mendon Leasing Corp., 100 NY2d at 68; see Hudson City Sav. Bank v. Cohen, 120 AD3d 1304, 1305). Here, Choo did not move pursuant to CPLR 5015(a); rather, he expressly moved to vacate the order of foreclosure and judgment of foreclosure and sale “in the interests of justice.”Although the Supreme Court retains “inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice” (Galasso, Langione & Botter, LLP v. Liotti, 81 AD3d 884, 885; see Ladd v. Stevenson, 112 NY 325, 332; Katz v. Marra, 74 AD3d 888, 890), “[a] court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. v. Coletta, 153 AD3d 757; HSBC Bank USA v. Josephs-Byrd, 148 AD3d at 790; Long Is. Light. Co. v. Century Indem. Co., 52 AD3d 383, 384; Quinn v. Guerra, 26 AD3d 872, 873). Here, Choo failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would warrant vacating the order of reference or the judgment of foreclosure and sale in the interests of substantial justice (see Wells Fargo Bank Minn., N.A. v. Coletta, 150 AD3d at 758; HSBC Bank USA v. Josephs-Byrd, 148 AD3d at 790; HSBC Mtge. Servs. v. Talip, 111 AD3d 889, 890; cf. Nationscredit Fin. Servs. Corp. v. Atherley, 91 AD3d 922, 922).In light of our determination, we need not reach the parties’ remaining contentions.Accordingly, the Supreme Court properly denied that branch of Choo’s motion which was to vacate the order of reference and the judgment of foreclosure and sale.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.Scott E. Meyer ap, v. Nikki K. Panagiotidis res — (Index No. 66774/14)Bello & Larkin, Hauppauge, NY (John C. Meszaros of counsel), for respondents.In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated August 30, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Scott E. Meyer did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident.ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.The defendants met their prima facie burden of showing that the plaintiff Scott E. Meyer (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the lumbar region of the injured plaintiff’s spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Staff v. Yshua, 59 AD3d 614).In opposition, however, the plaintiffs raised a triable issue of fact as to whether the injured plaintiff sustained a serious injury to the lumbar region of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law §5102(d) (see Perl v. Meher, 18 NY3d 208, 218-219).Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.MATTER of South Central Plaza, Inc., ap, v. Village of Spring Valley res — (Index Nos. 31766/12, 32048/13, 31668/14)Mark Goodfriend, Suffern, NY (Jared M. Viders of counsel), for appellant.Feerick Lynch MacCartney & Nugent, PLLC, South Nyack, NY (Alak Shah and Dennis Lynch of counsel), for respondents.In three related tax certiorari proceedings pursuant to Real Property Tax Law article 7 to challenge the real property tax assessments for the subject property for the years 2012, 2013, and 2014, respectively, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated April 6, 2016, as granted the respondents’ motion to compel certain discovery pursuant to CPLR 408 and denied its cross motion, inter alia, to preclude the respondents from filing a trial appraisal.ORDERED that the order is affirmed insofar as appealed from, with costs.The petitioner commenced these proceedings to review real property tax assessments for the years 2012, 2013, and 2014. The respondents, the Village of Spring Valley and its Assessor and Board of Assessment Review, moved pursuant to CPLR 408 to compel production of certain documents requested by their expert appraiser to assist in preparation of the trial appraisal. The petitioner opposed the motion, arguing, inter alia, that the respondents were precluded from obtaining the requested materials by their failure to timely request an audit pursuant to 22 NYCRR 202.59, and cross-moved, among other things, to preclude the respondents from filing a trial appraisal. The Supreme Court granted the respondents’ motion and denied the petitioner’s cross motion. The petitioner appeals.Although 22 NYCRR 202.59 expressly directs the parties in a tax certiorari proceeding pursuant to RPTL article 7 to exchange certain documents and information, CPLR 408 provides the court with broad discretion in addressing discovery disputes not within the ambit of 22 NYCRR 202.59 and directing the disclosure of material and necessary information (see Matter of Greens at Washingtonville, Ltd. v. Town of Blooming Grove, 98 AD3d 1118, 1119; Matter of Wendy’s Rests., LLC v. Assessor, Town of Henrietta, 74 AD3d 1916, 1917; Matter of American Cyanamid Co. [Lederle Labs] v. Board of Assessors, 255 AD2d 440). Contrary to the petitioner’s contentions, the respondents’ failure to timely request an audit (see 22 NYCRR 202.59[c]) does not preclude the respondents from seeking information material and necessary to prepare trial appraisals (see 22 NYCRR 202.1[d]; 202.59[e]; Matter of Niagara Mohawk Power Corp. v. City of Saratoga Springs Assessor, 2 AD3d 953, 954).Here, the Supreme Court properly determined that the requested materials were material and necessary to the respondents’ trial preparation and should be produced (see CPLR 3101[a]; 408; 22 NYCRR 202.59; Matter of Greens at Washingtonville, Ltd. v. Town of Blooming Grove, 98 AD3d at 1119; Matter of Wendy’s Rests., LLC v. Assessor, Town of Henrietta, 74 AD3d at 1917).The petitioner’s remaining contentions are without merit or need not be reached in light of our determination.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.MATTER of Jenny Almaguer, res, v. Severo Almaguer, ap — (Docket No. O-1641-17)Appeal from an order of protection of the Family Court, Kings County (Javier E. Vargas, J.), dated May 3, 2017. The order of protection, upon a finding that Severo Almaguer committed the family offense of harassment in the second degree, made after a fact-finding hearing, inter alia, excluded him from the family residence until and including May 2, 2019.ORDERED that the order of protection is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a new hearing and determination; and it is further,ORDERED that the temporary order of protection dated April 12, 2017, is reinstated pending the new determination.The parties are married, have lived together for over 20 years, and are the parents of three children. The wife commenced this proceeding by filing a petition in January of 2017, alleging, inter alia, that the husband committed the family offense of harassment in the second degree by threatening to kill her if she filed for divorce.At the fact-finding hearing, the wife had the burden of proving by a fair preponderance of the evidence that the husband committed the family offense of harassment in the second degree (Penal Law §240.26) as alleged in the petition (see Family Ct Act §832; Matter of Stanislaus v. Stanislaus, 155 AD3d 963). In making its determination, the Family Court erred in considering and relying upon statements made by the husband during a preliminary conference and in proceedings prior to the hearing. Statements made during a preliminary conference are not admissible at a fact-finding hearing (see Family Ct Act §824). Moreover, the court may not rely upon evidence of an incident not charged in the petition in sustaining a charge of harassment (see Matter of Czop v. Czop, 21 AD3d 958).Contrary to the wife’s contention, the error in considering this evidence was not harmless (cf. Matter of Taylor v. Taylor, 62 AD3d 1015). Accordingly, we remit the matter to the Family Court, Kings County, for a new hearing on the petition and a new determination thereafter (see Matter of Czop v. Czop, 21 AD3d 958; Matter of Devon B., 1 AD3d 432).DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Dillon, Cohen and Iannacci, JJ.MATTER of Caroline Santman, res, v. Heracles Schonfeldt, ap — (Docket No. F-6053-16)Appeal from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated March 13, 2017. The order denied the father’s objections to so much of an order of the same court (Nadine J. Satterthwaite, S.M.), dated August 18, 2016, as, after a hearing, granted that branch of the mother’s petition which was for child support and child care expenses.ORDERED that the order dated March 13, 2017, is affirmed, without costs or disbursements.The parties are the separated parents of two children. A hearing was held on the mother’s petition for child support, after which the Family Court ordered the father to pay the mother basic child support in the sum of $2,553 per month, plus child care expenses in the sum of $1,398 per month.The father’s objection to the amount of basic child support was properly denied. In determining the amount of child support, a court must (1) calculate the amount of combined parental income, (2) multiply that amount “up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law by the appropriate child support percentage” (Family Ct Act §413[1][c][2]; hereinafter the statutory cap) by 25 percent for two children (see Family Ct Act §413[1][b][3][ii]), and (3) allocate the resulting amount between the parents according to their respective shares of the combined income (see Family Ct Act §413[1][c]; Matter of Cassano v. Cassano, 85 NY2d 649, 654). When the parties’ combined income is more than the statutory cap, the court has the discretion to cap the support obligation at an amount based on the statutory cap or order child support above the statutory cap, based on the factors set forth in Family Court Act §413(1)(f) and/or the child support percentage set forth in Family Court Act §413(1)(c)(3) (see Matter of Cassano v. Cassano, 85 NY2d at 654).Here, the record does not support the father’s contentions that the Family Court “repeatedly pressed” the father, who appeared pro se, to agree to pay child support above $143,000, the statutory cap at the time. The father further contends that the court never articulated the basis for its calculations of child support above the statutory cap (see Matter of Cassano v. Cassano, 85 NY2d at 655; Matter of Keith v. Lawrence, 113 AD3d 615; Levesque v. Levesque, 73 AD3d 990). On the contrary, the court indicated that this determination was based on the parties’ agreement to waive the statutory cap based on the standard of living the children would have enjoyed had the household remained intact. Furthermore, the court had before it sufficient financial details of both parties on which to base its determination. The father’s objection to the amount of basic child support was therefore properly denied.The father’s objection to the amount of child care expenses also was properly denied. Child care expenses may be incurred in order to allow the mother to work, and those expenses must be reasonable (see Family Ct Act §413[1][c][4]; Matter of Gina P. v. Stephen S., 33 AD3d 412). Here, the father objects in particular to paying 50 percent of the $650 weekly expense for a full-time nanny for the children. However, the father acknowledged at the hearing that he wants the children to keep the nanny, because the nanny takes care of the children and cooks and cleans for them, and that he also derives a benefit from the nanny because she drives the children to the father’s house for visits. Moreover, the child care expenses awarded are reasonable. Therefore, the father’s objection to the child care expenses was properly denied.MASTRO, J.P., DILLON, COHEN and IANNACCI, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Kenneth Lowman, ap — (Ind. No. 15-01039)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered June 29, 2016, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Erwin Jackson, ap — (Ind. No. 2826/05)Appeal by the defendant from an amended order of restitution of the Supreme Court, Nassau County (Jerald S. Carter, J.), dated October 11, 2011.ORDERED that the appeal is dismissed.This appeal must be dismissed. ”The right to appeal in a criminal action is purely statutory” (People v. Taylor, 99 AD2d 820; see People v. Santos, 64 NY2d 702, 704). The Criminal Procedure Law enumerate the judgments, sentences, and orders from which a defendant may appeal as of right or by permission (see CPL 450.10; 450.15; People v. Jackson, 152 AD3d 796; People v. Morse, 148 AD3d 611; People v. Taylor, 99 AD2d 820; People v. Fricchione, 43 AD3d 410, 411). The amended order of restitution at issue is not one of these enumerated papers, and accordingly, this Court is without jurisdiction to hear this appeal (see People v. Morse, 148 AD3d at 611; People v. Fricchione, 43 AD3d at 411).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Sgroi and Cohen, JJ.PEOPLE, etc., res, v. Nikolaos Kotsopoulos, ap — (Ind. No. 1057/02)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 23, 2005 (People v. Kotsopoulos, 18 AD3d 781), affirming a judgment of the County Court, Nassau County, rendered June 19, 2003.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.By Dillon, J.P.; Sgroi, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Roger Woods, ap — (Ind. No. 5906/04)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated February 3, 2009 (People v. Woods, 59 AD3d 468), affirming a judgment of the Supreme Court, Kings County, rendered October 18, 2005.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., SGROI, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Edward Roubeni ap, v. Dechert, LLP, et al., res — (Index No. 606181/14)Appeal from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered June 30, 2015. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.ORDERED that the order is affirmed insofar as appealed from, with costs.In September 2005, the defendant Dechert, LLP (hereinafter Dechert), was retained to provide legal services in connection with a bankruptcy proceeding, which was marked “closed” on October 13, 2006. In November 2014, the plaintiffs commenced this action to recover damages for legal malpractice against Dechert and one of its attorneys. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order entered June 30, 2015, the Supreme Court, among other things, granted that branch of the defendants’ motion. The plaintiffs appeal.“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789; see Stewart v. GDC Tower at Greystone, 138 AD3d 729, 729-730). ”An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed” (3rd & 6th, LLC v. Berg, 149 AD3d 794, 795; see CPLR 214[6]; McCoy v. Feinman, 99 NY2d 295). ”A cause of action for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Town of Wallkill v. Rosenstein, 40 AD3d 972, 973). ”‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957). ”For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney’” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 AD2d 505, 506).Here, the defendants satisfied their initial burden by demonstrating that this legal malpractice action accrued, at the latest, when the bankruptcy proceeding was terminated in October 2006, which was more than three years before the commencement of this action (see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789; Tsafatinos v. Law Off. of Sanford F. Young, P.C., 121 AD3d 969, 969). In opposition, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations (see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1087).Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Yolanda O. Monje, ap, v. Maria G. Guaraca, et al., res — (Index No. 5460/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Livote, J.), entered October 20, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.The plaintiff allegedly was injured when she slipped and fell on ice on the landing of the front exterior steps of the defendants’ house in Queens. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, contending that they neither created the alleged ice condition nor had actual or constructive notice of it. The Supreme Court granted the motion, and the plaintiff appeals.The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they neither created the alleged ice condition nor had actual or constructive notice of it (see Hall v. Staples the Off. Superstore E., Inc., 135 AD3d 706, 706; Cuillo v. Fairfield Prop. Servs., L.P., 112 AD3d 777, 778). In opposition, however, the plaintiff submitted certified climatological data and the deposition testimony of the nonparty witness Fredy Calle, which raised triable issues of fact as to what the weather conditions were like preceding the accident, whether ice was present on the landing at the time of the accident, how long the ice may have been present, and whether the defendants had notice of the alleged ice condition that proximately caused the plaintiff to fall (see Ross v. Half Hollow Hills Cent. Sch. Dist., 153 AD3d 745, 746-747; Castillo v. Silvercrest, 134 AD3d 977, 977-978; Flores v. BAJ Holding Corp., 94 AD3d 945, 946).Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Board of Managers of Garden North Condominium, et al., res, v. 132-29 Park Tower, LLC def, Vincenzo Oppedisano, ap — (Index No. 12316/10)Appeal from an order of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), dated December 24, 2015. The order, insofar as appealed from, denied that branch of the motion of the defendant Vincenzo Oppedisano which was for summary judgment dismissing the complaint insofar as asserted against him.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiffs, which are the Board of Managers of Garden North Condominium and six unit owners, commenced this action to recover damages for injury to property allegedly caused by the defendants during a demolition and construction project on lots adjoining the plaintiffs’ property. The plaintiffs alleged, among other things, that the defendants Vincenzo Oppedisano and Sano Construction Corp. were general contractors on the subject project, that the defendants failed to exercise reasonable care in performing their work, and that their negligence caused damage to the plaintiffs’ property. Oppedisano moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him, contending that he was not a general contractor on the project. The Supreme Court denied that branch of Oppedisano’s motion, concluding that a triable issue of fact existed as to whether Oppedisano was the general contractor on the project. Oppedisano appeals.The Supreme Court properly denied that branch of Oppedisano’s motion which was for summary judgment dismissing the complaint insofar as asserted against him. Contrary to Oppedisano’s contention, whether he is personally liable in this case does not depend on whether he was a general contractor on the subject project. Even if he was not a general contractor on the project, Oppedisano may be liable for his own negligent acts while engaging in demolition work on the project on behalf of Sano Construction Corp., of which he is the president and only shareholder (see Orlando v. New York Homes By J & J Corp., 128 AD3d 784, 785). Because Oppedisano submitted no evidence demonstrating that he was not negligent in performing the demolition work, or that any such negligence did not cause the plaintiffs’ property damage, he did not establish his prima facie entitlement to judgment as a matter of law (see Stukas v. Streiter, 83 AD3d 18, 23; cf. Slonecki v. Damm, 122 AD3d 609, 610; Holy Name of Jesus R.C. Church v. New York City Tr. Auth., 28 AD3d 520, 520-521).Accordingly, the Supreme Court properly denied that branch of Oppedisano’s motion which was for summary judgment dismissing the complaint insofar as asserted against him, regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.PEOPLE, res, v. Julio Perdomo, ap — Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated September 20, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The defendant was convicted, upon his plea of guilty, of attempted rape in the first degree. The victim was a child under the age of 13 years. In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the defendant’s score on the risk assessment instrument was within the range for a presumptive designation as a level two sex offender. However, the People successfully requested an upward departure from the defendant’s presumptive risk level, and the defendant appeals.An upward departure is permitted only if the court concludes that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the SORA Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v. Gillotti, 23 NY3d 841, 861). After such a factor is identified, and after the facts supporting the existence of the factor have been proved by clear and convincing evidence, the court must then “exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an… under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (People v. Gillotti, 23 NY3d at 861).Here, contrary to the defendant’s contention, the County Court properly determined that the People presented clear and convincing evidence in the form of reliable hearsay (see e.g. People v. Sincerbeaux, 27 NY3d 683; People v. Mingo, 12 NY3d 563), proving the existence of aggravating factors not adequately taken into account by the Guidelines, namely, that the defendant engaged in sexual misconduct with two additional children (see People v. Ziliox, 145 AD3d 925; People v. DeJesus, 117 AD3d 1017, 1018). Accordingly, the court providently exercised its discretion in granting the People’s application for an upward departure and properly designated the defendant a level three sex offender.RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Clarimundo Mourato, ap, v. Suffolk County Water Authority, res — (Index No. 21142/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated September 29, 2016, which granted the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.ORDERED that the order is affirmed, with costs.Contrary to the plaintiff’s contention, the statute of limitations was not tolled during the period between the defendant’s demand for a hearing pursuant to General Municipal Law §50-h and that hearing (see Baez v. New York City Health & Hosps. Corp., 80 NY2d 571, 577; Mayayev v. Metropolitan Transp. Auth. Bus, 74 AD3d 910, 911; Mignott v. New York City Health & Hosps. Corp., 250 AD2d 165, 171). Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Brooklyn View, ap, v. PRP, LLC, doing business as 18th Ave. Mini Market res — (Index No. 502338/14)In an action, inter alia, for a judgment declaring that the defendant New York Central Mutual Fire Insurance Co. is obligated to defend and indemnify the plaintiff in an underlying personal injury action entitled Nazeh v. PRP, LLC, pending in the Supreme Court, Kings County, under Index No. 502338/14, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 24, 2015, as denied its motion for summary judgment on its cause of action for contractual indemnification against the defendants PRP, LLC, doing business as 18th Ave. Mini Market, and Dhwani Patel, and declaring that the defendant New York Central Mutual Fire Insurance Co. is obligated to defend and indemnify it in the underlying personal injury action.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff, Brooklyn View (hereinafter the landlord), leased the ground floor of a building to the defendants PRP, LLC, doing business as 18th Ave. Mini Market, and Dhwani Patel (hereinafter together the tenants). The tenants operated a store in the leased premises. One night, a store employee set the trash out on the sidewalk, and an unknown individual set it on fire. The fire ultimately spread to some of the interior portions of the premises. Several of the building’s other tenants commenced an action against the landlord, among others (hereinafter the underlying action), to recover damages for personal injuries allegedly caused by the fire.The tenant’s insurer was New York Central Mutual Fire Insurance Co. (hereinafter the insurer). The insurer refused to defend and indemnify the landlord in the underlying action on the ground that the tenants’ insurance policy did not list the landlord as an additional insured. The landlord commenced this declaratory judgment action against the insurer, contending that the tenants’ policy provided coverage for liabilities assumed by the tenants under their lease with the landlord, and therefore the insurer must defend and indemnify the landlord in the underlying action. The landlord also asserted a cause of action against the tenants for contractual indemnification pursuant to their lease.The landlord moved for summary judgment on its cause of action for contractual indemnification against the tenants and declaring that the insurer is obligated to defend and indemnify it in the underlying action. The Supreme Court, inter alia, denied that motion, and the landlord appeals.The landlord failed to establish, prima facie, that the lease obligates the tenants to indemnify the landlord in the underlying action. Resolution of the issue should await the determination of liability in the underlying action (see Great N. Ins. Co. v. Interior Constr. Corp., 7 NY3d 412; Valente v. Dave & Buster’s of N.Y., Inc., 132 AD3d 973; Bryde v. CVS Pharmacy, 61 AD3d 907), and since the tenants are not insurers, their duty to defend is no broader than their duty to indemnify (see Bermudez v. New York City Hous. Auth., 199 AD2d 356). Accordingly, the Supreme Court properly denied that branch of the landlord’s motion which was for summary judgment on its cause of action for contractual indemnification.The landlord also failed to establish, prima facie, that the insurer must defend and indemnify it in the underlying action pursuant to the terms of the policy. Coverage extends only to named entities and/or individuals defined as insured parties under the terms of an insurance policy, so that if the policy does not name, describe, or otherwise refer to the landlord, there is no obligation to defend or indemnify (see Catholic Health Servs. of Long Is., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 46 AD3d 590). Here, the policy provides coverage for liabilities the tenants assume pursuant to a lease. However, status as an indemnitee does not necessarily operate to confer status as an additional insured entitled to coverage (see Hargob Realty Assoc., Inc. v. Fireman’s Fund Ins. Co., 73 AD3d 856). Indeed, the policy here is ambiguous as to whether the insurer is obligated to provide coverage to the landlord pursuant to the terms of the policy and the lease (see Majawalla v. Utica First Ins. Co., 71 AD3d 958, 960). Thus, the landlord failed to establish, prima facie, that the parties to the policy intended to insure the interest for which the landlord seeks coverage (see State of New York v. American Mfrs. Mut. Ins. Co., 188 AD2d 152, 155). Accordingly, the Supreme Court properly denied that branch of the landlord’s motion which was for summary judgment declaring that the insurer is obligated to defend and indemnify it in the underlying action (see Majawalla v. Utica First Ins. Co., 91 AD3d at 960-961).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.PEOPLE, etc., res, v. Mickail L. Drayton-Archer, ap — (Ind. No. 1033/12)Paul Skip Laisure, New York, NY (Samuel Brown of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered December 16, 2013, convicting him of criminal possession of a weapon in the second degree (two counts), failing to stop at a steady red signal (three counts), unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the law, by vacating the convictions of criminal possession of a weapon in the second degree and the sentences imposed thereon; as so modified, the judgment is affirmed, and a new trial is ordered on those counts of the indictment.The defendant was charged, inter alia, with four counts of criminal possession of a weapon in the second degree. The charges were based upon allegations that the defendant, while driving a vehicle, sped away when police officers approached the vehicle in an attempted vehicle stop and led police on a chase through parts of Queens, during which another occupant of the vehicle allegedly threw a firearm from the rear passenger side window. After a jury trial, the defendant was convicted of two counts of criminal possession of a weapon in the second degree and certain traffic violations. The defendant appeals.Contrary to the defendant’s contention, his Batson challenges (see Batson v. Kentucky, 476 US 79) were properly denied. Once the prosecutor set forth race-neutral reasons for the peremptory strikes, the defendant failed to meet his burden of establishing that those reasons were pretextual (see People v. Hecker, 15 NY3d 625, 663-664; People v. Smocum, 99 NY2d 418, 423-424; People v. Gonsalez, 144 AD3d 841, 842; People v. Allen, 71 AD3d 778, 779).The defendant’s contention that he received ineffective assistance of counsel because trial counsel neither objected to the Supreme Court taking the verdict without seeking clarification as to whether the jury withdrew a request for a read back of certain testimony, nor requested himself that such testimony be read back, is without merit (see People v. Murphy, 133 AD3d 690, 691; see also People v. Brown, 17 NY3d 742, 743-744; People v. Rivera, 71 NY2d 705, 709).Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt of two counts of criminal possession of a weapon in the second degree beyond a reasonable doubt (Penal Law §265.03[1][b]; [3]; see People v. Watkins, 151 AD3d 1913, 1914; People v. Graham, 138 AD3d 1242, 1243; People v. Johnson, 94 AD3d 1408, 1409; People v. Ortiz, 61 AD3d 779, 780; People v. Carney, 18 AD3d 242, 243; People v. Santiago, 199 AD2d 290, 290). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdicts of guilty as to criminal possession of a weapon in the second degree were not against the weight of the evidence (see People v. Romero, 7 NY3d 633).However, the Supreme Court erred in granting the People’s request for a jury charge on the automobile presumption of possession of a weapon (see Penal Law §265.15[3]). Both police officers who pursued the vehicle being driven by the defendant testified that the gun was seen solely in the physical possession of the other occupant of the vehicle who threw it out the rear passenger side window. This clear-cut evidence that the gun was observed exclusively in the possession of an identified occupant of the vehicle renders the automobile presumption inapplicable and it was error for the court to have charged that presumption (see People v. Williams, 146 AD2d 659, 660; cf. People v. Verez, 83 NY2d 921, 924; People v. Lemmons, 40 NY2d 505, 511; Matter of Tamara E., 19 AD3d 489, 490; Matter of Rhamel C., 261 AD2d 125, 125; People v. O’Brien, 212 AD2d 741, 742; People v. Velez, 100 AD2d 603, 604). The error in giving the charge was not harmless since it is impossible to determine whether the guilty verdict was based on this improper jury charge rather than the proper charges pertaining to the People’s alternative theories of constructive possession and acting in concert (see People v. Kims, 24 NY3d 422, 438; People v. Martinez, 83 NY2d 26, 35; People v. Golden, 147 AD3d 780, 782; People v. Diallo, 137 AD3d 1681, 1682-1683; People v. Graves, 136 AD3d 1347, 1348-1349). Accordingly, we must vacate the defendant’s convictions of criminal possession of a weapon in the second degree and the sentences imposed thereon and order a new trial on those counts of the indictment.Since a new trial is ordered, we note that, while unpreserved for appellate review (see CPL 470.05[2]; People v. Jones, 138 AD3d 1144, 1145; People v. Joseph, 114 AD3d 878, 879), the defendant’s contention that a circumstantial evidence charge should have been given is without merit since the People’s case consisted of both direct and circumstantial evidence (see People v. Daddona, 81 NY2d 990, 992; People v. O’Brien, 212 AD2d at 742).In light of our determination, the defendant’s remaining contention need not be reached.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Jeison Santana, ap — (Ind. No. 1741/13)for appellant.Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Kevin C. King of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered February 25, 2015, adjudicating him a youthful offender, upon a jury verdict finding him guilty of attempted robbery in the second degree and attempted petit larceny, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Meryl J. Berkowitz, J.), of the suppression of showup identification testimony.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the People were not required to provide him with notice of the alleged showup identification testimony of a certain police officer, since the officer did not make an identification of the defendant within the meaning of CPL 710.30 (see People v. Gissendanner, 48 NY2d 543, 551-552; People v. Dotson, 30 AD3d 181, 181; People v. Moon, 180 AD2d 652, 652; cf. People v. Pacquette, 25 NY3d 575, 578; People v. Boyer, 6 NY3d 427; People v. Newball, 76 NY2d 587). Further, contrary to the defendant’s contention, the hearing court properly declined to suppress the complainant’s showup identification testimony, since the showup took place in close spatial and temporal proximity to the commission of the crime (see People v. Johnson, 104 AD3d 705, 706; People v. Jacob, 94 AD3d 1142, 1144; People v. Gonzalez, 57 AD3d 560, 561; People v. Cruz, 31 AD3d 660, 661; People v. Rodney, 237 AD2d 541, 541-542) and was not unduly suggestive (see People v. Jerry, 126 AD3d 1001, 1002; People v. Gonzalez, 57 AD3d at 561; People v. Crumble, 43 AD3d 953, 953; People v. Grassia, 195 AD2d 607, 607; People v. Rowlett, 193 AD2d 768, 768; cf. e.g. People v. Adams, 53 NY2d 241, 248-249).The defendant’s contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 491-492; People v. Campbell, 142 AD3d 623, 623-624). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilty was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.Craig Giardini ap, v. Saverino G. Settanni res — (Index No. 9429/15)Jeffrey Herzberg, P.C., Hauppauge, NY, for appellants.Appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated March 31, 2016. The order, insofar as appealed from, denied the plaintiffs’ motion for summary judgment on their causes of action to recover damages for conversion, to recover on an account stated, and for injury to property.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiffs, the owners and operators of a vehicle repair shop, allege that they repaired, at the defendants’ request, a vehicle owned by the defendants, and that the defendants removed their vehicle from the plaintiffs’ premises without authorization and without paying for the repairs. The plaintiffs brought this action, inter alia, to recover damages for conversion, to recover on an account stated, and to recover damages for damage the defendants allegedly caused to another vehicle on the plaintiffs’ property.In order to succeed on a cause of action to recover damages for conversion, a plaintiff must show (1) legal ownership or an immediate right of possession to a specific identifiable thing and (2) that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s right (see Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 AD3d 822, 824; Zendler Const. Co., Inc. v. First Adj. Group, Inc., 59 AD3d 439). Here, the plaintiffs failed to establish, prima facie, that they had an immediate right of possession to the defendants’ vehicle and failed to establish that the defendants exercised unauthorized dominion over the vehicle (see Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v. Eland Motor Car Co., 85 NY2d 725; Matter of BMW Bank of N. Am. v. G & B Collision Ctr., Inc., 46 AD3d 875).With regard to the cause of action to recover on an account stated, the plaintiffs failed to establish, prima facie, that there was an express or implied agreement on the cost of the alleged repairs made to the defendants’ vehicle (see Caring Professionals, Inc. v. Landa, 152 AD3d 738, 739; Bashian & Farber, LLP v. Syms, 147 AD3d 714, 715; Episcopal Health Servs., Inc. v. POM Recoveries, Inc., 138 AD3d 917; Raytone Plumbing Specialties, Inc. v. Sano Constr. Corp., 92 AD3d 855; American Express Centurion Bank v. Cutler, 81 AD3d 761, 762).The plaintiffs’ remaining contentions are without merit.Accordingly, the Supreme Court properly denied the plaintiffs’ motion for summary judgment.RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.Maria Zyla, ap, v. Interboro Mutual Indemnity Insurance Company, respondent def — (Index No. 14021/09)Garth A. Molander, Bohemia, NY, for appellant.Picciano & Scahill, P.C., Westbury, NY (Francis J. Scahill and Andrea E. Ferrucci of counsel), for respondent.Appeal from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered September 23, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendant Interboro Mutual Indemnity Insurance Company which was for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Interboro Mutual Indemnity Insurance Company which was for summary judgment dismissing the complaint insofar as asserted against it is denied.In support of that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, the defendant Interboro Mutual Indemnity Insurance Company (hereinafter Interboro) established its prima facie entitlement to judgment as a matter of law. However, in opposition, the plaintiff raised a triable issue of fact. Accordingly, the Supreme Court erred in granting that branch of Interboro’s motion which was for summary judgment dismissing the complaint insofar as asserted against it (see generally Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.MATTER of 278, LLC, etc., ap, v. Zoning Board of Appeals of the Town of East Hampton res — (Index No. 4979/13)Appeal from a judgment of the Supreme Court, Suffolk County (Peter H. Mayer, J.), dated December 17, 2014. The judgment denied a petition filed pursuant to CPLR article 78, which sought to annul a determination of the Zoning Board of Appeals of the Town of East Hampton, requiring a natural resources special permit and denying the petitioner’s application for such a permit, in effect, dismissed the proceeding, and remitted the matter to the Zoning Board of Appeals of the Town of East Hampton for further proceedings.ORDERED that the judgment is modified, on the law, by deleting the provision thereof remitting the matter to the Zoning Board of Appeals of the Town of East Hampton for further proceedings; as so modified, the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.The petitioner purchased certain vacant oceanfront property in the Town of East Hampton in 2007. Shortly after its purchase of the property, the petitioner was advised by the Town’s Natural Resources Environmental Protection Department that the parcel contained certain features which were protected by the Code of the Town of East Hampton (hereinafter the Town Code), and that any changes to the property that would alter the protected features would necessitate, among other things, a natural resources special permit from the Town’s Zoning Board of Appeals (hereinafter the ZBA). The petitioner, who owned two other adjoining parcels, built two parallel retaining walls across all three parcels without obtaining any permits. The Town charged the petitioner with unlawfully and knowingly violating the Town Code, inter alia, by constructing the walls within an area of protected beach vegetation. A portion of the walls was removed on the adjoining parcels, and the charges against the petitioner were settled by requiring the petitioner, among other things, to apply to the Town for the relevant permits for the retaining walls on the subject parcel. Those walls ran from east to west along the southerly portion of the property and extended north along the easterly portion of the property, at a total length of approximately 762 linear feet.In a determination dated April 13, 2012, the Town’s Senior Building Inspector concluded that a substantial portion of the walls was constructed in a location containing dune land and beach vegetation and, therefore, the issuance of a natural resources special permit was required before a building permit could be issued. The petitioner appealed the Senior Building Inspector’s determination to the ZBA. The petitioner also applied to the ZBA for a natural resources special permit and for a variance from Town Code §255-11-20(C) to allow the retention of an accessory structure—the walls—where there is no principal structure. After an extensive hearing on the appeal and the applications, the ZBA concluded that a natural resources special permit was required for the retaining walls due to their location in a protected area. The ZBA denied the application for such a permit, finding that the application as proposed failed to meet the requisite standards. It further found that because the natural resources special permit was being denied, the application for a variance had been rendered academic.The petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the ZBA’s determination that a natural resources special permit was required for the entire length of the retaining walls, and denying its application for such a permit. The Supreme Court denied the petition and, in effect, dismissed the proceeding, finding that the ZBA’s determination was rational and not arbitrary or capricious. Nonetheless, the court also found that because the ZBA made no findings and conclusions regarding the petitioner’s application for a variance from Town Code §255-11-20(C) and its determination did not clearly delineate what portions of the walls were within the jurisdiction of the natural resources special permit, the status of any portion of the walls outside of that area had not been determined. Accordingly, the court remitted the matter to the ZBA for further proceedings to determine whether any variances were needed regarding the construction of any portion of the walls. The petitioner appeals.Contrary to the petitioner’s contentions, it was within the ZBA’s jurisdiction to determine the matters presented in the subject applications (see Town Law §267-b[1]; Town Code §§255-5-51[A]; 255-8-30). A local zoning board has broad discretion in rendering a determination on matters within its jurisdiction and judicial review is limited to determining whether the action taken by the board was rational and not illegal, arbitrary and capricious, or an abuse of discretion (see CPLR 7803[3]; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613; Matter of Sasso v. Osgood, 86 NY2d 374, 384; Matter of Beekman Delamater Props., LLC v. Village of Rhinebeck Zoning Bd. of Appeals, 150 AD3d 1099, 1103; Matter of Birch Tree Partners, LLC v. Nature Conservancy, 122 AD3d 841, 842).The ZBA’s determination that the approximately 762 linear feet of retaining walls at issue required a natural resources special permit had a rational basis and was not illegal or arbitrary and capricious. Contrary to the petitioner’s contentions, the record contains sufficient evidence to support the rationality of that determination (see Matter of Sasso v. Osgood, 86 NY2d at 384 n 2; Matter of Beekman Delamater Props., LLC v. Village of Rhinebeck Zoning Bd. of Appeals, 150 AD3d at 1103). The evidence before the ZBA included photographs, surveys, site visits, and the conclusions of the experts for the Town and the intervenors in this proceeding, from which the ZBA rationally could have determined that the walls were constructed over dune land and that beach vegetation was destroyed, and thus a natural resources special permit was required (see Town Code §255-4-20).Furthermore, the ZBA’s determination to deny the application for a natural resources special permit was not illegal, had a rational basis, and was not arbitrary and capricious (see Matter of Foti v. Town of E. Hampton, N.Y., Zoning Bd. of Appeals, 60 AD3d 1057). ”Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” (Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195 [citation omitted]; see Town Law §274-b[1]; Matter of Leon Petroleum v. Board of Trustees of Inc. Vil. of Mineola, 309 AD2d 804, 805). Thus, the burden of proof on the applicant seeking a special use permit “is lighter than that on an applicant seeking a variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance” (Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 NY2d at 195; see Matter of Mamaroneck Coastal Envt. Coalition, Inc. v. Board of Appeals of the Vil. of Mamaroneck, 152 AD3d 771, 772; Matter of Leon Petroleum v. Board of Trustees of Inc. Vil. of Mineola, 309 AD2d at 805). ”A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection” (Matter of Smyles v. Board of Trustees of Inc. Vil. of Mineola, 120 AD3d 822, 823; see Matter of Green 2009, Inc. v. Weiss, 114 AD3d 788, 789; Matter of White Castle Sys., Inc. v. Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731, 732). ”However, where evidence supporting the denial exists, deference must be given to the discretion of the zoning board, and a court may not substitute its own judgment for that of the zoning board, even if a contrary determination is supported by the record” (Matter of Green 2009, Inc. v. Weiss, 114 AD3d at 789; see Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 NY2d at 196; Matter of Smyles v. Board of Trustees of Inc. Vil. of Mineola, 120 AD3d at 823-824; Matter of White Castle Sys., Inc. v. Board of Zoning Appeals of Town of Hempstead, 93 AD3d at 732).Here, evidence in the record supports the ZBA’s findings that the petitioner failed to demonstrate that the retaining walls were erected in conformance with the conditions imposed (see Town Code §§255-4-40, 255-5-51). Since the petitioner, which erected the retaining walls prior to obtaining any permits, failed to request a lot inspection by the Town prior to construction and failed to sufficiently document the preexisting conditions, the ZBA had to rely on expert testimony to ascertain the conditions in the area prior to construction. Its decision to rely on the conclusions of its experts, rather than the conflicting testimony of the petitioner’s expert, did not render its determination arbitrary, capricious, or lacking in a rational basis (see Matter of Ball v. New York State Dept. of Envtl. Conservation, 35 AD3d 732, 733; Matter of Gladstone v. Zoning Bd. of Appeals of Inc. Vil. of Southampton, 13 AD3d 445, 445-446; Matter of Seven Acre Wood St. Assoc. v. Town of Bedford, 302 AD2d 532, 533). The petitioner’s contention that the ZBA simply yielded to community pressure and negative press coverage is without merit (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d at 613; Matter of Leon Petroleum v. Board of Trustees of Inc. Vil. of Mineola, 309 AD2d at 805-806; cf. Matter of Schumacher v. Town of East Hampton, N.Y. Zoning Bd. of Appeals, 46 AD3d 691; Matter of Marro v. Libert, 40 AD3d 1100).A review of the ZBA’s determination shows that it concluded that the entire approximately 762-linear-foot length of the retaining walls at issue required a natural resources special permit. Thus, upon denying the petitioner’s application for the special permit, the ZBA properly concluded that the petitioner’s application for a variance from the requirements of Town Code §255-11-20(C) had been rendered academic. Consequently, the Supreme Court erred in remitting the matter to the ZBA for further proceedings to determine questions relating to the application for a variance (cf. Matter of Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood Lake, 101 AD3d 1001, 1002).Accordingly, we must modify the judgment by deleting the provision thereof which remitted the matter to the ZBA, and otherwise affirm.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.MATTER of 278, LLC, etc., appellant, v. ZoningBoard of Appeals of the Town of East Hampton, respondents.(Index No. 4979/13) Motion by the respondents Taya Thurman, Taya Thurman Trust, and Taya Thurman Secondary Residence Trust to dismiss an appeal from a judgment of the Supreme Court, Suffolk County, dated December 17, 2014, on the ground that the paper appealed from is not appealable as of right as it is a nonfinal order in a proceeding pursuant to CPLR article 78. By decision and order on motion of this Court dated June 2, 2016, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, and upon the argument of the appeal, it isORDERED that the motion is denied (see CPLR 5701[a][1]).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Jermaine Winter, ap — (Ind. No. 11332/01)Paul Skip Laisure, New York, NY (Patricia Pazner of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Marcia P. Hirsch, J.), dated November 6, 2014, which denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Douglas Wong, J.) rendered May 9, 2002, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, on the ground that he was denied the effective assistance of counsel and due process.Motion by the respondent, inter alia, to dismiss the appeal on the ground that the appellant has been deported and is no longer available to obey the mandate of the court. By decision and order on motion of this Court dated June 7, 2017, that branch of the motion was held in abeyance and referred to the panel of justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it isORDERED that the branch of the motion which is to dismiss the appeal is granted and the appeal is dismissed, without costs or disbursements, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction.The defendant was born in Jamaica and came to the United States at the age of two as a legal permanent resident. In 2001, at the age of 19, the defendant was arrested and charged with attempted criminal sale of a controlled substance in the third degree. In March 2002, he pleaded guilty to attempted criminal sale of a controlled substance in the third degree, and on May 9, 2002, he was sentenced, as promised at the time that he entered his plea, to a period of five years of probation. In May 2013, the United States Department of Homeland Security commenced deportation proceedings against the defendant based upon his 2002 conviction in New York and a 2009 conviction in Pennsylvania. In August 2014, the defendant moved to vacate his New York conviction, alleging that he was denied the effective assistance of counsel because he was never advised of the deportation consequences of his plea and that he was denied due process because the court never advised him that his plea could lead to his deportation.By order dated November 6, 2014, the Supreme Court denied the motion without a hearing, holding that the defendant was not denied the effective assistance of counsel because there was no affirmative misadvice and because the defendant could not demonstrate any prejudice. The court also held that the defendant’s due process claim was improperly raised in a CPL 440.10 motion because it appeared on the face of the record and was thus subject to direct appeal. On May 14, 2015, this Court granted the defendant leave to appeal from the November 6, 2014, order. After the defendant filed his appellant’s brief, the People moved to dismiss the appeal on the ground that the defendant was no longer available to obey the mandate of the Court, as he had been deported to Jamaica.In People v. Harrison (27 NY3d 281), the Court of Appeals reaffirmed its ruling that an intermediate appellate court retains its discretion to dismiss a pending permissive appeal due to a defendant’s involuntary deportation. Here, if the order were reversed, the defendant would be required to attend and participate in further proceedings in the Supreme Court, which he can no longer do. Accordingly, the People’s motion is granted and the appeal is dismissed, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction (see People v. Harrison, 27 NY3d at 288-290).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.Tribeca Lending Corp., res, v. Jeffrey A. Lawson, appellant def — (Index No. 22265/08)Ahern & Ahern, Kings Park, NY (Dennis P. Ahern of counsel), for appellant.Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Allison J. Sanders of counsel), for respondent.Appeals from two orders of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), both dated November 24, 2015. The second order, insofar as appealed from, granted those branches of the plaintiff’s renewed motion which were for summary judgment on the complaint insofar as asserted against the defendant Jeffrey A. Lawson, to strike his answer and affirmative defenses, and for an order of reference, and appointed to a referee to compute the amount due to the plaintiff.ORDERED that the appeal from the first order is dismissed, as the portion of the order appealed from was superseded by the second order; and it is further,ORDERED that the second order is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In March 2007, the defendant Jeffrey A. Lawson borrowed the sum of $213,850 from the plaintiff. The loan was memorialized by an adjustable rate note and secured by a mortgage on real property in Nesconset. Lawson allegedly defaulted on the loan by failing to make the payment due on July 1, 2007. In June 2008, the plaintiff commenced this action to foreclose the mortgage. Lawson joined issue by serving a verified answer in which he asserted the affirmative defenses of failure to state a cause of action, lack of personal jurisdiction, and lack of standing.In December 2012, after a series of settlement conferences, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Lawson, to strike his answer and affirmative defenses, and for an order of reference. In an order dated July 17, 2013, the Supreme Court denied the plaintiff’s motion without prejudice to renewal upon the submission of, among other things, additional proof of ownership of the property. In November 2013, the plaintiff renewed its motion for summary judgment. However, in an order dated March 27, 2014, the court denied the motion, again without prejudice to renewal upon submission of certain specified evidentiary proof. In July 2014, the plaintiff filed a second renewed motion for summary judgment, which was granted in its entirety in an order dated November 24, 2014.Thereafter, upon Lawson’s motion for leave to reargue, the Supreme Court vacated the order dated November 24, 2014, and directed the plaintiff to make a new motion for summary judgment. The plaintiff filed its third renewed motion for summary judgment in July 2015. Lawson opposed that motion, arguing, among other things, that the plaintiff failed to proffer sufficient proof of its compliance with RPAPL 1303 and failed to demonstrate its compliance with conditions precedent applicable to high-cost loans under former RPAPL 1302 and former Banking Law 6-l. The court, inter alia, granted those branches of the plaintiff’s renewed motion which were for summary judgment on the complaint insofar as asserted against Lawson, to strike his answer and affirmative defenses, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff. Lawson appeals.To establish its prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Hudson City Sav. Bank v. Genuth, 148 AD3d 687, 688-689). Moreover, where, as here, a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726).Here, in support of its last renewed motion, the plaintiff produced the mortgage, the note, and the affidavit of an assistant vice president of its loan servicer, who attested to Lawson’s default and the fact that the plaintiff, the originator of the loan, was the holder of the note and mortgage at the time it commenced this action. Further, contrary to Lawson’s contention, the plaintiff established, prima facie, that the subject loan was not a high-cost home loan and, in any event, that it complied with the requirements for such loans (see former RPAPL 1302[1]; former Banking Law 6-l; cf. Aries Fin., LLC v. 12005 142nd St., LLC, 127 AD3d 900, 901-902). In opposition, Lawson failed to raise a triable issue of fact.Lawson’s remaining contention is without merit.Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Lawson, to strike his answer and affirmative defenses, and for an order of reference.RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.
