Appellate Division Second Department Hand Down List decided on: March 14, 2018 By Dillon, J.P.; Miller, Barros and Christopher, JJ.

Long Island Pine Barrens Society, Inc., et al., res, v. Suffolk County Legislature, et al., appellants def — (Index No. 37937/10)Appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated September 28, 2016, and a judgment of that court dated December 9, 2016. The order, insofar as appealed from, granted those branches of the plaintiffs’ motion which were for summary judgment on the third through eighth causes of action, each of which sought a declaratory judgment, and denied those branches of the cross motion of the defendants Suffolk County Legislature and Suffolk County Farmland Committee which were for summary judgment with respect to those causes of action. The judgment declared that Local Law Nos. 52-2010 and 44-2013 of the County of Suffolk are illegal, null, and void, and permanently enjoined the defendants Suffolk County and Suffolk County Farmland Committee from issuing permits and hardship exemptions pursuant to those local laws, and from taking any other future action pursuant to those local laws.ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,ORDERED that the judgment is reversed, on the law, those branches of the plaintiffs’ motion which were for summary judgment on the third through eighth causes of action are denied, those branches of the cross motion of the defendants Suffolk County Legislature and Suffolk County Farmland Committee which were for summary judgment with respect to those causes of action are granted, the permanent injunction against those defendants is vacated, the order is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an amended judgment declaring that Local Law Nos. 52-2010 and 44-2013 of the County of Suffolk are not illegal, null, and void, and do not violate the General Municipal Law or the public trust doctrine, and that a referendum was not required for the enactment of those local laws; and it is further,ORDERED that one bill of costs is awarded to the appellants.In 1974, the Suffolk County Legislature (hereinafter the County Legislature) passed a local law establishing a program by which Suffolk County (hereinafter the County) could purchase the development rights in agricultural lands. Since the inception of this program, there have been several amendments to the law, including Local Law Nos. 52-2010 and 44-2013 of the County of Suffolk. Among other things, Local Law Nos. 52-2010 and 44-2013 set forth procedures by which the Suffolk County Farmland Committee (hereinafter the Committee) could grant permits for structures, farm stands, processing facilities, and special events on land in which the County has purchased development rights. These laws also set forth lot coverage limits for land in which the County has purchased development rights and a hardship exemption from those limits.The plaintiffs, a not-for-profit environmental organization, the Executive Director of that organization, and two taxpayers, commenced this action for a judgment declaring Local Law Nos. 52-2010 and 44-2013 to be illegal, null, and void, and for a permanent injunction prohibiting the County from using taxpayer money to acquire development rights unless the County Legislature adopted laws to protect such development rights. The plaintiffs alleged, inter alia, that Local Law Nos. 52-2010 and 44-2013 violated the General Municipal Law (third and fourth causes of action), the public trust doctrine (fifth and sixth causes of action), and the requirement that a referendum be held to approve any alienation of development rights (seventh and eighth causes of action). The plaintiffs moved for summary judgment on the amended complaint. In response, the County Legislature and the Committee (hereinafter together the County defendants) cross-moved for summary judgment. In an order dated September 28, 2016, the Supreme Court granted those branches of the County defendants’ cross motion which were for summary judgment with respect to the first, second, ninth, and tenth causes of action and, in effect, denied those branches of the plaintiffs’ motion which were for summary judgment on those causes of action. The court granted those branches of the plaintiffs’ motion which were for summary judgment on the third through eighth causes of action, and denied those branches of the County defendants’ cross motion which were for summary judgment with respect to those causes of action. In a judgment dated December 9, 2016, the court declared that Local Law Nos. 52-2010 and 44-2013 are illegal, null, and void, and permanently enjoined the County defendants from issuing permits and hardship exemptions pursuant to those local laws, and from undertaking any other future action pursuant to those local laws. The County defendants appeal from the order and from the judgment.The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The Supreme Court correctly determined that the public trust doctrine applied to the property interest at issue, namely, development rights in agricultural land, as the plaintiffs demonstrated prima facie that the County acquired these development rights for public use and not in its “corporate capacity” (Kenny v. Board of Trustees of Inc. Vil. of Garden City, 289 AD2d 534, 534 [internal quotation marks omitted]). In response, the County defendants failed to raise a triable issue of fact as to the capacity in which the County purchased the development rights.Contrary to the Supreme Court’s determination, however, the County defendants demonstrated, prima facie, that the contested provisions in Local Law Nos. 52-2010 and 44-2013, namely, those concerning commercial horse boarding and equine operations, agricultural development permits for structures and alternative energy systems, maximum lot coverages and the hardship exemption thereto, agricultural tourism, special use permits to conduct a site disturbance or a special event, agricultural processing facilities, hay rides, and agricultural educational tours, did not waste public property or violate the public trust doctrine (see Agriculture and Markets Law §301[4]; Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623, 630; 795 Fifth Ave. Corp. v. City of New York, 15 NY2d 221, 225-226; Saska v. Metropolitan Museum of Art, 53 Misc 3d 1212[A], 2016 NY Slip Op 51628[U], *8 [Sup Ct, NY County]). Permitting land to be used for commercial horse boarding and equine operations, “U-pick” operations, crop mazes, hay rides, agricultural educational activities, the regulated processing of agricultural products, and the provision of agricultural permits for structures and alternative energy systems, and special use permits for site disturbances do not amount to a transfer of the County’s development rights, as these land uses all constitute or are sufficiently related to agricultural production. ”U-pick” operations, crop mazes, and hay rides on land used for agricultural production are consistent with Agriculture and Markets Law §301(4)(c), which allows agricultural amusements, “includ[ing], but not limited to, so-called ‘corn mazes’ or ‘hay bale mazes.’” Similarly, the lot coverage limits and hardship exemption thereto did not transfer development rights from the County, as the land continued to be used for agricultural production. In response, the plaintiffs failed to raise a triable issue of fact. Accordingly, General Municipal Law §51 and the public trust doctrine provided no basis to declare these provisions of Local Law Nos. 52-2010 and 44-2013 to be illegal, null, or void.Our dissenting colleague takes issue with the majority to the extent that, in her view, the public trust is alienated by the provisions of Local Law No. 44-2013 allowing for processing facilities and the marketing of processed products. However, processing was restricted under this law to “on-premises and locally-grown agricultural products,” with the indigenous agricultural products comprising at least “51 percent of the input used.” Furthermore, restrictions were placed on permitted facilities. Such limited activities, in our view, are reasonably related to and consistent with land used for agricultural production. As a simple example of what the law allows, locally-picked apples may be baked into apple pies and locally sold. Clearly, this activity does not constitute a “substantial intrusion” into the public’s right to restrict the use of the land (Friends of Van Cortlandt Park v. City of New York, 95 NY2d at 630).Accordingly, the Supreme Court should have denied those branches of the plaintiffs’ motion which were for summary judgment on the third, fourth, fifth, and sixth causes of action, and granted those branches of the County defendants’ cross motion which were for summary judgment with respect to those causes of action. Moreover, the court should have denied those branches of the plaintiffs’ motion which were for summary judgment on the seventh and eighth causes of action, and granted those branches of the County defendants’ cross motion which were for summary judgment with respect to those causes of action. Those causes of action were specifically based on the requirement in Chapter 8 of the Code of Suffolk County that the County hold a referendum before alienating development rights. Absent an alienation of development rights, there is no basis to direct a public referendum regarding the provisions of Local Law Nos. 52-2010 and 44-2013.We note that under the challenged laws, the Committee continues to perform its gatekeeping function of, inter alia, reviewing permit applications for structures, farm stands, facilities, and special events, and granting or denying permits where appropriate in the exercise of its best judgment, experience, and discretion. To ensure compliance with the public trust, in the event a permit applicant or other aggrieved party wishes to challenge a determination of the Committee, that party may pursue remedies available pursuant to CPLR article 78 on a case-by-case basis.The plaintiffs’ remaining argument improperly relies on matter dehors the record and, in any event, has no bearing on the legality of Local Law Nos. 52-2010 and 44-2013. The remaining argument raised by the amici curiae is without merit.Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of an amended judgment, inter alia, declaring that Suffolk County Local Law Nos. 52-2010 and 44-2013 of the County of Suffolk are not illegal, null, and void, and do not violate the General Municipal Law or the public trust doctrine, and that a referendum was not required for the enactment of those local laws (see Lanza v. Wagner, 11 NY2d 317, 334).DILLON, J.P., MILLER and BARROS, JJ., concur.CHRISTOPHER, J., concurs in part and dissents in part, and votes to modify the judgment appealed from, on the law, (1) by deleting the provisions thereof declaring that Local Law Nos. 52-2010 and 44-2013 are illegal, null, and void with respect to commercial horse boarding and equine operations, agricultural development permits for structures and alternative energy systems, maximum lot coverages and the hardship exemption thereto, special use permits for site disturbances, “U-pick” operations, and crop mazes, and substituting therefor a provision declaring that those portions of those local laws are not illegal, null, and void, and (2) by deleting the provisions thereof permanently enjoining the defendants Suffolk County and Suffolk County Farmland Committee from issuing permits and hardship exemptions pursuant to those portions of those local laws, and from taking any other future action pursuant to those sections of those local laws, and as so modified, to affirm the judgment insofar as appealed from and to vacate the permanent injunction with respect to those portions of those local laws, with the following memorandum:I respectfully disagree with my colleagues to the extent that I would find that the Supreme Court correctly determined that the plaintiffs demonstrated prima facie that the provisions in Local Law No. 44-2013 of the County of Suffolk regarding processing facilities and the provisions in Local Law Nos. 52-2010 and 44-2013 regarding farm stands constituted a waste of public funds (see General Municipal Law §51; Long Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 AD3d 688, 690) and violated the public trust doctrine (see Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623, 630). Development rights were defined by the County Legislature at the time these laws were enacted as the right to restrict the use of the land to agricultural production. Processing facilities and retail merchandising do not constitute agricultural production (see Agriculture and Markets Law §301[4]), and it was therefore a waste of taxpayer money to allow such structures and activities on land in which the County has purchased development rights (see Long Is. Pine Barrens Socy., Inc. v. County of Suffolk, 122 AD3d at 690). Moreover, because processing and retail merchandising categorically are not agricultural production, allowing such structures and activities on these lands violated the public trust doctrine (see Friends of Van Cortlandt Park v. County of Suffolk, 95 NY2d at 630; Saska v. Metropolitan Museum of Art, 53 Misc 3d 1212[A], 2016 NY Slip Op 51628[U], *8 [Sup Ct, NY County]). In response to this prima facie showing, the County defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court correctly declared that these provisions of the local laws are illegal, null, and void.I further disagree with respect to the seventh and eighth causes of action based on the requirement in Chapter 8 of the Code of Suffolk County that the County hold a referendum before alienating development rights, with alienation defined as the transfer of development rights from the County to another. The plaintiffs demonstrated prima facie that the provisions in Local Law No. 44-2013 allowing processing facilities, hay rides, and agricultural educational tours, and the provisions in both Local Law Nos. 52-2010 and 44-2013 allowing farm stands and special use permits for special events, constituted an alienation of publicly purchased development rights. Allowing these structures and activities, which do not constitute agricultural production, on land in which the County has purchased development rights amounts to a transfer of development rights from the County to the landowner or tenant. In response to this prima facie showing by the plaintiffs, the County defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court correctly declared that those provisions of the local laws are illegal, null, and void.In sum, the Supreme Court correctly declared illegal, null, and void the provisions in Local Law Nos. 52-2010 and 44-2013 regarding farm stands and special use permits for special events, and the provisions in Local Law No. 44-2013 regarding processing facilities, hay rides, and agricultural educational tours. Moreover, the Supreme Court correctly enjoined the County defendants from taking action with regard to these provisions.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.PEOPLE, etc., res, v. Gregory Johnson, ap — (Ind. No. 1262/10)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered July 2, 2013, as amended August 1, 2013, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Richard L. Buchter, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.ORDERED that the judgment, as amended, is affirmed.Contrary to the defendant’s contention, the verdict finding him guilty of both counts of murder in the second degree, while acquitting him of murder in the first degree, was not legally repugnant. ”[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” (People v. Muhammad, 17 NY3d 532, 539-540; see People v. DeLee, 24 NY3d 603, 608). In determining whether a verdict is legally repugnant, the court reviews “the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial” (People v. Muhammad, 17 NY3d at 542; see People v. Tucker, 55 NY2d 1, 4). ”If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” (People v. Muhammad, 17 NY3d at 540; see People v. DeLee, 24 NY3d at 608). Viewing the elements of the offenses as charged to the jury here, the acquittal on the count of murder in the first degree did not negate any of the elements of the counts of murder in the second degree (see generally People v. Harris, 98 AD3d 420). To the extent that the defendant contends that the verdict should not be permitted to stand because of particular factual inconsistencies in it, his claim is without merit (cf. People v. Muhammad, 17 NY3d at 545; People v. Rayam, 94 NY2d 557; People v. Bess, 142 AD3d 1098, 1099; People v. Chavez, 139 AD3d 1082, 1083; People v. Choi, 137 AD3d 808, 809).Contrary to the defendant’s contention, he was not deprived of a fair trial because the prosecutor used electronic slides during summation to display, in question format, most of the elements of the charged crimes to the jury. The defendant does not assert that the questions set forth on the slides were inaccurate, and copies of the slides were not given to the jury to review during deliberations (see People v. Baker, 14 NY3d 266, 273; People v. Nash, 273 AD2d 696, 699; People v. Goodman, 190 AD2d 862, 863). The slides were not improper (see People v. Baker, 14 NY3d at 273). Moreover, the Supreme Court’s instructions were sufficient to dispel any possibility that the jury would give precedence or place undue emphasis on the prosecutor’s use of the slides (see id.). Jurors are presumed to follow the legal instructions they are given (see id.; People v. McManus, 150 AD3d 762; People v. Tohom, 109 AD3d 253, 268). Additionally, to the extent that the prosecutor improperly vouched for the credibility of one of the People’s witnesses and displayed a slide with accompanying text that highlighted the prosecutor’s statement during summation, this error was not so egregious as to deprive the defendant of a fair trial (see People v. Choi, 137 AD3d at 810; People v. Tiro, 100 AD3d 663).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review, and we decline to reach them in the exercise of our interest of justice jurisdiction.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.PEOPLE, res, v. Jamall Samuel, ap — Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle M. O’Boyle of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Queens County (Stephen A. Knopf, J.), dated September 8, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), contending that the Supreme Court should have granted his request for a downward departure from his presumptive risk level two designation to a risk level one designation.Generally, “[a] court determining a defendant’s risk level under [SORA] may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’” (People v. Warren, 152 AD3d 551, 551, quoting People v. Lathan, 129 AD3d 686, 687; see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).Here, the defendant failed to sustain his burden of proof in support of his request for a downward departure. The mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines, or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 AD3d 924, 924-925; People v. Game, 131 AD3d 460, 461; People v. Coleman, 122 AD3d 599, 599-600; People v. Wyatt, 89 AD3d at 131).Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive risk level designation.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Cohen, Duffy and Connolly, JJ.Beverly Bader, etc., ap, v. River Edge at Hastings Owners Corp. res — (Index No. 51343/14)In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 22, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On December 20, 2013, at about 8:30 a.m., the plaintiff allegedly tripped and fell on black ice in the parking lot of the defendants’ cooperative apartment complex where she resided. The accident occurred in a sloped area in the vicinity of a drain. About one inch of snow had fallen on December 17, 2013, but the plaintiff testified at her deposition that she did not see any snow or ice before she fell. The plaintiff commenced this action to recover damages for personal injuries allegedly sustained by her as a result of her fall. In the order appealed from, the Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint.“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” (Cuillo v. Fairfield Prop. Servs., L.P., 112 AD3d 777, 778; see Khalil v. Fernandez, 145 AD3d 765, 766; Castillo v. Silvercrest, 134 AD3d 977; Haberman v. Meyer, 120 AD3d 1301).Here, in support of their motion, the defendants submitted, inter alia, the affidavit of Jason Pitingaro, a professional engineer, who stated that he supervised a micro-topographical survey of the parking lot. He concluded that the gradient of the parking lot, including at the site of the plaintiff’s accident, was within acceptable professional standards, and that no “lip” was present there to hold water and cause ice. In another affidavit, John Picone, who had been involved with the day-to-day operation of the subject property since 1978, stated that based on his 38 years of experience working at the property, water did not “pond[ ]” in the parking lot. The defendants also submitted the transcript of the plaintiff’s deposition testimony, in which she testified that she traversed the area of her accident six times a week, but she did not recall ever previously noticing ice accumulation there and had never complained of any such condition. Further, the defendants submitted the deposition transcripts of nonparty witnesses Stephen Gabriel and Gail D’Angiolillo. Gabriel, who was a resident of the apartment complex, testified that at 8:00 a.m. on December 20, 2013, which was only 30 minutes before the plaintiff’s fall, he walked through the accident site and did not see any ice. D’Angiolillo, who lived at the subject property since 1994, testified that she did not recall being at the accident site on the day in question, that she had seen water pooling from rain at the bottom of the slope in the parking lot on three or four occasions during her time living at the property, and that she had fallen somewhere in the parking lot 15 years earlier but did not report the incident to anyone.The evidence submitted by the defendants in support of their motion established, prima facie, that they did not create the alleged black ice condition or have actual or constructive notice of it (see Haberman v. Meyer, 120 AD3d at 1301-1302; Cuillo v. Fairfield Prop. Servs., L.P., 112 AD3d at 778; Gushin v. Whispering Hills Condominium I, 96 AD3d 721). In particular, Picone’s statement in his affidavit that water did not pond in the parking lot during the 38 years he worked at the property necessarily addresses and excludes any recurring condition in the same lot. In opposition to the prima facie showing, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendants created the alleged condition or had actual or constructive notice of it.Our dissenting colleague’s conclusion that the defendants failed to meet their prima facie burden demonstrating their entitlement to summary judgment dismissing the complaint, because they did not address the issue of recurring condition, is unavailing for three reasons. First, “‘[t]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings’” (Lopez-Serrano v. Ochoa, 149 AD3d 1063, 1063, quoting Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214). The defendants met their burden here as, contrary to our dissenting colleague’s characterization of the pleadings, the plaintiff failed to allege the existence of a recurring condition at the specific site of her fall. Thus, the defendants had no obligation, in support of their motion for summary judgment, to address the issue of a recurring condition. Further, in opposition to the motion, the plaintiff failed to argue that any recurring condition was specific to the location within the parking lot where she is alleged to have fallen (see Rios v. 474431 Assoc., 278 AD2d 399, 400; Pellicane v. Lambda Chi Alpha Fraternity, 228 AD2d 569). For this Court to now hold, as urged by our dissenting colleague, that the defendants failed to meet their prima facie burden, even though the plaintiff never alleged or argued the existence of a recurring condition at the specific site of her fall, would be improper and contrary to well-established precedent. As a majority of the Court of Appeals stated in Misicki v. Caradonna (12 NY3d 511, 519), “[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made.”A second reason we disagree with the dissent is that Picone’s deposition testimony in support of the summary judgment motion established, prima facie, a long-term lack of knowledge of any prior ponding of water or icy condition in the parking lot (see Piacquadio v. Recine Realty Corp., 84 NY2d 967; Smith v. State of New York, 260 AD2d 819, 820-821) which, by definition and necessity, ruled out any conditions that might be recurring. Therefore, evidence of a lack of notice of a prior dangerous condition, recurring or otherwise, was established prima facie. Third, and finally, any allegations by the plaintiff of general ice conditions in the parking lot were not accompanied by evidence of complaints to the defendants as to raise a question of fact about prior notice of the defendants. At best, the collective evidence proffered by the plaintiff demonstrated that the defendants had merely a general awareness that, at times, an icy condition developed at unspecified locations in the parking lot during winter months. However, such general awareness was insufficient to constitute notice of the specific icy condition at the specific location that allegedly caused the plaintiff to fall (see Solazzo v. New York City Tr. Auth., 6 NY3d 734, 735; Piacquadio v. Recine Realty Corp., 84 NY2d at 969; Fisher v. Kasten, 124 AD3d 714, 715; Atkins v. State of New York, 123 AD3d 644; Cruz v. Rampersad, 110 AD3d 669, 670; Kostic Ascent Media Group, LLC, 79 AD3d 818, 819; Pinto v. Metropolitan Opera, 61 AD3d 949; Arrufat v. City of New York, 45 AD3d 710; Carricato v. Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444, 445).The plaintiff also failed to raise a triable issue of fact as to whether the parking lot and the drainage system were negligently designed (see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324; cf. Fiore v. Plainview Plaza, LLC, 137 AD3d 1202, 1203-1204).Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.DILLON, J.P., DUFFY and CONNOLLY, JJ., concur.COHEN, J., dissents, and votes to reverse the order appealed from, on the law, and deny the defendants’ motion for summary judgment dismissing the complaint, with the following memorandum:On a motion seeking the drastic remedy of summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). Summary judgment should be denied when there is “any doubt” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404) or when the existence of a triable issue of fact is “arguable” (id. at 404 [internal quotation marks omitted]). Indeed, case law consistently holds that the court’s proper function on a summary judgment motion is issue finding, not issue determination (see Sommer v. Federal Signal Corp., 79 NY2d 540, 554-555; Chimbo v. Bolivar, 142 AD3d 944, 945; Nocella v. Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877, 879).In a slip-and-fall case, a defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Castillo v. Silvercrest, 134 AD3d 977; Mignogna v. 7-Eleven, Inc., 76 AD3d 1054, 1054-1055). In the instant action, in my opinion, the defendants failed to establish, prima facie, that they did not have actual or constructive notice of the existence of the black ice upon which the plaintiff slipped and fell.Here, the defendants presented evidence that the purposeful design of the drainage system for the cooperative apartment complex entailed a sloped system forcing water to flow down to storm drains located in the parking lot where the plaintiff fell. While the defendants contended that there was nothing wrong with the topography of the parking lot and the property’s drainage system, they were aware that the drainage system caused icy conditions in the parking lot. While the mere general awareness that ice accumulates has been held to be insufficient to constitute notice of a particular icy condition (see Carricato v. Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444, 445), where the evidence establishes that a defendant had actual knowledge of a recurrent dangerous condition involving the formation of ice, that party is chargeable with constructive notice of each specific occurrence of that condition (see Toussaint v. Ocean Ave. Apt. Assoc., LLC, 144 AD3d 664, 665; Willis v. Galileo Cortlandt, LLC, 106 AD3d 730, 731; Mondello v. DiStefano, 16 AD3d 637, 639). Such “actual knowledge of a recurrent dangerous condition… is qualitatively different from a mere general awareness that a dangerous condition may be present” (Chin v. Harp Mktg., 232 AD2d 601, 602 [internal quotation marks and citations omitted]; see        Piacquadio v. Recine Realty Corp., 84 NY2d 967, 969; Erikson v. J.I.B. Realty Corp., 12 AD3d 344, 345).Here, the defendants were aware of the recurring icing conditions present in the parking lot and undertook efforts to remedy the recurring condition with twice-a-day inspections, during which icing would be treated with sand or salt. Indeed, the defendants’ submission also demonstrated credibility issues as to when the area where the plaintiff fell was last inspected. At the very least, the defendants failed to demonstrate that no triable issues of fact existed as to whether they had notice of the hazardous recurring condition (see Parietti v. Wal-Mart Stores, Inc., 29 NY3d 1136).Further, while my colleagues assert that the issue of whether there was a recurring condition at the specific location of the plaintiff’s accident was not raised by the plaintiff before the Supreme Court, I note that the defendants, in support of their motion for summary judgment, submitted the pleadings, as required, as well as the plaintiff’s bill of particulars, a tool used to amplify the pleadings. The bill of particulars specifically alleges that the defendants had “historic knowledge of the existence of icy and slippery conditions at said location” and ignored “previous occurrences caused by the same or similar conditions.” In other words, the bill of particulars alleges that the condition that caused the plaintiff to fall was recurring. Since the defendants failed, by their own submissions, to eliminate all triable issues of fact, they failed to make a prima facie showing, which is “governed by the allegations of liability made by the plaintiff in the pleadings” (Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214; see Lopez-Serrano v. Ochoa, 149 AD3d 1063, 1063; Beiner v. Village of Scarsdale, 149 AD3d 679, 680). Therefore, the motion should have been denied without consideration of the sufficiency of the plaintiff’s opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).Accordingly, I respectfully dissent.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Thomas Hines, ap — (Ind. No. 7934/09)Appeal by the defendant from a judgment of the Supreme Court, Kings County (James P. Sullivan, J.), rendered April 20, 2011, convicting him of attempted assault in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant contends that the verdict of guilty was against the weight of the evidence. 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), we nevertheless 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). Upon reviewing the record here, we are satisfied that the defendant’s convictions were not against the weight of the evidence.The defendant’s contention that the counts of criminal possession of a weapon in the second degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2]; People v. Bonilla, 151 AD3d 735, 737; People v. Wall, 92 AD3d 812, 813) and, in any event, without merit (see People v. Saunders, 290 AD2d 461, 463).By affirmatively agreeing to reorder the first two counts of the indictment on the verdict sheet, the defendant waived his right to challenge the same (see People v. Richardson, 88 NY2d 1049, 1051; People v. McCoy, 100 AD3d 1422, 1423). The defendant’s additional contention that the Supreme Court improvidently exercised its discretion in failing to submit those two counts in the alternative is unpreserved for appellate review (see CPL 470.05[2]; People v. Carter, 7 NY3d 875, 876), and, in any event, without merit as the indictment did not charge the first two counts in the alternative.The defendant’s objection to the Supreme Court’s taking of the sworn testimony of a particular witness who may have had a mental defect is unpreserved for appellate review (see CPL 470.05[2]; People v. Thompson, 119 AD3d 966, 967; People v. Batista, 92 AD3d 793; People v. Gillard, 7 AD3d 540, 541). In any event, the witness’s sworn testimony was properly admitted after a sufficient inquiry by the court in which the witness sufficiently established that he understood the nature of an oath, the difference between the truth and a lie, and that he could be punished for lying to the court (see CPL 60.20[2]; Wheeler v. United States, 159 US 523, 524-525; People v. Parks, 41 NY2d 36, 45; Matter of David S., 6 AD3d 539, 540; People v. Brill, 245 AD2d 384, 385). Furthermore, on this record, the witness could properly have been permitted to testify as an unsworn witness (see CPL 60.20[2]), because his testimony was sufficiently corroborated by other evidence (see People v. Groff, 71 NY2d 101, 109-110; People v. Schnoor, 95 AD3d 1144, 1144-1145; People v. Mendoza, 49 AD3d 559, 560). Thus, even if permitting the witness to testify under oath had constituted error, it would not require reversal (see People v. Mendoza, 49 AD3d at 560; People v. McIver, 15 AD3d 677, 678; People v. Morey, 224 AD2d 730, 731-732).The defendant’s contention that he received ineffective assistance of counsel is without merit (see People v. Baldi, 54 NY2d 137, 147).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Paul A. Lotz, ap, v. Westbourne Apartments, Inc. respondents def — (Index No. 64964/12)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), dated February 11, 2015, which denied that branch of his motion which was pursuant to CPLR 5015(a) to vacate an order of the same court dated January 23, 2014, granting the unopposed motion of the defendants Westbourne Apartments, Inc., and Hudson North Management, LLC, for summary judgment dismissing the complaint insofar as asserted against them, and thereupon to deny their motion for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order dated February 11, 2015, is reversed, on the law and in the exercise of discretion, with costs, that branch of the plaintiff’s motion which was pursuant to CPLR 5015(a) to vacate the order dated January 23, 2014, and thereupon to deny the motion of the defendants Westbourne Apartments, Inc., and Hudson North Management, LLC, for summary judgment dismissing the complaint insofar as asserted against them is granted, the order dated January 23, 2014, is vacated, and the motion of the defendants Westbourne Apartments, Inc., and Hudson North Management, LLC, for summary judgment dismissing the complaint insofar as asserted against them is denied.The plaintiff, a shareholder-tenant of the defendant Westbourne Apartments, Inc. (hereinafter the cooperative), commenced this action against, among others, the cooperative and the defendant Hudson North Management, LLC (hereinafter Hudson), the managing agent for the cooperative, seeking, inter alia, damages for breach of contract, negligence, breach of fiduciary duty, and violation of Business Corporation Law §501(c) arising out of, among other things, a dispute over renovations that he wanted to make to his premises in the cooperative. Thereafter, the cooperative and Hudson (hereinafter together the building defendants) moved for summary judgment dismissing the complaint insofar as asserted against them on the grounds that most of the plaintiff’s claims were barred by the statute of limitations and, in any event, all were without merit. The plaintiff did not oppose the motion. In an order dated January 23, 2014 (hereinafter the January 2014 order), the Supreme Court granted the building defendants’ unopposed motion for summary judgment dismissing the complaint insofar as asserted against them.Approximately eight months later, the plaintiff moved pursuant to CPLR 5015(a) to vacate the January 2014 order and thereupon to deny the building defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them, and to amend the caption to delete the defendant Karen Tassan Lotz, a/k/a Karen Tassan (hereinafter the plaintiff’s ex-wife), or, in the alternative, pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon her. The Supreme Court denied that branch of the plaintiff’s motion which was to vacate the January 2014 order, determining that he failed to provide a reasonable excuse for his delay in filing the motion.“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” (Hudson City Sav. Bank v. Bomba, 149 AD3d 704, 705, quoting New Century Mtge. Corp. v. Chimmiri, 146 AD3d 893, 894; Paul v. Weatherwax, 146 AD3d 792, 793).Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to vacate the January 2014 order. The plaintiff filed his motion within the one-year time frame contemplated by CPLR 5015(a)(1), and there is no indication that his delay in doing so was willful or part of a pattern of neglect to prosecute the action, or that the building defendants suffered any prejudice as a result (see Smith v. Pataki, 150 AD3d 460, 461).The plaintiff demonstrated a reasonable excuse for his default by submitting an affirmation of his attorney, which set forth a detailed explanation of the law office failure that prevented the plaintiff from timely opposing the building defendants’ motion for summary judgment (see CPLR 2005; Flagstar Bank, FSB v. Damaro, 145 AD3d 858, 860; Batra v. Electronic Land Servs., Inc., 136 AD3d 723, 724). The plaintiff also demonstrated that he had a meritorious opposition to the building defendants’ motion for summary judgment.Since the Supreme Court should have granted that branch of the plaintiff’s motion which was to vacate the January 2014 order, it also should have considered the merits of the plaintiff’s opposition to the building defendants’ motion for summary judgment and, thereupon, denied that motion (see Paul v. Weatherwax, 146 AD3d at 793-794; J & J Alarcon Realty Corp. v. Plantains Rest., Inc., 123 AD3d 886, 888). The building defendants failed to meet their prima facie burden of eliminating all material issues of fact with respect to either the cooperative or Hudson (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). To the extent that the building defendants relied on the statute of limitations, they waived that defense by failing to assert it in their answer or in a pre-answer motion to dismiss (see CPLR 3211[e]; MidFirst Bank v. Ajala, 146 AD3d 875; Fade v. Pugliani/Fade, 8 AD3d 612, 614).We decline to address any arguments relating to that branch of the plaintiff’s motion which was to amend the caption to delete the plaintiff’s ex-wife as a defendant or, in the alternative, pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon her. The Supreme Court did not address that branch of the motion, which remains pending and undecided (see Katz v. Katz, 68 AD2d 536, 542-543).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of Li Wong, ap, v. Fen Liu, res — (Docket Nos. V-716-11, V-718-11)Appeal from an order of the Supreme Court, Kings County (Esther M. Morgenstern, J.), dated November 14, 2016. The order dismissed, without a hearing, the father’s petition to modify the custody and visitation provisions of the parties’ judgment of divorce dated June 8, 2014, so as to award him sole legal and physical custody of the parties’ child.ORDERED that the order is affirmed, with costs.The parties’ judgment of divorce, dated June 8, 2014, incorporated the custody and visitation provisions of two orders of the Supreme Court, dated August 6, 2012, and December 14, 2012, respectively, awarding sole legal and physical custody of the parties’ child to the mother and liberal parenting time to the father. In May 2016, the father filed a petition to modify the custody and visitation provisions of the judgment of divorce so as to award him sole legal and physical custody of the child. By order dated November 14, 2016, the court dismissed the father’s petition without a hearing. The father appeals.To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing that there has been a change in circumstances such that the modification is necessary to ensure the continued best interests of the child (see Matter of Zall v. Theiss, 144 AD3d 831, 832; Matter of Connolly v. Walsh, 126 AD3d 691, 693; Matter of Graziani C.A. [Lisa A.], 117 AD3d 729, 730). In determining whether such a change has occurred, the court must consider the totality of the circumstances (see Matter of Zall v. Theiss, 144 AD3d at 832; Matter of Connolly v. Walsh, 126 AD3d at 693). A parent seeking a change of custody is not automatically entitled to a hearing. Rather, a parent must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Ruiz v. Sciallo, 127 AD3d 1205, 1206; Matter of Klotz v. O’Connor, 124 AD3d 662, 663; Matter of Gurewich v. Gurewich, 58 AD3d 628, 629).Here, the father failed to make an evidentiary showing of a change in circumstances between the issuance of the judgment of divorce and the filing of his petition. Accordingly, the Supreme Court properly dismissed the father’s petition without a hearing (see Matter of Castagnini v. Hyman-Hunt, 123 AD3d 926, 926; Matter of Fasano v. Battista, 68 AD3d 863, 864; Matter of Riedel v. Riedel, 61 AD3d 979; Matter of Miller v. Lee,        225 AD2d 778, 779).BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Arthur W. Sherwood, ap — (Ind. No. 15-00300)Richard L. Herzfeld, P.C., New York, NY, for appellant.David M. Hoovler, District Attorney, Goshen, NY (Nicholas D. Mangold of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J.), rendered June 23, 2016, convicting him of grand larceny in the third degree, 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., MILLER, DUFFY and LASALLE, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Jamille Spleen, ap — (Ind. No. 2998/12)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered March 25, 2015, convicting him of grand larceny in the fourth degree, after a nonjury trial, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that the evidence was legally insufficient to establish his identity as the perpetrator is unpreserved for appellate review, as he did not specify this ground in support of his motion to dismiss at trial (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492; People v. Hankerson, 149 AD3d 778). 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 it was legally sufficient to establish his identity as the perpetrator beyond a reasonable doubt (see People v. Lewis, 150 AD3d 1264; People v. Thomas, 146 AD3d 991, 992). Moreover, 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 nevertheless accord great deference to the factfinder’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 was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Marina Zaharatos ap, v. Michael A. Coscia, etc. res — (Index No. 512073/15)Law Office of Daniel L. Abrams, PLLC, New York, NY, for appellants.Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Brooklyn, NY (Michael A. Coscia, pro se, of counsel), for respondents.In an action, inter alia, to recover damages for conversion, the plaintiffs appeal from an order of the Supreme Court, Kings County (Ash, J.), dated January 4, 2017, which granted the defendants’ motion pursuant to CPLR 3211(a) and 3212 to dismiss the complaint.ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by the plaintiffs Alimos Corp. and Chrysa Corp., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs.In this action, the plaintiffs allege that the defendants knowingly and wrongfully accepted funds belonging to the plaintiffs Alimos Corp. and Chrysa Corp. (hereinafter together the corporate plaintiffs) in payment of personal legal fees of nonparty John Zaharatos. The defendants moved pursuant to CPLR 3211(a) and 3212 to dismiss the action on several grounds. As relevant here, the defendants contended that the individual plaintiff, Marina Zaharatos, lacked standing to commence this action in her individual capacity for wrongs against the corporate plaintiffs. The defendants also contended that Marina Zaharatos had no authority to commence this action on behalf of the corporate plaintiffs. The Supreme Court granted the defendants’ motion. We modify.“For a wrong against a corporation, a shareholder has no individual cause of action, though he loses the value of his investment” (Abrams v. Donati, 66 NY2d 951, 953; see Barbaro v. Spinelli, 121 AD3d 727, 728; Rodolico v. Rubin & Licatesi, P.C., 112 AD3d 608, 609-610). Here, Marina Zaharatos does not claim any injury as to herself, individually, and she expressly disclaims that she is bringing this action as a shareholder in a derivative capacity. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by Marina Zaharatos individually (see Rodolico v. Rubin & Licatesi, P.C., 112 AD3d at 609-610; cf. Hu v. Ziming Shen, 57 AD3d 616, 617).However, the Supreme Court should not have granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by the corporate plaintiffs. The defendants failed to establish any legal or factual ground for dismissal of the complaint with respect to the corporate plaintiffs. To the extent that the defendants sought dismissal under CPLR 3212, they failed to establish, prima facie, entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the corporate plaintiffs. Accordingly, that branch of the defendants’ motion should have been denied without regard to the sufficiency of the plaintiffs’ papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Kenneth Gottlieb, ap, v. Joanne Wynne, res — (Index No. 50649/16)In an action to recover damages for defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated September 22, 2016, as granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff and the defendant are residents of the same condominium complex located in Fishkill. In 2014 and 2015, two dogs owned by the plaintiff were the subject of formal complaints filed with the Justice Court of the Town of Fishkill. The complaints resulted in two orders directing the plaintiff to follow certain precautions when the dogs are outside. In a letter to condominium authorities dated January 19, 2016, the defendant stated that she had observed the plaintiff during the morning of January 8, 2016, walking with one dog “on the driveway and around the house. The dog was on a leash but did not have a muzzle on.” She further stated that she feared for her safety and the safety of her own dog, and that a few minutes later, she observed the plaintiff “come out again with his other dog. At this time, this dog was on a leash and had a muzzle on.” The defendant concluded the letter by stating that she was documenting the incident because it was her understanding that the plaintiff’s dogs were not to be “in the development unless they are muzzled.”In May 2016, the plaintiff commenced this action against the defendant to recover damages for defamation. Prior to interposing an answer, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint or, alternatively, pursuant to CPLR 3212 for summary judgment dismissing the complaint. She also moved pursuant to CPLR 8303-a for an award of sanctions. The Supreme Court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint and denied the other branches of the motion.“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Nelson v. Citywide Auto Leasing, Inc., 154 AD3d 863, 864; see Myers v. Schneiderman, 30 NY3d 1; Leon v. Martinez, 84 NY2d 83, 87-88). ”To state a cause of action alleging defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” (Rosner v. Amazon.com, 132 AD3d 835, 836-837). ”‘In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff’” (Matter of Konig v. CSC Holdings, LLC, 112 AD3d 934, 935, quoting Goldberg v. Levine, 97 AD3d 725, 725). ”The issue of ‘[w]hether particular words are defamatory presents a legal question to be resolved by the court’” (Jessel Rothman, P.C. v. Sternberg, 207 AD2d 438, 439, quoting Aronson v. Wiersma, 65 NY2d 592, 593). ”The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction” (Aronson v. Wiersma, 65 NY2d at 594).As a general rule, a cause of action predicated on alleged defamatory statements is subject to dismissal if the statements are insufficiently pleaded, constitute nonactionable opinion, or are subject to a qualified privilege defense (see Arvanitakis v. Lester, 145 AD3d 650, 652). ”‘A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege’” (Ferrara v. Bank, 153 AD3d 671, 673, quoting Stillman v. Ford, 22 NY2d 48, 53). This “common interest” privilege, however, may be overcome by a showing of common law malice, such as spite or ill will, or by a showing of actual malice, such as knowledge of the falsehood of a statement or reckless disregard for the truth (see Liberman v. Gelstein, 80 NY2d 429, 437-438).Here, the Supreme Court erred in determining that the defendant was shielded by the common interest privilege. The defendant raised this argument for the first time in her reply to the plaintiff’s opposition, and there is no indication that the plaintiff was afforded an opportunity to submit a surreply (see Gluck v. New York City Tr. Auth., 118 AD3d 667, 668) or that this new argument responded to allegations that the plaintiff raised for the first time in his opposition papers (see Citimortgage, Inc. v. Espinal, 134 AD3d 876, 879). Nevertheless, the court properly determined that the statements contained in the defendant’s letter were not reasonably susceptible of a defamatory meaning (see Aronson v. Wiersma, 65 NY2d at 594; Jessel Rothman, P.C. v. Sternberg, 207 AD2d at 439).The plaintiff’s remaining contentions either are without merit, are improperly raised for the first time on appeal, or have been rendered academic in light of our determination.Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Chambers, Roman and Iannacci, JJ.MATTER of Anthony D. (Anonymous). SCO Family of Services, res; Yonas S. (Anonymous), ap — (Docket No. B-6339-13)Appeal from an order of fact-finding and disposition of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated January 4, 2016. The order, after a hearing, determined that the father permanently neglected the subject child, terminated the father’s parental rights, and transferred guardianship and custody of the child to the petitioner for the purpose of adoption.ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.In this proceeding pursuant to Social Services Law §384-b and Family Court Act article 6 to terminate parental rights on the ground of permanent neglect, the father appeals from an order of fact-finding and disposition, which found that he permanently neglected the subject child, terminated his parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption.Contrary to the father’s contention, the petitioner established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen his relationship with the subject child, which efforts were specifically tailored to the father’s individual situation (see Social Services Law §384-b[3][g][i]; [4][d]; [7][a]; Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429; Matter of Sheila G., 61 NY2d 368, 380-381; Matter of Christopher S. [Eliabeth S.],155 AD3d 630, 632; Matter of Shaquanna D.M. [Shaquanna M.], 150 AD3d 1119, 1119). These efforts included making referrals to mental health, parenting, and housing services, encouraging the father’s compliance with the programs, and facilitating visitation (see Social Services Law §384-b[7][f]; Matter of Star Leslie W., 63 NY2d 136, 142; Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d at 429). Despite these efforts, the father failed to plan for the return of the child by failing, among other things, to take steps to acquire appropriate housing (see Matter of Davina R.M.R.L. [Jennifer A.], 123 AD3d 1126; Matter of Kevin L. [Jose L.L.], 102 AD3d 695, 696; Matter of Arthur C., 66 AD3d 1009, 1011). There was clear and convincing evidence of the father’s permanent neglect of the child (see Social Services Law §384-b[3][g]).Moreover, the Family Court properly determined that termination of the father’s parental rights, rather than the entry of a suspended judgment, was in the child’s best interests (see Family Ct Act §631; Matter of Hector V.P. [Mariand V.], 146 AD3d 889, 890; Matter of Chanel C. [Nanessa N.], 118 AD3d 826, 828-829).The father’s remaining contentions are without merit.RIVERA, J.P., CHAMBERS, ROMAN and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of Vincent L. Jackson, ap, v. Carol Wylie-Tunstall, res — (Docket Nos. V-10620-10/13B, V-10620-10/13C)Appeal from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated December 1, 2016. The order, insofar as appealed from, after a hearing, granted the father’s amended petition for visitation only to the extent of awarding him visitation with the parties’ child by means of written letters sent to the mother’s address.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The father, who is incarcerated, petitioned for visitation with the parties’ child. After a hearing on the father’s amended petition for visitation, the Family Court granted the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother’s address. The father appeals.The paramount concern when making a visitation determination is the best interests of the child under the totality of the circumstances (see Matter of LaChere v. Maliszweski, __ AD3d __, 2018 NY Slip Op 00147 [2d Dept 2018]; Matter of Torres v. Pascuzzi-Corniel, 125 AD3d 675). Since visitation determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the Family Court’s findings, which should not be set aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v. Wiltshire, 145 AD3d 776, 777; Matter of Pierre v. Dal, 142 AD3d 1021, 1023).Here, the child, who was 13 years old at the time of the hearing, had not seen the father since she was an infant and did not want any contact with him. The father did not seek visitation when a custody order was entered on his consent, and the record does not evince any substantial efforts on his part to form a relationship with the child. Moreover, the father’s family arranged a telephone call between the child and the father, with whom the child had not spoken since she was three or four years old, without the mother’s knowledge or consent, and the father wrote the child letters in which he made inappropriate comments about the child’s stepfather, with whom the child has a good relationship. Under these circumstances, the Family Court’s determination to grant the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother’s address had a sound and substantial basis in the record.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of Elisa v. (Anonymous), ap — Administration for Childrens Services, petitioner- res; Hung v. (Anonymous), res — (Proceeding No. 1)MATTER of Andy v. (Anonymous). Administration for Childrens Services, pet; Hung v. (Anonymous), res — (Proceeding No. 2)MATTER of Joanne v. (Anonymous), ap — Administration for Childrens Services, petitioner- res; Hung v. (Anonymous), res — (Proceeding No. 3)MATTER of Justin v. (Anonymous). Administration for Childrens Services, pet; Hung v. (Anonymous), res — (Proceeding No. 4) (Docket Nos. N-10252-16, N-10253-16, N-10254-16, N-10255-16)Appeal from an order of fact-finding of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated August 31, 2016. The order, insofar as appealed from, after a hearing, found that the father neglected the children Joanne V. and Elisa V.ORDERED that the order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.The petitioner commenced these proceedings pursuant to Family Court Act article 10, alleging that the father neglected the children Joanne V., who was then 17 years old, and Elisa V., who was then 15 years old, by inflicting excessive corporal punishment on them, and derivatively neglected the children Justin V. and Andy V. On May 25, 2016, Joanne and Elisa reported to their guidance counselor at school, an Administration for Children’s Services caseworker, and police, that the father had beat them with a softball bat the previous evening because Elisa had refused to give him access to her cell phone and laptop after their nonrespondent mother had found flyers about STD testing in their bedroom. Joanne later recanted her allegations, and testified at the fact-finding hearing that she and Elisa had hit each other with the softball bat and then blamed the father because he did not permit them to sleep over at their friends’ homes. The father and Elisa did not testify. By order of fact-finding entered September 14, 2016, the Family Court found that the father had neglected Joanne and Elisa by inflicting excessive corporal punishment on them, and derivatively neglected Justin and Andy. Joanne and Elisa appeal from so much of the order as found that the father neglected them.In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act §§1012[f][i]; 1046[b]; Nicholson v. Scoppetta, 3 NY3d 357, 368; Matter of Brianna M. [Corbert G.], 152 AD3d 600, 601). ”‘Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect’” (Matter of Amoria S. [Sharon M.M.], 155 AD3d 629, 630, quoting Matter of Paul M. [Tina H.], 146 AD3d 961, 962; see Matter of Jaivon J. [Patricia D.], 148 AD3d 890). A single incident of excessive corporal punishment may suffice to sustain a finding of neglect (see Matter of Amoria S. [Sharon M.M.], 155 AD3d 629; Matter of Tarelle J. [Walter J.], 152 AD3d 593, 595; Matter of Eliora B. [Kennedy B.], 146 AD3d 772; Matter of Era O. [Emmanuel O.], 145 AD3d 895, 897; Matter of Dalia G. [Frank B.], 128 AD3d 821, 823; Matter of Nurridin B. [Louis J.], 116 AD3d 770).Here, the Family Court properly determined that the petitioner had established by a preponderance of the evidence that the father neglected the children Joanne and Elisa by inflicting excessive corporal punishment on them (see Family Ct Act §1012[f]; Matter of Brianna M. [Corbert G.], 152 AD3d 600). The finding of neglect was supported by the testimony of the caseworker relaying Joanne’s and Elisa’s account of the incident, photographic and medical evidence documenting their injuries, and the testimony of the caseworker and a police detective that the father had admitted to hitting Joanne and Elisa with the softball bat, explaining that he had done so because Elisa would not provide the password to her cell phone, and because he was upset that Joanne “teams up” with Elisa (see Matter of Amoria S. [Sharon M.M.], 155 AD3d 629; Matter of Eliora B. [Kennedy B.], 146 AD3d 772). Moreover, the court did not err in rejecting Joanne’s in-court recantation. ”[T]he credibility issues raised by [a] child’s recantation [are] for Family Court to resolve in the exercise of its broad discretion” (Matter of Tiarra D. [Phillip C.], 124 AD3d 973, 974 [internal qutoation marks omitted]; see Matter of Dayannie I.M. [Roger I.M.], 138 AD3d 747; Matter of Harrhae Y. [Shy-Macca Ernestine B.], 112 AD3d 512, 513; Matter of Tristan R., 63 AD3d 1075; Matter of Kayla N., 41 AD3d 920). Here, the court’s determination that Joanne lacked credibility when she testified is entitled to deference (see Matter of Brianna M. [Corbert G.], 152 AD3d 600; Matter of Jallah J. [George J.], 118 AD3d 1000), and is supported by the record.The appellants’ contention that the Family Court should have dismissed the petition pursuant to Family Court Act §1051(c) is raised for the first time on appeal and, therefore, is not properly before this Court (see Matter of Eunice D. [James F.D.], 111 AD3d 627).BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Lazina Bartholomew, ap, v. Sears Roebuck and Co. res — (Index No. 1707/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated November 10, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff allegedly tripped and fell on the base of a directory sign at the defendants’ store in Brooklyn. Just prior to the incident, the plaintiff allegedly walked past the directory sign, then walked back and stopped in front of the sign to verify that she was heading in the right direction. She then allegedly tripped and fell on the base as she attempted to step away from the sign.The plaintiff commenced this action to recover damages for personal injuries, alleging that her injuries were caused by the defendants’ negligence. Thereafter, the defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion, determining that the base of the directory sign was open and obvious and not inherently dangerous. The plaintiff appeals.The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the base of the directory sign was open and obvious and not inherently dangerous (see Gerner v. Shop-Rite of Uniondale, Inc., 148 AD3d 1122; Lew v. Manhasset Pub. Lib., 123 AD3d 1096, 1097; Koepke v. Deer Hills Hardware, Inc, 118 AD3d 957; Casamassa v. Waldbaum’s Inc., 276 AD2d 659, 660). In opposition, the plaintiff failed to raise a triable issue of fact. The expert affidavit submitted by the plaintiff in opposition to the motion was speculative and conclusory, and insufficient to raise a triable issue of fact (see Zeolla v. Town of Stanford, 134 AD3d 1100, 1101; Rivas-Chirino v. Wildlife Conservation Socy., 64 AD3d 556, 558; Veccia v. Clearmeadow Pistol Club, 300 AD2d 472).Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Joseph Tansey, appellant-res, v. Nicholas Coscia, et al., def, SNMT Corp., etc., res-res — (Index No. 25282/11)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Hudson, J.), dated September 21, 2015, as denied that branch of his cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of General Obligations Law §11-101, and the defendant SNMT Corp. cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.In the early morning hours of June 12, 2010, the plaintiff allegedly was seriously injured when he was struck in the head by the defendant Nicholas Coscia at a bar owned by the defendant SNMT Corp. (hereinafter SNMT), in Smithtown. The plaintiff thereafter commenced this action to recover damages for personal injuries against, among others, SNMT and Coscia. The plaintiff asserted causes of action against SNMT to recover damages for negligence and a violation of General Obligations Law §11-101. SNMT moved for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-moved for summary judgment on the issue of liability. By order dated September 21, 2015, the Supreme Court denied the motion and the cross motion. The plaintiff appeals from so much of the order as denied that branch of his cross motion which was for summary judgment on the issue of liability on the cause of action to recover damages for a violation of General Obligations Law §11-101, and SNMT cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.General Obligations Law §11-101(1), known as the Dram Shop Act, makes a party who unlawfully sells alcohol to another person liable for injuries caused by reason of that person’s intoxication (see        Adamy v. Ziriakus, 92 NY2d 396, 400; Sherman v. Robinson, 80 NY2d 483, 486-487). Under Alcoholic Beverage Control Law §65, it is unlawful to furnish an alcoholic beverage to any “visibly intoxicated person” and any “person, actually or apparently, under the age of twenty-one years” (see Adamy v. Ziriakus, 92 NY2d at 400; Sherman v. Robinson, 80 NY2d at 486-487).Here, the Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the General Obligations Law §11-101 cause of action, and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on that cause of action. The submissions of both parties revealed the existence of triable issues of fact as to whether the bar served alcoholic beverages to Coscia while he was visibly intoxicated, whether the bar served alcoholic beverages to Coscia when it had knowledge or reasonable cause to believe that he was under 21 years of age, and whether there was some reasonable or practical connection between the service of alcohol to Coscia and the plaintiff’s injuries (see Lauinger v. Surf’s Out at Kismet, LLC, 134 AD3d 681, 682; Covert v. Wisla Corp., 130 AD3d 966, 967; Conklin v. Travers, 129 AD3d 765, 766; Morris v. Bianna, Inc., 69 AD3d 910).In addition, the Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the negligence cause of action. ”Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” (Walfall v. Bartini’s Pierre, Inc., 128 AD3d 685, 686 [internal quotation marks omitted]; see Kiely v. Benini, 89 AD3d 807, 808; Giambruno v. Crazy Donkey Bar & Grill, 65 AD3d 1190, 1192). Here, SNMT failed to establish, prima facie, that the attack on the plaintiff was not foreseeable (see Walfall v. Bartini’s Pierre, Inc., 128 AD3d at 686; Rishty v. DOM, Inc., 67 AD3d 662, 663; Boyea v. Aubin, 65 AD3d 736, 738).SNMT’s remaining contentions are improperly raised for the first time on appeal.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.Benny Caiola, ap, v. Fenestra America, LLC, res — (Index No. 505884/13)In an action to recover damages for breach of contract and breach of warranty, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated July 29, 2015, which granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.ORDERED that the order is affirmed, with costs.On August 22, 2005, the plaintiff and the defendant entered into a contract under which the defendant agreed to manufacture and deliver a number of custom-made wooden doors to the plaintiff’s home in Hampton Bays. The defendant did not install the doors. Sometime in 2006, the plaintiff noticed that water was leaking into his home through the doors. In 2012, following multiple conversations and exchanges of correspondence with the plaintiff, the defendant sent the plaintiff a letter criticizing the manner in which the doors had been installed and offering to, among other things, replace “the ocean-facing door units on the second floor” so that they could be re-installed in a different manner.In 2013, approximately seven years after the defect was discovered, the plaintiff commenced this action to recover damages for breach of contract and breach of warranty. The defendant subsequently moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In the order appealed from, the Supreme Court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” (Coleman v. Wells Fargo & Co., 125 AD3d 716, 716; see Beizer v. Hirsch, 116 AD3d 725, 725). If the moving defendant does so, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (see Celestin v. Simpson, 153 AD3d 656, 657; Coleman v. Wells Fargo & Co., 125 AD3d at 716). The applicable limitations period in this case is four years after the causes of action accrued (see UCC 82-725[1]; New York Methodist Hosp. v. Carrier Corp., 68 AD3d 830).Here, the defendant established, prima facie, that the plaintiff commenced this action more than four years after the causes of action accrued (see UCC 2-725[1], [2]; see also Schwatka v. Super Millwork, Inc., 106 AD3d 897, 898). In opposition, the plaintiff failed to raise a question of fact as to whether General Obligations Law §17-101 applied to renew the limitations period (see Romanelli v. Disilvio, 76 AD3d 553, 554-555; see also Boone Assoc., L.P. v. Leibovitz, 13 AD3d 267, 267; Sitkiewicz v. County of Sullivan, 256 AD2d 884, 886). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Rivera, J.P.; Chambers, Roman and Iannacci, JJ.PEOPLE, etc., res, v. Orlen Solizgalvez, ap — (Ind. No. 2323/15)Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Timothy Sini, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (John B. Collins, J.), rendered September 8, 2016, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Little, 127 AD3d 1235, 1235-1236; People v. Brown, 122 AD3d 133, 141) and, thus, does not preclude review of his excessive sentence claim. However, contrary to the defendant’s contention, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., CHAMBERS, ROMAN and IANNACCI, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Emilio Martinez, ap — (Ind. Nos. 254-10, 232-15)Appeals by the defendant from two judgments of the County Court, Suffolk County (Stephen Braslow, J.), both rendered April 30, 2015, convicting him of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192(2), driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192(3), aggravated unlicensed operation of a motor vehicle in the first degree, and violation of Vehicle and Traffic Law §1128(a) under Indictment No. 254-10, and driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192(2), driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192(3), resisting arrest, and violations of Vehicle and Traffic Law §§1128(a) and 1227 under Indictment No. 232-15, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.Contrary to the People’s contention, the defendant’s waiver of the right to appeal does not preclude him from making the arguments raised on appeal, as a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 NY2d 1, 10; People v. Broccoli, 152 AD3d 536; People v. Solis, 111 AD3d 654, 655; People v. Joseph, 103 AD3d 665). However, the defendant’s contention that his pleas were not knowingly, voluntarily, and intelligently entered because of the chronology in which the County Court conducted the plea allocution is unpreserved for appellate review (see CPL 220.60[3]; People v. Williams, 27 NY3d 212, 221-222; People v. Tyrell, 22 NY3d 359, 363) and, in any event, without merit (see generally People v. Sougou, 26 NY3d 1052, 1054-1055; People v. Conceicao, 26 NY3d 375, 382-383). The defendant’s contention that the court erred in accepting his plea because certain statements he made to the court negated elements of certain offenses is also unpreserved for appellate review. Accepting that his remarks triggered the court’s duty to conduct a further inquiry to ensure that the defendant’s plea was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 71 NY2d 662, 666), the plea minutes demonstrate that the court properly conducted such an inquiry at each instance. Having failed to move thereafter to withdraw his plea, the defendant waived any further challenge to the allocution and, thus, his contention is unpreserved for appellate review (see People v. McNair, 13 NY3d 821, 823). In any event, the record demonstrates that the defendant’s plea was knowingly, voluntarily, and intelligently entered (see People v. Lopez, 71 NY2d at 666; People v. Broccoli, 152 AD3d at 536).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Ernest Matyas, ap, v. New York City Department of Sanitation res — (Index No. 2384/15)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez-Salta, J.), dated October 28, 2016, which denied his motion for summary judgment on the issue of liability.ORDERED that the order is affirmed, with costs.The plaintiff alleged that he sustained personal injuries when he was struck by a New York City Department of Sanitation truck driven by the defendant Joseph Peter Lopez as he was crossing 50th Street at its intersection with 13th Avenue in Brooklyn. After commencing this personal injury action against the defendants, the plaintiff moved for summary judgment on the issue of liability, contending that Lopez’s negligence was the sole proximate cause of the accident. The Supreme Court denied the motion, and the plaintiff appeals.To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident (see Voskoboinyk v. Trebisovsky, 154 AD3d 997; Harth v. Reyes, 151 AD3d 1031; Phillip v. D&D Carting Co., Inc., 136 AD3d 18, 22). Where the movant has established his or her entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the movant’s comparative fault (see Harth v. Reyes, 151 AD3d at 1032; Zhu v. Natale, 131 AD3d 607, 608; Brown v. Mackiewicz, 120 AD3d 1172, 1173).Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence indicating that he looked both ways before entering a marked crosswalk with the traffic light in his favor, that he was not comparatively at fault in the happening of the accident, and that Lopez’s failure to yield the right-of-way to him was the sole proximate cause of the accident (see Voskoboinyk v. Trebisovsky, 154 AD3d at 998; Gomez v. Novak, 140 AD3d 831, 831-832; Zhu v. Natale, 131 AD3d at 608; Brown v. Mackiewicz, 120 AD3d at 1173; Qamar v. Kanarek, 82 AD3d 860, 861). In opposition, however, the defendants raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident by failing to exercise due care in crossing the street at a point other than a crosswalk (see Voskoboinyk v. Trebisovsky, 154 AD3d at 998; Sanclemente v. MTA Bus Co., 116 AD3d 688, 689; Billingy v. Blagrove, 84 AD3d 848, 849).Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.MATTER of Harn Food, LLC, ap, v. Paul M. DeChance, etc. res — (Index No. 8624/15)In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven dated April 8, 2015, which, after a hearing, denied the petitioner’s application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), dated March 16, 2016, which denied the petition and dismissed the proceeding.ORDERED that the judgment is affirmed, with costs.The petitioner owns vacant real property in the Town of Brookhaven containing two tax lots, which share a rear boundary and abut two parallel streets. The petitioner applied to the Town of Brookhaven for area variances to build two houses on the property, one abutting each street. The petitioner contends that it is entitled to area variances because the property consists of two single and separate tax lots. After a hearing, the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the BZA) denied the application, determining that the property consists of two merged tax lots, and that the petitioner would have reasonable use of the property by developing one house instead of two.The Supreme Court properly denied the petition and dismissed the proceeding seeking to annul the BZA’s determination. Local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Fuhst v. Foley, 45 NY2d 441, 444; Matter of Fuentes v. Planning Bd. of Vil. of Woodbury, 82 AD3d 883). Thus, a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence (see Matter of Ifrah v. Utschig, 98 NY2d 304, 308). A determination is rational if it has some objective factual basis (see Matter of Halperin v. City of New Rochelle, 24 AD3d 768, 772), and courts consider “substantial evidence” only to determine whether the record contains sufficient evidence to support the rationality of the determination being questioned (see Matter of Sasso v. Osgood, 86 NY2d 374, 384 n 2).Here, the petitioner contends that the two tax lots are single and separate because they share a common rear boundary and abut two parallel streets. Contrary to the petitioner’s contention, there is evidence in the record that the two tax lots have merged and are no longer single and separate (see Matter of Patrick v. Zoning Bd. of Appeals of Vil. of Russell Gardens, 130 AD3d 741, 742; Matter of Matherson v. Scheyer, 20 AD3d 425). The two lots have been held in common ownership since 1948, and the petitioner presented no evidence to suggest that the lots are now separate. As the Town Code of the Town of Brookhaven does not consider such adjoining lots as single and separate (see Code of the Town of Brookhaven §85-1[B]), the BZA rationally determined that the two lots have merged (see Matter of Sakrel, Ltd. v. Roth, 176 AD2d 732; cf. Matter of Berko v. Kern, 215 AD2d 475; Matter of Cicenia v. Zoning Bd. of Appeals of Town of Brookhaven, 157 AD2d 722). Accordingly, the property must comply with the lot area requirements provided for in the Town Code of the Town of Brookhaven (see Code of the Town of Brookhaven §85-2[C][1]).In considering an application for area variances, Town Law §267-b(3)(b) requires a zoning board to engage in a balancing test, weighing the benefit to the petitioner against the detriment to the health, safety, and welfare of the neighborhood or community if the area variances are granted (see Matter of Sasso v. Osgood, 86 NY2d at 384). In particular, a zoning board must consider: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance (Town Law §267-b[3][b])” (id. at 384).Here, there was evidence at the hearing that the proposal does not conform to the surrounding development pattern, in that only 5 lots (12 percent) of the 42 improved lots in the area conform to the lot area requested in the application, and only 7 lots (17 percent) conform to the lot frontage requested in the application. In 2007, an identical application for a property in the immediate area was denied by the BZA. There is no dispute that the requested variances are substantial deviations from the present zoning requirements. Thus, contrary to the petitioner’s contentions, the findings of the BZA were based on objective facts appearing in the record (see Matter of Halperin v. City of New Rochelle, 24 AD3d at 772).Furthermore, the petitioner will have a feasible alternative use of the property with construction of one house instead of two (see Matter of Ifrah v. Utschig, 98 NY2d at 309). The BZA properly considered this alternative as part of its analysis (see Town Law §267-b[3][b]; Matter of Ram v. Town of Islip, 21 AD3d 493). Having purchased the lots as one parcel of property under the existing A-2 Residential zoning requirements (see Matter of Sasso v. Osgood, 36 NY2d at 385), the petitioner is chargeable with knowledge of the applicable zoning restrictions and is bound by them (see Matter of Strohli v. Zoning Bd. of Appeals of Vil. of Montebello, 271 AD2d 612).Thus, the BZA properly weighed the appropriate factors and concluded that the detriment to the health, safety, and welfare of the neighborhood outweighed the benefit to the petitioner in granting the requested relief (see Matter of Sasso v. Osgood, 86 NY2d at 384). As the BZA’s determination was not illegal, arbitrary and capricious, or an abuse of discretion, it should be upheld (see Matter of Fuhst v. Foley, 45 NY2d at 444).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Mastro, Roman, Lasalle and Christopher, JJ.PEOPLE, etc., res, v. Alberto Rosa-Cruz, ap — (Ind. No. 1302/16)Paul Skip Laisure, New York, NY (Sean H. Murray of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel; Deanna Russo on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed July 19, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s purported waiver of the right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 267; People v. Brown, 122 AD3d 133, 137) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., MASTRO, ROMAN, LASALLE and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Leventhal, Miller and Brathwaite Nelson, JJ.MATTER of Joshua C. (Anonymous), ap — (Docket No. D-24861-15)Appeal from an order of disposition of the Family Court, Queens County (Robert I. Caloras, J.), dated December 12, 2016. The order adjudicated Joshua C. a juvenile delinquent, upon an order of fact-finding of that court dated August 26, 2016, finding that he had committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (four counts), and sexual misconduct, and placed him on probation for a period of 20 months.ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed an act which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree as alleged in count five of the petition, and substituting therefor a provision dismissing the fifth count of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.In this juvenile delinquency proceeding, the Family Court found, after a fact-finding hearing, inter alia, that the presentment agency established beyond a reasonable doubt that the appellant engaged in the conduct charged in counts three, four, five, six, nine, and twelve of the petition, and that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (four counts), and sexual misconduct. After a dispositional hearing, the Family Court issued an order of disposition which adjudicated the appellant a juvenile delinquent and placed him on probation for a period of 20 months.Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793), we find that it was legally sufficient to establish, beyond a reasonable doubt, the facts alleged in counts three, four, six, nine, and twelve of the petition, and that the appellant thereby committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (three counts), and sexual misconduct (see Penal Law §§130.50[3], 130.65[3], 130.20[2]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Malik B., 151 AD3d 842, 843; Matter of Brandon V., 133 AD3d 769, 769; Matter of Dashawn R., 120 AD3d 1250, 1251), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Malik B., 151 AD3d at 843; Matter of Dajahn M., 110 AD3d 812, 813; Matter of Danielle B., 94 AD3d 757, 758). The Family Court’s credibility determinations should not be disturbed unless clearly unsupported by the record (see Matter of Malik B., 151 AD3d at 843; Matter of Brandon V., 133 AD3d at 770). Upon reviewing the record, we are satisfied that the findings of fact as to these counts were not against the weight of the evidence.We find, however, that the evidence was legally insufficient to establish beyond a reasonable doubt the facts alleged in count five of the petition, acts which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree based on mouth-to-mouth contact. The complainant testified at the fact-finding hearing that the appellant “tried to kiss” him on the lips, but the complainant “pushed [the appellant's] face away.” Thus, we agree with the appellant that there was legally insufficient evidence to establish that the appellant’s mouth made contact with the complainant’s mouth (see Penal Law §130.65[3]; cf. Matter of Christian E., 68 AD3d 1109, 1110). Accordingly, the Family Court’s finding relating to count five of the petition alleging sexual abuse in the first degree must be vacated, and that count of the petition must be dismissed.Although the fact-finding order and the order of disposition must be modified in accordance with the foregoing, the matter need not be remitted to the Family Court for a new order of disposition, as there are sufficient grounds to find that the appellant committed acts which, if committed by an adult, would have constituted the felonies of criminal sexual act in the first degree and sexual abuse in the first degree (three counts), and the misdemeanor offense of sexual misconduct, for which the disposition imposed was appropriate and commensurate with his offenses (see Matter of Robert C., 67 AD3d 790, 792-793). Contrary to the appellant’s contention, the court providently exercised its discretion in adjudicating him a juvenile delinquent and placing him on probation for a period of 20 months instead of directing an adjournment in contemplation of dismissal. The appellant was not entitled to an adjournment in contemplation of dismissal merely because this was his first encounter with the law, or in light of the other mitigating circumstances that he cites (see Matter of Brian N., 133 AD3d 665). The disposition was appropriate in light of, among other factors, the seriousness of the offenses, the recommendations made in the probation report and a mental health evaluation, the appellant’s failure to take full responsibility for his actions, and his lack of expressed remorse (see Matter of Sheala H., 156 AD3d 882; Matter of Shemar G., 152 AD3d 591, 591; Matter of Brian N., 133 AD3d 665).The appellant’s contention that certain counts in the petition were multiplicitous is unpreserved for appellate review, as this issue was not raised before the Family Court (see Matter of Richard H., 144 AD3d 799, 800; Matter of Lavon S., 136 AD3d 1044, 1046). Under the circumstances, we decline to review it in the exercise of our interest of justice jurisdiction.SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Miller and Brathwaite Nelson, JJ.MATTER of Juan Armando Paca Secaira, ap, v. Miryam Marlene Caluna, res — (Docket No. V-5395-17)Bruno J. Bembi, Hempstead, NY, for appellant.Appeal from an order of the Family Court, Queens County (Craig Ramseur, Ct. Atty. Ref.), dated July 19, 2017. The order, without a hearing, dismissed the father’s custody petition.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 further proceedings on the petition consistent herewith, before a different Court Attorney Referee.In March 2017, the father filed a petition pursuant to Family Court Act article 6 for sole custody of the subject child for the purpose of obtaining an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC §1101(a)(27)(J). In April 2017, the mother executed a document consenting, inter alia, to “waive the issuance of service of process in this matter,” to the issuance of a finding that she abandoned the child, and to the appointment of the father as the child’s guardian. After the presiding Court Attorney Referee (hereinafter the Referee) advised the father that the waiver form was “not correct because the case that’s before the court is not a guardianship case,” the mother executed a new document consenting, among other things, to waive service of process and to the issuance of “Letters of Custody.” The Referee found that the new waiver form was inadequate because, inter alia, there was no statutory reference to “Letters of Custody.” In an order dated July 19, 2017, the Family Court dismissed the custody petition on the ground that the mother had not been timely served with the petition. The father appeals from that order.Under the circumstances of this case, the Family Court erred in dismissing the petition based on the father’s failure to timely serve the mother with the petition. The mother consented, inter alia, to “waive the issuance of service of process in this matter,” and since no substantial right of a party was prejudiced by the inartful language in the second waiver form, which referred to custody, the court should have disregarded any mistake and conducted a hearing on the petition (see CPLR 2001; Matter of Ramirez v. Palacios, 136 AD3d 666, 667-668; Matter of Gomez v. Sibrian, 133 AD3d 658, 659).Accordingly, we remit the matter to the Family Court, Queens County, for a hearing and a new determination thereafter of the custody petition and, if warranted, an order, inter alia, making specific findings so as to enable the child to petition for SIJS pursuant to 8 USC §1101(a)(27)(J). In light of certain remarks made by the Referee, we deem it appropriate that the hearing be held before a different Court Attorney Referee (see Matter of Hannah B. [Theresa B.], 108 AD3d 528, 531).SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.Olga L. Puckerin, etc., res, v. State of New York, ap — (Claim No. 121078)In a claim, inter alia, to recover damages for personal injuries, the defendant appeals from so much of an order of the Court of Claims (Marin, J.), dated August 26, 2015, as denied that branch of its motion which was to dismiss the claim to recover damages for conscious pain and suffering sustained by the claimant’s decedent as time-barred.ORDERED that the order is affirmed insofar as appealed from, with costs.In 2009, the claimant’s decedent, who was then hospitalized at Creedmoor Psychiatric Facility (hereinafter Creedmoor), was transferred by Creedmoor to a New York State-sponsored family care home. The decedent remained a resident of the family care home until July 23, 2011, when he died of “hyperthermia due to environmental exposure.” Pursuant to a “New York State Department of Mental Hygiene Family Caretaker Agreement,” the decedent “continue[d] to be a legal patient” of Creedmoor while he was a resident of the family care home.On March 19, 2012, the claimant, as administrator of the decedent’s estate, commenced this action, inter alia, to recover damages for the decedent’s conscious pain and suffering. It was claimed that the decedent was left in a room without air conditioning or a fan, causing him to suffer from hyperthermia which ultimately resulted in his death. The defendant moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the claim to recover damages for the decedent’s conscious pain and suffering on the ground that it was untimely. The Court of Claims denied that branch of the defendant’s motion, and the defendant appeals.Court of Claims Act §10(3) requires that a claim to recover damages for personal injuries caused by the negligence of an officer or employee of the state must be served upon the attorney general within 90 days after the accrual of such claim. However, pursuant to Court of Claims Act §10(5), “[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.”Here, the decedent was hospitalized for psychiatric reasons and required psychiatric treatment from 2009 until the time of his death. Thus, the decedent was under a legal disability until his death (see Boland v. State of New York, 30 NY2d 337, 342), and the claimant, as administrator of the decedent’s estate, may properly assert the two-year tolling provision based on the decedent’s disability when filing a claim to recover damages for the conscious pain and suffering allegedly experienced by the decedent prior to death (see Barrett v. State of New York, 161 AD2d 61, 62-63, affd 78 NY2d 1111; see also Kealos v. State of New York, 150 AD3d 1211, 1211-1213; cf. Baez v. New York City Health & Hosps. Corp., 80 NY2d 571). Accordingly, the Court of Claims properly concluded that, pursuant to Court of Claims Act §10(5), the claim for the decedent’s conscious pain and suffering was timely commenced.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Scheinkman, P.J.; Leventhal, Miller and Brathwaite Nelson, JJ.MATTER of Estrella M. Llama, res, v. Ernest X. Gorriti, ap — (Docket Nos. U-14980-07/15AD, U-14980-07/15AE)Ernest X. Gorriti, Yonkers, NY, appellant pro se.John M. Nonna, County Attorney, White Plains, NY (James Castro-Blanco and Allison E. Burke of counsel), for respondent.Appeal from an order of disposition of the Family Court, Westchester County (Rachel Hahn, J.), dated January 10, 2017. The order of disposition, after a hearing, confirmed so much of an order of that court (Esther R. Furman, S.M.), dated June 28, 2016, made after a hearing, as determined that the father willfully violated a prior order of child support.ORDERED that the order of disposition is affirmed, without costs or disbursements.The mother filed two petitions alleging that the father willfully violated a prior order of child support. After a hearing, the Support Magistrate determined that the father willfully violated the child support order. In an order of disposition dated January 10, 2017, the Family Court confirmed the Support Magistrate’s determination that the father willfully violated the child support order. The father appeals from the order of disposition.The mother presented prima facie evidence of the father’s willful violation of the child support order with proof that the father failed to pay child support as ordered (see Family Ct Act §454[3][a]; Matter of Kretkowski v. Pasqua, 147 AD3d 836, 837). The testimony of a representative of the Support Collections Unit established that the father had not made the required payments. The burden of going forward then shifted to the father to rebut the prima facie showing of a willful violation by offering some competent, credible evidence of his inability to pay (see Matter of Powers v. Powers, 86 NY2d 63, 69-70). The father failed to sustain this burden (see Matter of Myles v. Turner, 137 AD3d 1038, 1039). Thus, the Family Court properly confirmed the Support Magistrate’s determination that the father willfully violated the child support order.The father’s contentions regarding his former employer were not raised before the Support Magistrate and, accordingly, are not properly before this Court (see Gorelik v. Gorelik, 85 AD3d 856, 857). Furthermore, the father failed to appeal from an order dated September 22, 2016, which denied his objections to so much of an order of the Support Magistrate as dismissed his cross petition for a downward modification of his child support obligation, and therefore, the father’s contentions concerning the dismissal of his cross petition are not properly before this Court (see CPLR 5515[1]; Matter of Tara C. [Sonia C.], 106 AD3d 735).SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.JR Factors, Inc., ap, v. Astoria Equities, Inc., et al., res — (Index No. 58519/11)Thomas F. Farley, P.C., White Plains, NY, for appellant.Adam E. Mikolay, P.C., East Meadow, NY, for respondents.Appeals from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated July 23, 2015, and an amended judgment of that court dated August 28, 2015. The order, insofar as appealed from, denied the plaintiff’s motion pursuant to CPLR 4404(b) to set aside a decision of that court dated April 22, 2015, made after a nonjury trial. The amended judgment, upon the order and upon an amended decision of that court dated July 23, 2015, is in favor of the defendants and against the plaintiff dismissing the complaint and awarding the defendants damages on their counterclaim in the principal sum of $63,000.ORDERED that the appeals are dismissed, with one bill of costs.It is the obligation of the appellant to assemble a proper record on appeal (see Elgart v. Berezovsky, 123 AD3d 970, 971; Green Tree Credit, LLC v. Jelks, 120 AD3d 1300; Matter of George v. Kings County Hosp. Ctr., 119 AD3d 569). Here, the record filed by the appellant does not contain the summons and complaint in this action. The record also does not contain the entire transcript of the trial. In particular, the record is missing a portion of the transcript of the testimony of one of the plaintiff’s witnesses and the entire transcript of the testimony of a witness called by the defense. As the record is inadequate to enable this Court to render an informed decision on the merits of the appeals, the appeals must be dismissed (see Elgart v. Berezovsky, 123 AD3d at 971; Green Tree Credit, LLC v. Jelks, 120 AD3d at 1300; Matter of George v. Kings County Hosp. Ctr., 119 AD3d at 569).AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.PEOPLE, res, v. Joseph Rodriguez, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated November 23, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’” (People v. Warren, 152 AD3d 551, 551, quoting People v. Lathan, 129 AD3d 686, 687; see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). Only if this showing is made does the SORA court have the “discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender’s risk of reoffense and danger to the community” (People v. Wyatt, 89 AD3d at 128; see People v. Rocano-Quintuna, 149 AD3d 1114, 1115; People v. Kohout, 145 AD3d 922).Although “advanced age” may constitute a basis for a downward departure (Guidelines at 5; see People v. Alvarez, 153 AD3d 645; People v. Santiago, 137 AD3d 762, 764-765), the defendant, who committed the subject offense when he was 58 years old, failed to demonstrate that his age at the time of the SORA determination, 61 years old, “resulted in the over-assessment of his risk to public safety” (People v. Wyatt, 89 AD3d at 129) and, thus, did not meet his burden of proof in establishing that this “mitigating circumstance actually exist[ed] in the case at hand” (People v. Gillotti, 23 NY3d at 861; see People v. Alvarez, 153 AD3d at 645; People v. Rocano-Quintuna, 149 AD3d at 1114; People v. Benoit, 145 AD3d 687). Furthermore, while a defendant’s response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Washington, 84 AD3d 910, 911), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Velasquez, 145 AD3d 924, 924; People v. Wallace, 144 AD3d 775, 776; People v. Figueroa, 138 AD3d 708, 709).Since the factors identified by the defendant were either adequately taken into account by the Guidelines, or were not proven by a preponderance of the evidence, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive risk level (see People v. Rocano-Quintuna, 149 AD3d at 1114; People v. Santiago, 137 AD3d at 765; People v. Wyatt, 89 AD3d at 128).RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Bridget Mazurek, ap, v. Paul Schoppmann, et al., res — (Index No. 101541/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated June 21, 2016, which granted the defendants’ motion for summary judgment dismissing the amended complaint.ORDERED that the order is affirmed, with costs.On September 3, 2014, the plaintiff, while ascending the front exterior staircase of a two-family residence owned by the defendants, allegedly slipped on a hamburger wrapper and fell. At the time of the accident, the plaintiff was a tenant at the premises. The plaintiff commenced this personal injury action against the defendants, alleging, inter alia, that they were negligent in their ownership and maintenance of the premises. The defendants moved for summary judgment dismissing the amended complaint. The plaintiff opposed the motion, arguing that there were certain building code violations related to the lack of a handrail on the subject staircase, and that the lack of a handrail was a proximate cause of the accident and her resulting injuries. The Supreme Court granted the defendants’ motion.On their motion, the defendants established their prima facie entitlement to judgment as a matter of law by establishing that they did not create or have actual or constructive notice of the alleged dangerous condition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). In opposition, the plaintiff failed to raise a triable issue of fact in this regard.A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint (see Mezger v. Wyndham Homes, Inc., 81 AD3d 795, 796-797). As such, the Supreme Court did not err in declining to consider the plaintiff’s new theory of recovery, raised for the first time in opposition to the defendants’ motion, based on alleged building code violations related to the lack of a handrail on the subject staircase, since this theory was not pleaded in her amended complaint or set forth in her bill of particulars.The plaintiff’s remaining contention is improperly raised for the first time on appeal, and not properly before this Court (see Viera v. WFJ Realty Corp., 140 AD3d 737, 739).Accordingly, the Supreme Court correctly granted the defendants’ motion for summary judgment dismissing the amended complaint.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Prime Alliance Group, Ltd. ap, v. Affiliated FM Insurance Company, def, Praxis International Corporation res — (Index No. 601329/14)In an action, inter alia, to recover damages for breach of an insurance policy, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered June 23, 2015, as granted the motion of the defendant Praxis International Corporation pursuant to CPLR 3211(a)(7) to dismiss the complaint and all cross claims insofar as asserted against it, and (2) so much of an order of the same court entered September 23, 2015, as granted the motion of the defendants HUB International Northeast Limited, HUB International Southeast Agency Limited, and HUB International Insurance Services, Inc., for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the appeal from so much of the order entered June 23, 2015, as granted that branch of the motion of the defendant Praxis International Corporation which was pursuant to CPLR 3211(a)(7) to dismiss all cross claims insofar as asserted against it is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144; see also Estate of Goldstein v. Kingston, 153 AD3d 1235; Chuk Hwa Shin v. Correale, 142 AD3d 518); and it is further,ORDERED that the order entered June 23, 2015, is reversed insofar as reviewed, on the law, and that branch of the motion of the defendant Praxis International Corporation which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is denied; and it is further,ORDERED that the order entered September 23, 2015, is reversed insofar as appealed from, on the law, and the motion of the defendants HUB International Northeast Limited, HUB International Southeast Agency Limited, and HUB International Insurance Services, Inc., for summary judgment dismissing the complaint insofar as asserted against them is denied; and it is further,ORDERED that one bill of costs is awarded to the appellants, payable by the respondents appearing separately and filing separate briefs.The plaintiffs commenced this action against, among others, Affiliated FM Insurance Company (hereinafter Affiliated), asserting that Affiliated breached an insurance policy that it had issued to the plaintiffs by denying coverage of a property damage claim for the plaintiffs’ property located at 40 Rector Street in Manhattan. The plaintiffs asserted additional causes of action alleging that their retail insurance broker, Praxis International Corporation (hereinafter Praxis), and their wholesale insurance brokers, HUB International Northeast Limited, HUB International Southeast Agency Limited, and HUB International Insurance Services, Inc. (hereinafter collectively the HUB defendants), failed to procure the insurance coverage that the plaintiffs had requested. The plaintiffs ultimately reached a settlement with Affiliated and discontinued the action insofar as asserted against that defendant. Praxis thereafter moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance. In the first order appealed from, entered June 23, 2015, the Supreme Court, among other things, granted that branch of Praxis’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.The HUB defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them relying on, inter alia, the same ground cited by Praxis in support of its motion, that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance. The HUB defendants also argued that summary judgment was warranted because the plaintiff was not in privity of contract with them. In the second order appealed from, entered September 23, 2015, the Supreme Court, among other things, granted the HUB defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88; see Sokol v. Leader, 74 AD3d 1180, 1181). Although a court can consider evidentiary material submitted by a defendant in support of a motion to dismiss, the motion should not be granted unless it has been shown through this evidence “that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275; see Mace v. Tunick, 153 AD3d 689, 690).Here, contrary to the Supreme Court’s determination, the validity of Affiliated’s denial of the plaintiffs’ claim for property damage remains undecided, notwithstanding the fact that the plaintiffs settled this action with respect to Affiliated (see Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 65 AD3d 865). The complaint alleges that the denial was based on actions taken by Praxis and the HUB defendants. Should the plaintiffs prevail on their causes of action against Praxis and the HUB defendants, any damages they recover must necessarily be reduced by the amount of the settlement from Affiliated, in order to avoid a double recovery (see Singelton Mgt. v. Compere, 243 AD2d 213, 218). The court also erred to the extent that it determined that the plaintiffs’ causes of action against Praxis were barred by judicial estoppel (see New Hampshire v. Maine, 532 US 742, 749-750; Davis v. Wakelee, 156 US 680, 689; Barker v. Amorini, 121 AD3d 823, 824). Since Praxis did not show that a material fact alleged in the complaint “is not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v. Ginzburg, 43 NY2d at 275), the court should have denied that branch of Praxis’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.The Supreme Court also should have denied the HUB defendants’ separate motion for summary judgment dismissing the complaint insofar as asserted against them. Their motion was also based on the incorrect premise that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance (see Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc., 65 AD3d 865). Furthermore, the HUB defendants failed to tender evidentiary proof in admissible form establishing that they were entitled to judgment as a matter of law on the ground that they owed no duty to the plaintiffs because they lacked privity with them (see Zuckerman v. City of New York, 49 NY2d 557, 562; Chandler v. H.E. Yerkes and Associates, Inc., 784 F Supp 119, 123-124 [SD NY]). Inasmuch as the HUB defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, the Supreme Court should have denied their motion, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Neal Bidnick, appellant-res, v. Grand Lodge of Free & Accepted Masons of the State of New York, res-ap, James E. Sullivan, et al., res — (Index No. 4463/14)In an action, inter alia, to recover damages for breach of contract and defamation, (1) the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered April 23, 2015, as granted those branches of the defendants’ motion pursuant to CPLR 3211(a)(7) which were to dismiss the cause of action alleging breach of contract and to dismiss the cause of action alleging defamation insofar as asserted against the individual defendants, and (2) the defendant Grand Lodge of Free & Accepted Masons of the State of New York cross-appeals from so much of the same order as denied that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging defamation insofar as asserted against it.ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging defamation insofar as asserted against the defendant Grand Lodge of Free & Accepted Masons of the State of New York, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof granting that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging defamation insofar as asserted against the individual defendants in their individual capacities, and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof granting that branch of the defendants’ motion pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging breach of contract, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff had been a member of the defendant Grand Lodge of Free & Accepted Masons of the State of New York (hereinafter the Grand Lodge) for approximately 35 years when he was found guilty, after Masonic trials, on two sets of charges of violating the terms of his membership with the Grand Lodge. The plaintiff appealed to the Masonic Commission of Appeals, and both decisions were reversed. Both reversals were subsequently put to a vote at the Grand Lodge’s annual meeting, at which time the finding of guilty on one set of charges was reinstated, and the plaintiff was expelled from the Grand Lodge.The plaintiff commenced this action against the Grand Lodge and the individual defendants, both in their individual and representative capacities. Insofar as relevant to these appeals, the plaintiff alleged, inter alia, breach of contract in relation to his wrongful expulsion from the Grand Lodge, and defamation in that the individual defendants allegedly made knowingly and intentionally false statements to members of the Grand Lodge and others, orally and in writing, that the plaintiff had engaged in misappropriation of funds. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in its entirety. The Supreme Court granted the motion, except for the branch of the motion which was to dismiss the defamation cause of action insofar as asserted against the Grand Lodge. The plaintiff appeals from the dismissals of the breach of contract cause of action, as well as the defamation cause of action insofar as asserted against the individual defendants, and the Grand Lodge cross-appeals from the denial of the branch of the motion which sought to dismiss the defamation cause of action insofar as asserted against it.We note that the Supreme Court dismissed the complaint insofar as asserted against the individual defendants based on section 3-a of the Benevolent Orders Law, which provides, in relevant part, that “[i]n the absence of fraud or bad faith, the members, officers and trustees of a lodge… or other organization, enumerated in section two of the benevolent orders law, shall not be personally liable for its debts, obligations or liabilities.” This was error.“In the context of a motion to dismiss pursuant to CPLR 3211, the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference. Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [citation omitted]). Pursuant to CPLR 3211(a)(7), the court must determine whether the plaintiff can succeed upon any reasonable view of the facts stated in the complaint (see Sokol v. Leader, 74 AD3d 1180; Board of Educ. of City School Dist. of City of New Rochelle v. County of Westchester, 282 AD2d 561). Here, the complaint makes sufficient allegations of fraud or bad faith to survive dismissal as against the individual defendants based on the Benevolent Orders Law. Nevertheless, and for the different reasons more fully set out immediately below, the Supreme Court properly dismissed the defamation cause of action insofar as asserted against the individual defendants acting in their representative capacities.Actions against unincorporated associations, whether for breaches of agreements or for tortious wrongs, are limited to cases where the individual liability of every single member can be alleged and proven (see Martin v. Curran, 303 NY 276, 282; cf. Knopp v. Sherwood, 239 App Div 475, affd 265 NY 591). The Martin rule “bars all actions against an unincorporated voluntary membership association, and bars claims against the officers of such an association in their representative capacities where there is no allegation that the members of the association authorized or ratified the wrongful conduct complained of” (Cablevision Sys. Corp. v. Communications Workers of Am. Dist. 1, 131 AD3d 1082, 1083).Here, the plaintiff made no factual allegations in the complaint or in opposition to the motion to dismiss to indicate that all members of the Grand Lodge did in fact ratify the allegedly defamatory statements. Accordingly, as regards the defamation cause of action, the Supreme Court erred in failing to dismiss it insofar as asserted against the Grand Lodge. However, based on the Martin rule, that cause of action was properly dismissed insofar as asserted against the individual defendants acting in their representative capacities.We reach a different result, however, with respect to the defamation cause of action insofar as asserted against the individual defendants acting in their individual capacities. Indeed, the Martin rule does not purport to immunize individual members of an unincorporated association, acting in their individual capacities, from the consequences of their own tortious conduct (see Cablevision Sys. Corp. v. Communications Workers of Am. Dist. 1, 131 AD3d 1082). Here, for purposes of opposing a pre-answer motion to dismiss, the complaint sufficiently alleges that the individual defendants made defamatory statements regarding the plaintiff, and, on this bare bones record, it is premature to determine whether the defendants’ claims of absolute or qualified immunity have merit.Moreover, the Martin rule does not preclude breach of contract causes of action against unincorporated associations and their officers acting in their representative capacities based on an allegedly wrongful expulsion from the association (see Madden v. Atkins, 4 NY2d 283; see also Palladino v. CNY Centro, Inc., 23 NY3d 140). Here, the complaint, liberally construed in favor of the plaintiff, makes out a cause of action alleging breach of contract (see Guggenheimer v. Ginzburg, 43 NY2d 268, 275), based on the plaintiff’s allegedly wrongful expulsion from the Grand Lodge (see generally Polin v. Kaplan, 257 NY 277, 281; Caposella v. Pinto, 265 AD2d 362).The parties’ remaining contentions are without merit.Accordingly, the branch of the defendants’ motion which was to dismiss the breach of contract cause of action must be denied, and the branch of the defendants’ motion which was to dismiss the defamation cause of action must be granted as to the Grand Lodge and the individual defendants acting in their representative capacities, and otherwise denied.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Maria De Los Angeles Baez ap, v. Willow Wood Associates, LP, res — (Index No. 1635/14)Appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered June 16, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.The plaintiff Maria De Los Angeles Baez (hereinafter the injured plaintiff) allegedly was walking in the parking lot of a shopping center owned by the defendant when her foot came into contact with a hole in the parking lot, causing her to trip and fall. The injured plaintiff, and her husband suing derivatively, subsequently commenced this action. Following joinder of issue and the completion of discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal.A defendant who moves for summary judgment in a trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Belton v. Gemstone HQ Realty Assoc., LLC, 145 AD3d 840, 841; Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d 1037; Campbell v. New York City Tr. Auth., 109 AD3d 455, 456; Levine v. Amverserve Assn., Inc., 92 AD3d 728, 729). 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). To meet its burden on the issue of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall (see Sartori v. JP Morgan Chase Bank, N.A., 127 AD3d 1157; Campbell v. New York City Tr. Auth., 109 AD3d at 456; Levine v. Amverserve Assn., Inc., 92 AD3d at 729; Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598, 598-599).In support of its motion, the defendant failed to demonstrate that it lacked constructive notice of the hazardous condition which allegedly caused the injured plaintiff’s fall. The defendant relied upon, inter alia, the deposition testimony and affidavit of the property manager, which merely referred to her general inspection practices for the parking lot and provided no evidence regarding any specific inspection of the area in question prior to the injured plaintiff’s fall (see Rodriguez v. Shoprite Supermarkets, Inc., 119 AD3d 923, 924; Rogers v. Bloomingdale’s, Inc., 117 AD3d 933, 934; Mahoney v. AMC Entertainment, Inc., 103 AD3d 855, 856).The defendant’s failure to establish its prima facie entitlement to judgment as a matter of law required the denial of its motion, regardless of the sufficiency of the plaintiffs’ papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).In light of our determination, the plaintiffs’ remaining contention has been rendered academic.Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Cohen, J.P.; Miller, Lasalle and Brathwaite Nelson, JJ.MATTER of Denis P. Kelleher ap, v. New York State Department of Environmental Conservation, res — (Index No. 2631/09)In a proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Environmental Conservation dated December 24, 2008, which denied the petitioners’ application for a tidal wetlands permit, or, in the alternative, to direct the respondent to commence condemnation proceedings to acquire the petitioners’ property, the petitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Garguilo, J.), dated June 24, 2015, as denied that branch of the petition which was to direct the respondent to commence condemnation proceedings to acquire the petitioners’ property.ORDERED that the judgment is affirmed insofar as appealed from, with costs.The real property at issue on this appeal is a parcel consisting of 17,334 square feet located on Westminster Road, in the Town of Southampton, and bordering Calf Creek, a tributary of Mecox Bay. On December 24, 2008, the petitioners’ application to construct a single-family house with accompanying septic system on the property was denied by the Department of Environmental Conservation of the State of New York (hereinafter the DEC). In 2009, the petitioners commenced this CPLR article 78 proceeding to review the DEC’s determination. The proceeding was transferred to this Court, which granted the DEC’s motion to remit the matter to the Supreme Court, Suffolk County, “for further proceedings pursuant to ECL 25-0404″ (Appellate Division Docket No. 2009-09938). Pursuant to that statute, if the Supreme Court finds, inter alia, that the determination of the DEC “constitutes the equivalent of a taking without compensation,” it may, among other things, require the DEC to acquire the property under the power of eminent domain. After a hearing, the Supreme Court found that the DEC’s determination did not constitute a taking without just compensation and denied the petition in its entirety. The petitioners appeal from so much of the judgment as denied that branch of the petition which was to direct the DEC to commence condemnation proceedings to acquire the property. We affirm insofar as appealed from.The Supreme Court correctly determined that the DEC’s denial of the petitioners’ application did not result in a taking of the petitioners’ property without just compensation, since the petitioners failed to demonstrate that, at the time they acquired title, they possessed the right to develop and use the property in the manner in which they proposed (see Matter of Gazza v. New York State Dept. of Envtl. Conservation, 89 NY2d 603, 617; Matter of Brotherton v. Department of Envtl. Conservation of State of N.Y., 252 AD2d 498, 499).The petitioners’ remaining contentions are without merit.COHEN, J.P., MILLER, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.PEOPLE, res, v. Jeffrey Hallett, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Mondo, J.), dated May 29, 2015, 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.Contrary to the defendant’s contention, he was not entitled to a downward departure from his presumptive risk level. ”A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’” (People v. Warren, 152 AD3d 551, 551, quoting People v. Lathan, 129 AD3d 686, 687; see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).While a defendant’s response to treatment may qualify as a ground for a downward departure where the response is exceptional (see People v. Washington, 84 AD3d 910, 911), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (see People v. Velasquez, 145 AD3d 924, 924; People v. Wallace, 144 AD3d 775, 776, affd 26 NY3d 1129; People v. Figueroa, 138 AD3d 708, 709). Accordingly, the Supreme Court properly denied his request for a downward departure and designated him a level three sex offender.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.PEOPLE, res, v. Nazario Morales, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Sullivan, J.), dated August 22, 2013, 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 Supreme Court properly denied the defendant’s request for a downward departure from the presumptive risk level. ”A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’” (People v. Warren, 152 AD3d 551, 551, quoting People v. Lathan, 129 AD3d 686, 687; see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to identify a proper mitigating factor at the SORA hearing (see People v. Warren, 152 AD3d at 551; People v. Rodriguez, 145 AD3d 489, 490; People v. Roldan, 140 AD3d 411, 412).Contrary to the defendant’s contentions, his scores on risk assessments known as the Static-99 and Static-99R are not by themselves sufficient for a downward departure because, unlike the SORA Risk Assessment Instrument, the Static-99 and Static-99R assessments do not take into account the nature of the sexual contact with the victim or the potential harm that could be caused in the event of reoffense (see People v. Rodriguez, 145 AD3d at 490; People v. Roldan, 140 AD3d at 412). The defendant’s contentions that he is entitled to a downward departure based upon mitigating circumstances, including, inter alia, his age upon release and his successful rehabilitation while incarcerated, are unpreserved for appellate review, as he failed to raise them at the SORA hearing (see People v. Uphael, 140 AD3d 1143, 1144-1145; People v. Rosales, 133 AD3d 733; People v. Angelo, 3 AD3d 482).RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.PEOPLE, etc., res, v. Compton Cole, ap — (Ind. Nos. 9180/13, 9631/13)Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.Appeals by the defendant from two judgments of the Supreme Court, Kings County (Matthew J. D’Emic, J.), both rendered April 28, 2014, convicting him of criminal contempt in the first degree under Indictment No. 9180/13 and criminal contempt in the first degree under Indictment No. 9631/13, upon his pleas of guilty, and imposing sentences.ORDERED that the matter is remitted to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty in accordance herewith, and for a report on any such motion, and the appeals are held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.In People v. Peque (22 NY3d 168), the Court of Appeals held that, as a matter of “fundamental fairness,” due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty (id. at 193). A defendant seeking to vacate a plea based on this defect must demonstrate that there is a “reasonable probability” that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation (id. at 176).Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant’s pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order (see People v. Lopez-Alvarado, 149 AD3d 981; People v. Agramonte, 148 AD3d 923, 924; People v. Dennis, 140 AD3d 789, 790; People v. Odle, 134 AD3d 1132, 1133), and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (People v. Peque, 22 NY3d at 176; see People v. Agramonte, 148 AD3d at 924; People v. Dennis, 140 AD3d at 790; People v. Odle, 134 AD3d at 1133; People v. Al-Muwallad, 121 AD3d 1123, 1124; People v. Charles, 117 AD3d 1073, 1073-1074). In its report to this Court, the Supreme Court shall state whether the defendant moved to vacate his pleas of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing (see People v. Peque, 22 NY3d at 200-201; People v. Lopez-Alvarado, 149 AD3d at 982).RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Scheinkman, P.J.; Mastro, Roman, Lasalle and Christopher, JJ.PEOPLE, etc., res, v. Victor Hernandez, ap — (Ind. Nos. 1708/12, 5323/12)Appeals by the defendant, as limited by his motion, from two sentences of the Supreme Court, Kings County (William Miller, J.), both imposed May 7, 2015, upon his pleas of guilty, on the ground that the sentences were excessive.ORDERED that the sentences are affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 339-342; People v. Ramos, 7 NY3d 737, 738). The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentences imposed were excessive (see People v. Lopez, 6 NY3d 248, 255-256).SCHEINKMAN, P.J., MASTRO, ROMAN, LASALLE and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Lourdes Castillo, plf, v. Port Authority of New York and New Jersey, respondent def, Cristi Cleaning Service Corp. ap — (Index No. 22684/11)James M. Begley, New York, NY (Cheryl N. Alterman of counsel), for respondent.In an action to recover damages for personal injuries, the defendant Cristi Cleaning Service Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (D. Hart, J.), entered December 16, 2015, as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it, and the defendant Five Star Parking separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against it.ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motion of the defendant Cristi Cleaning Service Corp. which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provisions thereof denying those branches of the motion of the defendant Five Star Parking which were for summary judgment dismissing the amended verified complaint and the cross claims of the defendant Port Authority of New York and New Jersey sounding in contribution and common-law indemnification insofar as asserted against it, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff, who was employed by an airline operating at LaGuardia Airport (hereinafter LaGuardia), allegedly was injured when she slipped on a patch of ice in the employee parking lot (hereinafter the parking lot) at LaGuardia as she was walking to her car. She commenced this action to recover damages for personal injuries, alleging common-law negligence and violation of Labor Law §200.Pursuant to a contract with the defendant Port Authority of New York and New Jersey (hereinafter the Port Authority), the defendant Cristi Cleaning Service Corp. (hereinafter Cristi) had a contractual duty to perform janitorial and cleaning services and certain snow removal services which did not include removing snow and ice from the parking lot. Pursuant to a separate contract with the Port Authority, the defendant Five Star Parking (hereinafter Five Star) managed the parking lot. Five Star’s contractual duties included, among other things, monitoring the condition of the parking lot, reporting snowy or icy conditions to the Port Authority, and removing snow and ice from certain exit lanes, but it did not have a duty to remove snow or ice from the parking lot.In its verified answer, the Port Authority, among other things, asserted cross claims against Cristi and Five Star for contractual indemnification, common-law indemnification, breach of contract to procure liability insurance, and contribution. After discovery, Cristi and Five Star separately moved for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against each of them, contending that they did not have a duty to remove snow from the parking lot, and that they did not owe the plaintiff a duty of care. The Supreme Court denied Cristi’s motion, concluding that Cristi had failed to demonstrate, prima facie, that its acts or omissions in its snow removal near the parking lot did not create the alleged icy condition on which the plaintiff fell. The court also denied Five Star’s motion, concluding that Five Star had failed to demonstrate, prima facie, that it did not violate a duty “to plaintiff to take proper action by notifying the Port Authority of the alleged hazardous condition.”A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal v. Melville Snow Contrs., 98 NY2d 136, 140 [citation and internal quotation marks omitted]; see Diaz v. Port Auth. of NY & NJ, 120 AD3d 611, 611-612; Rudloff v. Woodland Pond Condominium Assn., 109 AD3d 810, 810).The exceptions alleged in the pleadings with respect to Cristi and Five Star were that they launched an instrument of harm, and that their respective agreements with the Port Authority were comprehensive and exclusive such that they entirely displaced the Port Authority’s duty to maintain the premises safely (see Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214). Therefore, in moving for summary judgment dismissing the amended verified complaint and all cross claims insofar as asserted against them, Cristi and Five Star were required to address these exceptions by demonstrating, prima facie, that they did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition, and that their contracts with the Port Authority were not comprehensive and exclusive.“[A] claim that a contractor exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them” (Rudloff v. Woodland Pond Condominium Assn., 109 AD3d at 811; see Foster v. Herbert Slepoy Corp., 76 AD3d at 215). The submissions in support of their respective motions show that neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be “‘an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” (Altinma v. East 72nd Garage Corp., 54 AD3d 978, 980, quoting Moch Co. v. Rensselaer Water Co., 247 NY 160, 168; see Church v. Callanan Indus., 99 NY2d 104, 112; Barone v. Nickerson, 140 AD3d 1100, 1101; Braverman v. Bendiner & Schelsinger, Inc., 121 AD3d 353, 360; Quinones v. City of New York, 105 AD3d 932, 934; Vasquez v. Port Auth. of N.Y. & N.J., 100 AD3d 442, 442; Bono v. Halben’s Tire City Inc., 84 AD3d 1137, 1139; Bauerlein v. Salvation Army, 74 AD3d 851, 856). Therefore, they established their prima facie entitlement to judgment as a matter of law on this issue. In opposition, the Port Authority failed to raise a triable issue of fact that the acts or omissions of either Cristi or Five Star left the parking lot more dangerous than they found it.The contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority’s general duty to keep the premises in a safe condition (see Rudloff v. Woodland Pond Condominium Assn., 109 AD3d at 811-812; Henriquez v. Inserra Supermarkets, Inc., 89 AD3d 899, 901-902; Shang Sook Min v. ABM, Inc., 47 AD3d 699, 699). Therefore, Cristi and Five Star established their prima facie entitlement to judgment as a matter of law on this issue. The Port Authority failed to raise a triable issue of fact in opposition. The contractual duties of Cristi and Five Star to the Port Authority did not constitute duties to the plaintiff. Cristi’s snow removal duties did not extend to the parking lot. The Port Authority argued, among other things, that Cristi breached a contractual duty to inspect the parking lot and to notify the Port Authority of any dangerous conditions. However, that alleged contractual duty did not extend to the plaintiff. Further, Five Star’s alleged duty to notify the Port Authority of a snow and/or ice condition did not extend to the plaintiff.Cristi and Five Star also established their prima facie entitlement to judgment as a matter of law dismissing the Port Authority’s cross claims against them for contribution and common-law indemnification. To sustain its cross claim for contribution against Cristi or Five Star, the Port Authority was required to show that Cristi or Five Star, respectively, owed it a duty of reasonable care outside their respective contractual obligations, or that a duty was owed to the plaintiff as an injured party and that a breach of this duty contributed to the alleged injuries (see Baratta v. Home Depot USA, Inc., 303 AD2d 434, 435). Here, the Port Authority’s cross claims for contribution against Cristi and Five Star do not allege that they owed the Port Authority a duty outside of their contractual obligations, and neither Cristi nor Five Star owed the plaintiff a duty of care.A party’s right to indemnification may arise from a contract or may be implied “based upon the law’s notion of what is fair and proper as between the parties” (Mas v. Two Bridges Assoc., 75 NY2d 680, 690). ”Implied[, or common-law,] indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other” (id. at 690, citing McDermott v. City of New York, 50 NY2d 211, 216-217; see Rosado v. Proctor & Schwartz, 66 NY2d 21, 24). Common-law indemnification is generally available “in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer” (Mas v. Two Bridges Assoc., 75 NY2d at 690; see D’Ambrosio v. City of New York, 55 NY2d 454, 460). Consistent with the equitable underpinnings of common-law indemnification, our case law imposes indemnification obligations upon those actively at fault in bringing about the injury, and, thus, reflects an inherent fairness as to which party should be held liable for indemnity (see e.g. Felker v. Corning Inc., 90 NY2d 219, 226; Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 17; Rogers v. Dorchester Assoc., 32 NY2d 553, 556). Here, neither Cristi nor Five Star could be found liable by operation of law nor were they actively at fault in bringing about the injury.Accordingly, the cross claims against Cristi and Five Star for contribution and common-law indemnification should have been dismissed (see Kane v. Peter M. Moore Constr. Co., Inc., 145 AD3d 864, 869; Marquez v. L & M Dev. Partners, Inc., 141 AD3d at 700; Guerra v. St. Catherine of Sienna, 79 AD3d at 809).The Supreme Court properly denied those branches of Cristi’s and Five Star’s motions which were for summary judgment dismissing the Port Authority’s cross claims against them for contractual indemnification. ”[A] party’s right to contractual indemnification depends upon the specific language of the relevant contract” (Morris v. Home Depot USA, 152 AD3d 669, 672; see Goodlow v. 724 Fifth Ave. Realty, LLC, 127 AD3d 1138, 1140; Desena v. North Shore Hebrew Academy, 119 AD3d 631, 636). ”The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances” (Morris v. Home Depot USA, 152 AD3d at 672 [internal quotation marks omitted]; see Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491-492; Goodlow v. 724 Fifth Ave. Realty, LLC, 127 AD3d at 1140; Roldan v. New York Univ., 81 AD3d 625, 628). Here, the respective contracts contain identical indemnification provisions, which provide, in relevant part, that “to the extent permitted by law,” Cristi and Five Star shall indemnify the Port Authority for all loss or damage incurred in connection with causes of action alleging personal injuries arising out of or in any way connected with those contracts. Although General Obligations Law §5-322 bars agreements that indemnify a party for its own negligence, since the indemnification provisions at issue here expressly state that they apply only “to the extent permitted by law,” those provisions are enforceable (see Reisman v. Bay Shore Union Free School Dist., 74 AD3d 772, 774; Giangarra v. Pav-Lak Contr., Inc., 55 AD3d 869, 870-871).Cristi and Five Star failed to eliminate all triable issues of fact as to whether they breached their contractual duties to the Port Authority. Accordingly, the Port Authority’s cross claims for contractual indemnification against Cristi and Five Star should not be dismissed regardless of the sufficiency of the Port Authority’s opposition papers (see Marquez v. L & M Dev. Partners, Inc., 141 AD3d at 700; Guerra v. St. Catherine of Sienna, 79 AD3d at 809-810; Patterson v. New York City Tr. Auth., 5 AD3d 454, 455).Cristi and Five Star also failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Port Authority’s cross claims against them alleging breach of contract for their failure to procure insurance, as neither of them submitted any evidence demonstrating that they procured an insurance policy as required by their respective contracts with the Port Authority. Accordingly, these cross claims should not be dismissed regardless of the sufficiency of the Port Authority’s opposition papers (see Simmons v. Berkshire Equity, LLC, 149 AD3d 1119, 1121).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Gina R. Stubbs, ap, v. Dalkeith G. Facey, res — (Index No. 21830/11)Gina Stubbs, suing herein as Gina R. Stubbs, Midland, Texas, appellant pro se.Dalkeith Facey, sued herein as Dalkeith G. Facey, Massena, NY, respondent pro se.Appeal from a judgment of divorce of the Supreme Court, Suffolk County (John Iliou, J.), dated May 29, 2015. The judgment, insofar as appealed from, upon a decision of that court dated December 18, 2014, made after a nonjury trial, directed the plaintiff to maintain a life insurance policy naming the parties’ child as beneficiary and the defendant as trustee of the policy funds, and awarded the plaintiff the sum of only $294,400 as her equitable share of the defendant’s enhanced earning capacity from his medical license.ORDERED that the judgment is affirmed insofar as appealed from, with costs.The parties were married on August 4, 2001. During the course of their marriage, they had one child, born in 2004. The plaintiff commenced this action for a divorce and ancillary relief in July 2011. Following a nonjury trial, the Supreme Court, inter alia, directed each party to maintain a life insurance policy naming the parties’ child as beneficiary and the other party as trustee of the insurance policy funds, and awarded the plaintiff the sum of $294,400 as her equitable share of the defendant’s enhanced earning capacity from his medical license. The plaintiff appeals.Contrary to the plaintiff’s contention, the Supreme Court properly directed the plaintiff to maintain a life insurance policy naming the parties’ child as beneficiary and the defendant as trustee of the insurance policy funds (see Geller v. Geller, 69 AD3d 563, 564; Peri v. Peri, 2 AD3d 425).Further, in valuing and equitably distributing the defendant’s enhanced earning capacity from his medical license, which was earned during the marriage, the Supreme Court properly took into consideration the marital portion of the defendant’s student loan debt in determining his enhanced earning capacity (cf. Heydt-Benjamin v. Heydt-Benjamin, 127 AD3d 814, 815).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.6 Harbor Park Drive, LLC, ap, v. Town of North Hempstead res — (Index No. 11639/10)Lewis Johs Avallone & Aviles, LLP, Islandia, NY (Stacey E. Gorny of counsel),for respondents Manfred Demenus and Marita Demenus.In a consolidated action for injunctive relief and to recover damages for injury to property, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered February 18, 2015, as granted the separate motions of the defendant Town of North Hempstead, the defendant Incorporated Village of Flower Hill, the defendants Woo Chang and Sook Chang, and the defendants Manfred Demenus and Marita Demenus for summary judgment dismissing the complaint insofar as asserted against each of them, granted that branch of the motion of the defendant Angeles Portela which was for summary judgment dismissing the complaint insofar as asserted against her except for so much of the cause of action alleging injury to property as was based upon an allegation concerning the placement of mulch, and denied the plaintiff’s cross motions for summary judgment on the issue of liability against the defendants Woo Chang and Sook Chang, and the defendant Angeles Portela, and (2) from an order of the same court, entered May 27, 2015, which denied the plaintiff’s motion for leave to amend the complaint to add a cause of action alleging that the defendants Woo Chang, Sook Chang, and Angeles Portela violated a restrictive covenant.ORDERED that the order entered February 18, 2015, is affirmed insofar as appealed from; and it is further,ORDERED that the order entered May 27, 2015, is affirmed; and it is further,ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.The plaintiff owns real property in the Town of North Hempstead that was damaged by water and debris flowing down a steep slope at the rear of the property. That steep slope is part of a larger hill that continues uphill into the Incorporated Village of Flower Hill where the plaintiff’s property is bordered by properties owned by Woo Chang and Sook Chang, Manfred Demenus and Marita Demenus, and Angeles Portela (hereinafter collectively the uphill defendants). Within the slope that forms the border of the plaintiff’s property and the uphill defendants’ properties is a drainage easement owned by the Village.The plaintiff commenced actions, which were later consolidated, against the uphill defendants, the Town, and the Village, seeking injunctive relief and to recover damages for injury to property. The various defendants moved for summary judgment dismissing the complaint insofar as asserted against each of them, contending that they were not liable for the plaintiff’s damages, and the plaintiff cross-moved for summary judgment on the issue of liability against the defendants Woo Chang, Sook Chang, and Angeles Portela. In an order dated February 18, 2015, the Supreme Court, inter alia, granted the separate motions of the Town, the Village, Woo Chang and Sook Chang, and Manfred Demenus and Marita Demenus for summary judgment dismissing the complaint insofar as asserted against each of them, and granted that branch of the motion of the defendant Angeles Portela which was for summary judgment dismissing the complaint insofar as asserted against her except for so much of the cause of action alleging injury to property as was based upon an allegation concerning the placement of mulch. Further, the court denied the plaintiff’s cross motions for summary judgment on the issue of liability.Following the Supreme Court’s order deciding the various motions for summary judgment, the plaintiff moved to amend the complaint to include a cause of action against the defendants Angeles Portela, Woo Chang, and Sook Chang based upon restrictive covenants in their respective chains of title. By order entered May 27, 2015, the Supreme Court denied this motion. The plaintiff appeals from both orders.A landowner will not be liable for damages to abutting property caused by the flow of surface water due to improvements to his or her land provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches (see Kossoff v. Rathgeb-Walsh, 3 NY2d 583, 589-590; Biaglow v. Elite Prop. Holdings, LLC, 140 AD3d 814, 815). The defendants Woo Chang and Sook Chang and the defendants Manfred Demenus and Marita Demenus made prima facie showings of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact as to whether artificial means were used to divert surface water from those defendants’ properties onto the plaintiff’s property, or whether the improvements to those defendants’ properties were made in good faith. Accordingly, those defendants were entitled to summary judgment dismissing the complaint insofar as asserted against each of them. For the same reasons, the Supreme Court properly granted summary judgment to Angeles Portela dismissing the complaint insofar as asserted against her except for so much of the cause of action alleging injury to property as was based upon the allegation concerning the placement of mulch.Further, the Supreme Court properly granted summary judgment to the Village because it made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact, including as to whether the Village had ever utilized the easement that the plaintiff alleged gave rise to liability. Likewise, the court properly granted summary judgment to the Town because it made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to raise a triable issue of fact, including as to whether the Town ever used or had a property interest in the easement owned by the Village (see Smith v. Palone, 52 AD3d 1309, 1310).For these same reasons, the Supreme Court properly denied the plaintiff’s motions for summary judgment on the issue of liability.The Supreme Court also properly denied the plaintiff’s motion for leave to amend the complaint to add a cause of action against the defendants Woo Chang, Sook Chang, and Angeles Portela based on an alleged restrictive covenant (see Hanover Ins. Co. v. Carley, 234 AD2d 268, 269; Reznick v. Tanen, 162 AD2d 594; see also Baker v. 16 Sutton Place Apt. Corp., 2 AD3d 119, 120).RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Wells Fargo Bank, N.A., res, v. Tamara Pelosi, appellant def — (Index No. 24293/09)Appeals from (1) an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated January 15, 2016, and (2) a judgment of foreclosure and sale of that court, also dated January 15, 2016. The order, insofar as appealed from, granted the plaintiff’s motion for a judgment of foreclosure and sale and denied those branches of the cross motion of the defendant Tamara Pelosi which were pursuant to CPLR 5015(a)(1) to vacate her default in answering the complaint and pursuant to CPLR 3012(d) to extend her time to answer the complaint. The judgment of foreclosure and sale, upon the order, inter alia, confirmed a referee’s report and directed the sale of the subject property.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal from the order dated January 15, 2016, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]).In June 2007, the defendant Tamara Pelosi (hereinafter the appellant) borrowed the sum of $341,520. The loan was memorialized by a note and secured by a mortgage against real property in East Moriches. In June 2009, the plaintiff commenced this action to foreclose the mortgage. The appellant defaulted in answering the complaint. The plaintiff subsequently sought and obtained an order of reference, which was entered without opposition. A referee’s report was issued in September 2013.Thereafter, the plaintiff moved for a judgment of foreclosure and sale. The appellant opposed the motion and cross-moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate her default in answering the complaint and pursuant to CPLR 3012(d) to extend her time to answer the complaint. The Supreme Court granted the plaintiff’s motion and denied those branches of the appellant’s cross motion.“To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Mannino Dev., Inc. v. Linares, 117 AD3d 995, 995; see CPLR 3012[d]; 5015[a][1]; HSBC Bank USA, N.A. v. Powell, 148 AD3d 1123, 1124; Federal Natl. Mtge. Assn. v. Zapata, 143 AD3d 857, 858; see also Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 AD3d 825, 825). Here, since the appellant proffered no excuse for her default, those branches of her cross motion which were to vacate her default in answering the complaint and to extend her time to answer the complaint were properly denied without regard to whether she demonstrated the existence of a potentially meritorious defense to the action (see New Century Mtge. Corp. v. Corriette, 117 AD3d 1011, 1012; TD Bank, N.A. v. Spector, 114 AD3d 933, 934; Citimortgage, Inc. v. Bustamante, 107 AD3d 752, 753).The appellant’s remaining contention is improperly raised for the first time on appeal.Accordingly, the Supreme Court properly denied those branches of the appellant’s cross motion which were pursuant to CPLR 5015(a)(1) to vacate her default in answering the complaint and pursuant to CPLR 3012(d) to extend her time to answer the complaint. For the same reasons, the plaintiff’s motion for a judgment of foreclosure and sale was properly granted.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.Patricia Lentini, res, v. Delta Air Lines, Inc., ap — (Index No. 701141/16)In an action, inter alia, to recover damages for injury to personal property, the defendant appeals from an order of the Supreme Court, Queens County (Greco, Jr., J.), entered December 13, 2016, which denied its motion for summary judgment limiting the plaintiff’s potential damages to $50 pursuant to its U.S.-Domestic Air Waybill Conditions of Contract.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment limiting the plaintiff’s potential damages to $50 pursuant to its U.S.-Domestic Air Waybill Conditions of Contract is granted.As alleged in the complaint, the plaintiff purchased a kitten from a breeder in Florida. The breeder delivered the kitten to the defendant, Delta Air Lines, Inc., to be shipped from Florida to New York as cargo with the defendant’s cargo service. The plaintiff picked up the kitten upon arrival in New York and took it home. The following day, after the plaintiff noted that the kitten was in distress, a veterinarian diagnosed the kitten with a broken hip.The plaintiff commenced this action to recover damages arising from the defendant’s shipment of the kitten, alleging causes of action sounding in, inter alia, negligence, conversion, and bailment. After issue was joined, the defendant moved for summary judgment limiting the plaintiff’s potential damages to $50 pursuant to the terms contained in its U.S.-Domestic Air Waybill Conditions of Contract (hereinafter the air waybill). The Supreme Court denied the defendant’s motion. The defendant appeals. We reverse.A party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).With the enactment of the Airline Deregulation Act of 1978 (hereinafter ADA) (49 USC §41713), domestic air transit was largely deregulated (see American Airlines, Inc. v. Wolens, 513 US 219, 222). Prior to and after the enactment of the ADA, actions against interstate carriers for lost or damaged shipments have been governed by federal common law (see Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F3d 53, 59 [2d Cir]; Deiro v. American Airlines, Inc., 816 F2d 1360, 1365 [9th Cir]; Finestone v. Continental Airlines, 195 Misc 2d 795, 796 [App Term, 2d Dept]). The ADA contains a “preemption clause” (see 49 USC §41713[b][1]) as well as a “saving clause” (see 49 USC §40120[c]), which, when read together, prohibit states from “imposing their own substantive standards with respect to rates, routes, or services” (American Airlines, Inc. v. Wolens, 513 US at 232). ”This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement” (id. at 233). Thus, actions for loss or damage to interstate air shipments are governed by federal common law (see St. Paul Fire & Marine Ins. Co. v. Delta Air Lines, Inc., 583 F Supp 2d 466, 468 [SD NY]).An air waybill forms the basic contract between a shipper and an air carrier (see Southern Pac. Transp. Co. v. Commercial Metals Co., 456 US 336, 342-343). In order to enforce a limited liability provision contained in an air waybill, a carrier must demonstrate that its contract satisfies the released-valuation doctrine (see Treiber & Straub, Inc. v. U.P.S., Inc., 474 F3d 379, 385-386 [7th Cir]; King Jewelry, Inc. v. Federal Express Corp., 316 F3d 961, 965 [9th Cir]). Under the released-valuation doctrine, the shipper “is deemed to have released the carrier from liability beyond a stated amount” in exchange for a low shipping rate (Deiro v. American Airlines, Inc., 816 F2d at 1365). The shipper is bound by the limited liability provision if he or she (1) has reasonable notice of the rate structure, and (2) is given a fair opportunity to pay a higher rate in order to obtain greater protection (see id.). Stated a different way, “[l]imited liability provisions are prima facie valid if the face of the contract (or, in this case, air waybill) recites the liability limitation and ‘the means to avoid it’” (Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F3d 1190, 1198 [9th Cir], quoting Royal Insurance Co. v. Sea-Land Service Inc., 50 F3d 723, 727 [9th Cir]). The fact that the language setting forth the limited liability provision is found on the reverse side of the air waybill does not render the provision unable to satisfy the released-valuation doctrine (see Hill Const. Corp. v. American Airlines, Inc., 996 F2d 1315, 1318 [1st Cir]; Husman Const. Co. v. Purolator Courier Corp., 832 F2d 459, 461-462 [8th Cir]). ”The issue of adequate notice of the terms and conditions contained in a passenger ticket for interstate transportation is a question of law to be determined by the Court” (Gluckman v. American Airlines, Inc., 844 F Supp 151, 160-161 [SD NY]).Here, the air waybill signed by the plaintiff’s shipper demonstrates that the shipper did not declare a value for the kitten and no additional coverage was purchased. The terms of the air waybill also provided a fair opportunity to purchase greater coverage (see Cubero Valderama v. Delta Air Lines, Inc., 931 F Supp 119, 122 [D PR]; Reece v. Delta Air Lines, Inc., 731 F Supp 1131, 1135 [D Me]; Blair v. Delta Air Lines, Inc., 344 F Supp 360, 367 [SD Fla], affd 477 F2d 564). Accordingly, the defendant met its initial prima facie burden on its motion.The burden then shifted to the plaintiff to show a proper basis for avoiding enforcement of the limited liability provision (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). To do so, the plaintiff had the burden of showing that she did not have a fair opportunity to purchase greater liability protection (see Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F3d at 1198; Deiro v. American Airlines, Inc., 816 F2d at 1365). The plaintiff, who submitted only her attorney’s affirmation and certain veterinary bills in opposition, failed to raise a triable issue of fact as to whether she was not given the opportunity to purchase additional coverage.Furthermore, the plaintiff’s efforts to invalidate the contractual limitation of liability clause based upon the state common law of tort, conversion, and bailment are without merit. To reach those claims would require consideration of, and give effect to, “state laws or policies external to the agreement” (American Airlines, Inc. v. Wolens, 513 US at 232). Such claims “are preempted by the ADA” (Finestone v. Continental Airlines, 195 Misc 2d at 798, citing Boon Ins. Agency, Inc. v. American Airlines, Inc., 17 SW3d 52 [Tex Ct App]; Howell v. Alaska Airlines, Inc., 99 Wash App 646, 994 P2d 901; Leonard v. Northwest Airlines, Inc., 605 NW2d 425 [Minn Ct App]; Blackner v. Continental Airlines, Inc., 311 NJ Super 10, 709 A2d 258).The plaintiff’s remaining contentions are improperly raised for the first time on appeal.Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment limiting the plaintiff’s potential damages to $50 pursuant to the air waybill.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Dillon, J.P.; Miller, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Richard Beckham, ap — (Ind. No. 1827/09)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 August 10, 2016 (People v. Beckham, 142 AD3d 556), affirming a judgment of the Supreme Court, Queens County, rendered December 15, 2011.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., MILLER, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.Tiffany Marie Currie, res, v. Mohammad Z. Mansoor def, Home Depot U.S.A., Inc., ap — (Index No. 501989/15)Appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated September 28, 2016. The order, insofar as appealed from, granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability insofar as asserted against the defendant Home Depot U.S.A., Inc., and denied that branch of the cross motion of the defendants Home Depot Store 1256, Home Depot U.S.A., Inc., and D L Peterson Trust which was for summary judgment dismissing the complaint insofar as asserted against the defendant Home Depot U.S.A., Inc.ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability insofar as asserted against the defendant Home Depot U.S.A., Inc., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff allegedly was injured when a car (hereinafter the subject vehicle) operated by the defendant Mohammad Z. Mansoor struck the car she was operating. The subject vehicle was owned by the defendant D L Peterson Trust (hereinafter DL) and leased to the defendant Home Depot U.S.A., Inc. (hereinafter Home Depot and, together with DL, the vehicle defendants). The plaintiff commenced this action to recover damages for personal injuries against, among others, Mansoor and the vehicle defendants.The plaintiff moved for summary judgment on the issue of liability, and the vehicle defendants, together with the defendant Home Depot Store 1256, cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against Home Depot. The Supreme Court granted that branch of the motion which was for summary judgment on the issue of liability insofar as asserted against Home Depot and denied that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against Home Depot. Home Depot appeals.Home Depot contends that it was entitled to summary judgment dismissing the complaint insofar as asserted against it because it is protected from liability by 49 USC §30106, a/k/a the Graves Amendment. Under the Graves Amendment, an owner of a motor vehicle which rents that vehicle to another cannot be held vicariously liable for personal injuries resulting from the use of the vehicle “during the period of the rental” if the owner: (1) “is engaged in the trade or business of renting or leasing motor vehicles”; and (2) “there is no negligence or criminal wrongdoing on the part of the owner” (49 USC §30106[a]; see Nelson v. Citywide Auto Leasing, Inc., 154 AD3d 863; Bravo v. Vargas, 113 AD3d 579, 580).Here, the vehicle defendants submitted evidence demonstrating that Mansoor was not Home Depot’s employee or agent, that Home Depot operates a program under which it rents vehicles for a fee, and that the vehicles used in that program are leased by Home Depot from entities “such as DL.” However, Home Depot failed to submit sufficient evidence to establish that it had rented out the subject vehicle at the time of the accident. Accordingly, Home Depot failed to demonstrate, prima facie, that the plaintiff’s claim against it arose “during the period of the rental,” as was required to obtain the protection of the Graves Amendment (49 USC §30106[a]; see Cioffi v. S.M. Foods, Inc., 129 AD3d 888, 892). Moreover, the defendants failed to eliminate questions of fact as to whether Home Depot had negligently maintained the subject vehicle and whether the condition of the vehicle was a proximate cause of the accident, as alleged by the plaintiff (see Nelson v. Citywide Auto Leasing, Inc., 154 AD3d 863; Anglero v. Hanif, 140 AD3d 905, 906-907; Olmann v. Neil, 132 AD3d 744, 745-746). Accordingly, the Supreme Court properly denied that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against Home Depot.However, since Home Depot’s evidence was sufficient to raise a triable issue of fact as to whether the Graves Amendment applied, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability insofar as asserted against Home Depot.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.PEOPLE, res, v. Trevor Gilmore, ap — Seymour W. James, Jr., New York, NY (Ellen Dille of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated October 22, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed the defendant 90 points on the risk assessment instrument, which score was within the range for a presumptive designation as a level two sex offender. The court denied the People’s request for an upward departure and designated the defendant a level two sex offender. On this appeal, the defendant challenges the assessment of 15 points under risk factor 1 for infliction of physical injury, rather than only 10 points under that risk factor for use of forcible compulsion. He also challenges the assessment of 10 points under risk factor 13 for unsatisfactory conduct while confined. Finally, he contends that he was entitled to a downward departure from his presumptive risk level.In establishing a defendant’s risk level pursuant to SORA, the People have the burden of establishing the facts supporting the determinations sought by clear and convincing evidence (see Correction Law §168-n[3]). Here, as the People correctly concede on appeal, they failed to establish that the defendant inflicted physical injury on the victim, and, therefore, the defendant should have been assessed only 10 points rather than 15 points under risk factor 1 (see SORA: Risk Assessment Guidelines and Commentary at 7-8 [2006]; Penal Law §10.00[9]). The People also failed to establish that the defendant’s conduct during his period of incarceration was unsatisfactory within the meaning of the SORA Risk Assessment Guidelines (see SORA: Risk Assessment Guidelines and Commentary at 16 [2006]) and, thus, the Supreme Court should not have assessed him 10 additional points under risk factor 13 (see People v. Yearwood, 144 AD3d 776, 777). However, even deducting these 15 points, the resulting score still places the defendant in the presumptive risk level two category.The defendant’s contention that he was entitled to a downward departure from a level two to a level one sex offender is unpreserved for appellate review as he did not argue at the SORA hearing that there existed mitigating circumstances of a kind or to a degree not otherwise adequately taken into account by the guidelines that warranted a downward departure from his presumptive level two sex offender status (see People v. Cepeda, 148 AD3d 942, 942-943; People v. Figueroa, 138 AD3d 708, 709; People v. Rosales, 133 AD3d 733; People v. Fernandez, 91 AD3d 737, 738). In any event, the defendant’s contention is without merit.The defendant’s remaining contention is without merit.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.PEOPLE, res, v. Demetrius Williams, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated December 10, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new hearing and a new determination in accordance herewith before a different Justice.“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of ‘a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines’” (People v. Warren, 152 AD3d 551, 551, quoting People v. Lathan, 129 AD3d 686, 687; see People v. Gillotti, 23 NY3d 841, 861; People v. Wyatt, 89 AD3d 112, 128; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. Accordingly, we reverse the order appealed from, and remit for a new hearing and a new determination in accordance herewith.The defendant’s remaining contentions are without merit.DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Edgar Lugo, ap — (Ind. No. 14-00663)Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered February 10, 2015, convicting him of assault in the first 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 motion of Thomas R. Villecco for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,ORDERED that Philip H. Schnabel, 33 Schnabel Lane, Chester, NY, 10918, is assigned as counsel to prosecute the appeal; and it is further,ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion, and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated March 8, 2016, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.Upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the amounts of restitution and surcharge were lawfully imposed (see Penal Law §60.27; People v. Consalvo, 89 NY2d 140; People v. Fuller, 57 NY2d 152; People v. Martinez, 144 AD3d 708), and whether the sentence imposed was excessive (see generally People v. Suitte, 90 AD2d 80). Accordingly, assignment of new counsel is warranted (see People v. Stokes, 95 NY2d 633, 638; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Victor Denny, ap — (Ind. No. 143/14)Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered October 29, 2015, convicting him of kidnapping in the second degree and robbery in the first degree, upon his plea of guilty, and imposing sentence, including a direction that the defendant pay restitution in the sum of $200,889.62.ORDERED that the judgment is modified, on the law, by vacating the provision thereof directing the defendant to pay restitution in the sum of $200,889.62; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for a hearing and a new determination as to the proper amount of restitution and the manner of payment thereof.“Before a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing” (People v. Morrishill, 127 AD3d 993, 994; see Penal Law §60.27[2]; People v. Consalvo, 89 NY2d 140, 145-146).Here, the defendant objected to the amount of restitution payable to the kidnapping victim and requested a hearing (see People v. Ward, 103 AD3d 925, 926; cf. People v. Isaacs, 71 AD3d 1161, 1161). Moreover, the record was insufficient to establish the proper amount of restitution (see People v. Morrishill, 127 AD3d at 994). Accordingly, the defendant was entitled to a hearing, and we therefore remit the matter to the County Court, Dutchess County, for a hearing and a new determination as to the proper amount of restitution and the manner of payment thereof.The component of the sentence imposed relating to incarceration was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Rivera, J.P.; Roman, Maltese and Duffy, JJ.PEOPLE, etc., res, v. Marcos Flores, ap — (Ind. No. 1351/11)Marcos Flores, Dannemora, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano and Ellen C. Abbot of counsel), for respondent.Paul Skip Laisure, New York, NY, former appellate counsel.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 June 22, 2016 (People v. Flores, 140 AD3d 1085), affirming a judgment of the Supreme Court, Queens County, rendered July 5, 2012.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).RIVERA, J.P., ROMAN, MALTESE and DUFFY, JJ., concur.