5387. Luz Ocasio, plf-ap, v. Dormitory Authority of the Stateof New York def-res, Prosec Protection Systems Inc., def — Michelstein & Associates, PLLC, New York (Stephen J. Riegel of counsel), for ap — Zachary W. Carter, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for Dormitory Authority of the State of New York, res — Raven & Kolbe, LLP, New York (Michael T. Gleason of counsel), for Nouveau Elevator Industries, Inc., res — Order, Supreme Court, Bronx County (Sharon A. M. Aarons, J.), entered on or about July 14, 2016, which granted the motions of defendants Dormitory Authority of the State of New York (DASNY) and Nouveau Elevator Industries, Inc. (Nouveau) for summary judgment dismissing the complaint and all cross claims as against them, unanimously modified, on the law, to the extent of denying Nouveau’s motion, and otherwise affirmed, without costs.Plaintiff alleges that she was injured at her workplace, Building 6 of Jacobi Medical Center, while traveling on an elevator on the way to her office. Plaintiff asserts that she was standing near the elevator doors when they opened at an intermediate floor. She heard a “gunshot”-like noise from above and was struck at the top of her forehead by a hot metal object. Plaintiff felt a sharp pain and lost consciousness. She woke up in the hospital’s emergency room. A washer was retrieved from the scene.DASNY had contracted with the City of New York and its Health and Hospitals Corporation to both construct Building 6 and to lease and operate the building. At the time of plaintiff’s accident, DASNY had a contract with Nouveau to install equipment in the elevators associated with an “Infant Abduction System” (IA-System). Nouveau also had a maintenance contract with Jacobi Medical Center to provide elevator maintenance services for the hospital.1 Nouveau’s witness stated that it was possible to install an IA-System on one elevator while keeping in service other elevators in the same bank.DASNY’s and Nouveau’s motions for summary judgment were granted by the motion court. We now modify.DASNY and Nouveau established their entitlement to judgment as a matter of law by submitting, inter alia, deposition testimony and affidavits showing that Nouveau’s work in an elevator shaft adjacent to the elevator in which plaintiff was riding did not require washers or welding equipment.However, in opposition, plaintiff raised triable issues of fact, as circumstantial evidence showed that a prompt investigation of the incident indicated that Nouveau’s workers were installing equipment in an adjacent elevator shaft several floors above where plaintiff’s elevator cab had come to a stop, and that no other construction crews were in the vicinity of the elevator bank in question. Contrary to the motion court’s finding, the evidence could be sufficient to support an inference that it was more likely that the injury was caused by negligence on the part of Nouveau rather than by some other actor (see Gayle v. City of New York, 92 NY2d 936 [1998]).Contrary to the motion court’s finding, “neither plaintiff’s failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence… constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application” (Weeden v. Armor El. Co., 97 AD2d 197, 201-202 [2d Dept 1983] [emphasis omitted]; see Estrategia Corp. v. Lafayette Commercial Condo, 95 AD3d 732 [1st Dept 2012]). However, we are unable to determine on this record whether, as plaintiff contends, the doctrine of res ipsa loquitur is applicable to Nouveau.The motion court properly granted summary judgment to DASNY on the basis that DASNY had no notice of the hot washer and therefore, could not be negligent. The doctrine of res ipsa loquitur does not assist plaintiff in her claim against DASNY because plaintiff does not argue that DASNY was in control of the washer, which was the instrumentality of her injury. Nor has plaintiff argued that DASNY is properly held vicariously liable for any defect created by the elevator company, which would obviate the need for plaintiff to demonstrate actual or constructive notice (see e.g. Barkley v. Plaza Realty Invs. Inc., 149 AD3d 74, 79 [1st Dept 2017] [vicarious liability under Multiple Dwelling Law §78]; Mas v. Two Bridges Assoc., 75 NY2d 680, 689 [1990] [same]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
1. The August 1, 2016 contract in the record is unsigned, but the parties assume the existence of a maintenance contract in their papers. Nouveau’s maintenance manager further alluded to an April 5, 2005 maintenance contract at his deposition. The record contains work tickets for Nouveau’s hospital elevator maintenance work during the relevant period.By Sweeny, J.P., Manzanet-Daniels, Gische, Kahn, Oing, JJ.5707. In re Laurie Kellogg, pet-res, v. The New York State Board of Parole, res-res — Eric T. Schneiderman, Attorney General, New York (Philip V. Tisne of counsel), for ap — Spektor & Tsirkin, P.C., New York (Vladimir Tsirkin of counsel), for res — Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about March 23, 2017, granting the petition to vacate the denial of parole and order a new parole hearing by directing respondent to grant petitioner parole within 30 days of the judgment, unanimously modified, on the law, to vacate the directive that respondent grant petitioner parole, and to direct respondent to hold a new parole hearing within 60 days of entry of this order before a board of commissioners who have not sat on her previous hearings, and otherwise affirmed, without costs.In 1991, petitioner learned that her husband was molesting a 16-year-old who lived with them and babysat their sons. While the husband was spending the weekend at a family cottage near Seneca Lake, petitioner, the babysitter, and the babysitter’s boyfriend, as well as two other teens, drove to the cabin to confront the husband about the abuse. The group took the husband’s loaded handgun with them.Driving through the night, they arrived at the cottage at approximately 4:00 a.m. As they pulled up, the sitter’s boyfriend leapt from the truck, took the handgun, entered the cottage, and shot the husband multiple times as he slept, killing him. During this time, petitioner remained in the truck. Afterwards, the group tossed the gun into a creek and returned home.The sitter’s boyfriend subsequently pleaded guilty to second-degree (intentional) murder and first-degree conspiracy and was sentenced to 25 years to life.After trial, petitioner was found guilty of second-degree (felony) murder, first-degree manslaughter, first-degree burglary, and possession of a weapon, but was acquitted of intentional murder and multiple degrees of conspiracy.As an inmate, petitioner participated in numerous programs, including working as a teacher’s aide and helping inmates obtain their GEDs, training service dogs, and serving as a chaplain’s clerk. Notably, petitioner compiled an extraordinary disciplinary record without a single Tier 2 or 3 disciplinary infraction, despite decades in prison. In July 2015, petitioner’s risk assessment placed her in the lowest category of likelihood of reoffense.At the parole hearing, petitioner maintained, consistent with the jury verdict, that she never conspired to kill her husband and did not intend to kill him. Petitioner emphasized, however, her sense of responsibility for making “choices and decisions that led to a chain of events that led to the death of [her] husband.”Petitioner attempted to explain that she had been convicted on a felony murder theory, rather than intentional murder, but, being a layperson, was unable to clearly convey the distinction.The commissioners acknowledged that petitioner presented a low risk of reoffense. Nonetheless, near the end of the hearing, the commissioners asked petitioner to explain in “what significant way [she] changed,” because they did not “see where [she had] admitted to being such a bad person.” Petitioner replied that she “[did not] believe that [she] was a horribly bad person.” Instead, she was “young and naive” and “made some bad choices,” which she recognized now “look[ing] back at 51, as opposed to that young girl at 16, who married a 33-year-old man.” Petitioner “wished that [she] hadn’t been impulsive” and “understood now that every decision we make, everything we say carries weight, carries responsibility.”The commissioners denied parole, finding that if released at that time “there [wa]s a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law.” The commissioners emphasized that petitioner had failed to admit responsibility for the crimes she had been found guilty of committing, noting that it was not until the end of the interview that she “expressed any emotion approaching remorse.” Petitioner’s administrative appeal was denied.Supreme Court granted petitioner’s article 78 petition, stating, inter alia, that “[s]ubjective views of [petitioner's] alleged lack of remorse… cannot be allowed to override objective evidence of the last 25 years,” noting that petitioner had received “not a single complaint, much less any infraction [and] no word of bad behavior.” The court reflected, “Does saying you are ‘sorry,’ as a means to seek freedom from incarceration, mean that you are less likely to re-offend than if you do not?” We now modify to remand for a new hearing, rather than outright release, and otherwise affirm.The jury acquitted petitioner of intentional murder and conspiracy to commit murder, while convicting her of burglary, felony murder, and manslaughter. The manslaughter conviction in particular expresses a clear finding on the part of the jury that, while petitioner wished her husband harm, she either did not intend that he die, or acted under the influence of extreme emotional disturbance, or both (see Penal Law §125.20[1], [2]).The commissioners failed to appreciate that petitioner’s murder conviction was not for intentional murder, but rather for second-degree felony murder. The felony murder rule, of course, provides that a person is guilty of second-degree murder when, “[a]cting either alone or with one or more other persons, [she] commits or attempts to commit [violent crimes including] burglary,… and, in the course of and in furtherance of such crime or of immediate flight therefrom, [she], or another participant,… causes the death of a person other than one of the participants” (Penal Law §125.25[3]). In essence, and particularly in the context of a burglary conviction, the felony murder rule imposes strict and vicarious liability for a killing that one did not intend, provided that it was the result of an enumerated felony that one did intentionally commit. Intent to kill plays no role in a finding of felony murder (see People v. Howard, 241 AD2d 920, 921 [4th Dept 1997], lv denied 90 NY2d 940 [1997]; see Matter of King v. New York State Div. of Parole, 190 AD2d 423, 433-434 [1st Dept 1993] [holding that BOP erred in relying on felony murder conviction as aggravating factor supporting denial of parole], affd 83 NY2d 788 [1994]).At the parole hearing, petitioner nonetheless accepted responsibility for her “choices and decisions that led to a chain of events that led to the death of [her] husband.” Far from showing any lack of insight into her crime, petitioner’s testimony at the parole hearing was truthful, accurate, and consistent with what the jury found happened in 1991.Accordingly, respondent’s determination denying petitioner parole manifested “irrationality bordering on impropriety,” warranting granting the petition to vacate the denial of parole (Matter of Silmon v. Travis, 95 NY2d 470, 476 [2000] [internal quotation marks omitted]). The proper remedy is, however, not release, but a new hearing (see Matter of Rossakis v. New York State Bd. of Parole, 146 AD3d 22, 29 [1st Dept 2016]; Matter of Newton v. Dennison, 47 AD3d 538, 538 [1st Dept 2008]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Mazzarelli, Singh, JJ.5741-5742. Zoran ScekicPlaintiffs, v. SL Green Realty Corp. def — Structure Tone, Inc., Third-Party plf-ap, v. React Industries, Inc. Third-Party def-res, Schindler Elevator, Third-Party def — Structure Tone, Inc., Second Third-Party plf-ap, SL Green Realty Corp., Second Third-Party Plaintiff, v. FRP Sheet Metal Contracting Corp., Second Third-Party def-res — Structure Tone, Inc., Third Third-Party plf-ap, SL Green Realty Corp. Third Third-Party Plaintiffs, v. React Industries, Inc. Third Third-Party def-res, Schindler Elevator, Third Third-Party def — Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for ap — Gallo Vitucci Klar LLP, New York (Daniel P. Mevorach of counsel), for React Industries, Inc., res — Wade Clark Mulcahy, New York (Georgia G. Coats of counsel), for FL Mechanical LLC, res — Fabiani Cohen & Hall, LLP, New York (Allison A. Synder of counsel), for FRP Sheet Metal Contracting Corp., res — Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered August 5, 2016, to the extent appealed from as limited by the briefs, dismissing the third-party complaints as against React Industries, Inc. and FL Mechanical LLC, and the second-third party complaint, and bringing up for review the pretrial dismissal of the complaint and all claims as against defendant 1515 Broadway Fee Owner, LLC, unanimously modified, on the law, to vacate the dismissal of the second-third-party complaint, and reinstate the second third-party claim for contractual indemnification as against FRP Sheet Metal Contracting Corp., and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered May 26, 2016, as amended July 26, 2016, which denied Structure Tone’s motion to set aside the jury verdict as to its claims against React and for reconsideration of its motion for a directed verdict against React as to contractual defense and indemnification, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.The purchase orders issued by Structure Tone to FRP and by FRP to React establish that Structure Tone subcontracted all the HVAC work to FRP, which sub-subcontracted the mechanical portion of that work to React. The jury’s express and implicit findings that there were contractual agreements between Structure Tone and FRP and between FRP and React, but none between Structure Tone and React, are consistent with the “long-established principles… [that] the existence of a binding contract is not dependent on the subjective intent of either [party,] [and that] [i]n determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d 397, 399 [1977] [citations omitted]). Thus, Structure Tone’s second third-party claim against FRP for contractual indemnification is reinstated.When the blanket indemnity agreement between Structure Tone and React is read “as a harmonious and integrated whole” (Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit & Capital, Inc., NY3d, 2017 NY Slip Op 08622, *2 [2017] [internal quotation marks omitted]), it is plain that a direct contractual relationship between Structure Tone and React is required as a predicate for React to have an indemnity obligation to Structure Tone thereunder. Since the project at issue was deliberately structured to avoid creating a direct contractual relationship between these two parties, the blanket indemnity agreement does not apply in this case.The trial court correctly precluded parol evidence that Structure Tone was the “customer” referred to in FL Mechanical’s indemnity agreement with React. In any event, under that agreement, FL Mechanical owed indemnity only for claims arising from its own negligence, and the jury found that it was not negligent. Structure Tone is not aggrieved by the dismissal of 1515 Broadway’s claims.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Tom, J.P., Kapnick, Webber, Oing, JJ.5789-5790. Verizon New York Inc., plf-ap, v. The City of New York, def-res — The Cosgrove Law Firm, Buffalo (Edward C. Cosgrove of counsel), for ap — Zachary W. Carter, Corporation Counsel, New York (Donna B. Morris of counsel), for res — Order, Supreme Court, New York County (Margaret A. Chan, J.), entered January 16, 2015, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 5, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for leave to reargue, unanimously dismissed, without costs.Defendant made a prima facie showing that it had no prior notice of a defective water main at the location of the incident, as it found no records reflecting a water main break for two years prior to the event (see generally De Witt Props. v. City of New York, 44 NY2d 417, 424 [1978]; see also Clindinin v. New York City Hous. Auth., 117 AD3d 628, 628 [1st Dept 2014]). Although there were several reports of leaking hydrants during the relevant period, defendant investigated and determined that the complaints were unwarranted or promptly addressed them. Further, while water was reported to be leaking into the manhole involved in the incident about a year and a half before the event, the water was tested and found not to be from defendant’s facilities.Plaintiff’s argument that defendant’s records were not in admissible form and should not have been considered by the motion court is improperly raised for the first time on appeal (see Weicht v. City of New York, 148 AD3d 551, 552 [1st Dept 2017]). In any event, the records, which were attached to a City official’s affidavit, were admissible (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]).Plaintiff failed to raise a triable issue of fact as to notice. Although two of its employees submitted affidavits stating that water had infiltrated the manhole at the subject location prior to the event, the employees were not specific as to when this occurred, and plaintiff failed to produce any records of its own concerning such prior incidents.The denial of plaintiff’s motion for leave to reargue is not appealable (seeRosado v. Edmundo Castillo Inc., 54 AD3d 278, 279 [1st Dept 2008]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5891. PEOPLE, res, v. James Moore, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for res — Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about September 16, 2014, which denied defendant’s motion for resentencing pursuant to the Drug Law Reform Act of 2005, unanimously affirmed.The court correctly denied resentencing on the ground that defendant was less than three years from his parole eligibility date when he filed the motion (seePeople v. Mills, 11 NY3d 527, 536 [2008]), and it providently disregarded the People’s erroneous concession to the contrary (seee.g. People v. Wells, 16 AD3d 174 [1st Dept 2005], lv denied 5 NY3d 796 [2005]). Accordingly, the court was not required to assign counsel or conduct a hearing (see People v. Santana, 44 AD3d 340 [1st Dept 2007], lv dismissed 9 NY3d 964 [2007]). A defendant is entitled to a hearing on the merits of a resentencing application, but not necessarily on the threshold issue of eligibility (People v. Golo, 26 NY3d 358, 362-363 [2015]). Here, defendant’s ineligibility was clear, and there was nothing to litigate.Defendant argues that the 2005 Act should be reinterpreted in light of recent developments, including those relating to the resentencing of persons convicted of other types of drug felonies. However, no decision finding eligibility with regard to any other Drug Law Reform Act has vitiated the 2005 Act’s clear eligibility requirement that the applicant’s parole eligibility date be at least three years in the future. To accept defendant’s argument, we would have to rewrite the statute to treat persons convicted of class A-II felonies the same as persons convicted of other drug felonies (see People v. Horning, 143 AD3d 520 [1st Dept 2016], lv dismissed 28 NY3d 1124 [2016]). We have considered and rejected defendant’s constitutional arguments (see People v. Paniagua, 45 AD3d 98, 109-110 [1st Dept 2007], lv denied 9 NY3d 992 [2007]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5892. Indyra Luna, plf-res, v. CEC Entertainment, Inc., doing business as Chuck E. Cheese’s, def-ap — Rutherford & Christie, LLP, New York (L. Diana Mulderig of counsel), for ap — Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Gregory C. McMahon of counsel), for res — Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered July 14, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.Plaintiff alleges that, on October 2, 2011, she slipped and fell on a wet condition, on the steps of a ride, at a restaurant and entertainment facility owned and operated by defendant.Defendant met its prima facie burden on the motion of establishing that it neither created the alleged wet condition nor had prior actual or constructive notice of it. By plaintiff’s own admission, the wet condition, which she never saw but assumes was there, could only have been created moments earlier, having not been present when she walked up the steps (see Rosario v. Haber, 146 AD3d 685 [1st Dept 2017]; Nepomuceno v. City of New York, 137 AD3d 646, 647 [1st Dept 2016]; Espinal v. New York City Hous. Auth., 215 AD2d 281, 281—282 [1st Dept 1995]).Based upon plaintiff’s testimony that she was using both hands to carry her daughter down the steps when she fell, without any indication that she reached for a handrail, defendant established that the lack of a handrail did not proximately cause or contribute to the accident (see Pena v. Women’s Outreach Network, Inc., 35 AD3d 104, 111 [1st Dept 2006]; Plowden v. Stevens Partners, LLC, 45 AD3d 659 [2d Dept 2007]).Plaintiff’s affidavit in opposition, wherein she claimed that she tried to reach for a handrail when she fell, raised only feigned issues of fact, as it directly contradicted, and appears to have been tailored to avoid the consequence of, her earlier testimony (see Smith v. Costco Wholesale Corp., 50 AD3d 499, 501 [1st Dept 2008]; Telfeyan v. City of New York, 40 AD3d 372 [1st Dept 2007]).Pursuant to CPLR 3116(a), plaintiff’s unsigned deposition transcript may be used as though fully signed, as defendant submitted proof that the certified transcript was provided to her attorneys for execution and not returned. Moreover, an unsigned but certified transcript may be used as an admission (see Morchik v. Trinity School, 257 AD2d 534, 536 [1st Dept 1999]), especially where, as here, there is no dispute as to the accuracy of the transcript (see Bennett v. Berger, 283 AD2d 374 [1st Dept 2001]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5893. Tonyia B. Watson, Claimant-ap — v. The State of New York, def-res — Tonyia B. Watson, appellant pro se. Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for res — Order, Court of Claims of the State of New York (Faviola A. Soto, J.), entered July 1, 2016, which granted defendant’s motion to dismiss the claim, unanimously affirmed, without costs.The claim at issue was properly dismissed where claimant failed to comply with the pleading requirements of Court of Claims Act §11(b) (see Lepkowski v. State of New York, 1 NY3d 201, 208-209 [2003]). Notwithstanding claimant’s pro se status, strict construction of and compliance with such statutory preconditions to suit under the Court of Claims Act is required (see Kolnacki v. State of New York, 8 NY3d 277, 280—281 [2007]; Morra v. State of New York, 107 AD3d 1115 [3d Dept 2013]). Thus, the court correctly observed that this claim suffers from the same judicial infirmities as claimant’s prior claims (see 147 AD3d 708 [1st Dept 2017], lv denied 29 NY3d 1114 [2017]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5894-5895. PEOPLE, res, v. Carl Fraser, def-ap — Rosemary Herbert, Office of the Appellate Defender, New York (William Kendall of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for res — Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered February 22, 2013, convicting defendant, after a jury trial, of 14 counts of unlawful surveillance in the second degree, and sentencing him to an aggregate term of 2 2/3 to 8 years, unanimously affirmed.The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There was ample evidence that defendant surreptitiously used his camera to take photographs of the intimate body parts of his victims. The evidence supports the conclusion that “defendant was acting in a furtive or stealthy manner, attempting to obtain the [photos] without being discovered — in other words, that he was acting surreptitiously” (People v. Schreier, 22 NY3d 494, 499 [2014]). Although “the element of surreptitiousness is clearly not duplicative of the requirement that the recording be made without the victim’s knowledge or consent” (id. at 498), the type of photography in which defendant engaged, commonly known as “upskirting,” inherently requires “an effort to conceal [one's] conduct or to escape detection” (id.). We have considered and rejected defendant’s remaining arguments regarding the sufficiency and weight of the evidence.We perceive no basis for reducing the sentence. The sentencing court’s discretionary determination to certify defendant as a sex offender under the special provision relating to unlawful surveillance convictions (see Correction Law §168-a [2][e]) was also providently made.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5896-5897. Huynh, So Muon, plf-ap, v. Thach, Ly Sun, def-res — Butterman & Kahn, LLP, New York (Jay R. Butterman of counsel), for ap — Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 25, 2017, which denied plaintiff’s motion for summary judgment in lieu of complaint in an action seeking recognition and enforcement of an Australian money judgment in the amount of US $4,855,500, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in the principal amount, plus costs, disbursements and interest. Appeal from order, same court (Robert D. Kalish, J.), entered October 27, 2017, which, insofar as appealed from as limited by the brief, denied plaintiff’s motion for entry of a default judgment, unanimously dismissed, without costs, as moot.Plaintiff’s papers in support of her motion for summary judgment in lieu of complaint, on their face, established, prima facie, that she had a meritorious claim for domestication of the Australian judgment under CPLR article 53. Since defendant did not appear to contest New York’s jurisdiction over this matter or to raise any statutory defenses to recognition or enforcement of the Australian judgment (see CPLR 5304), plaintiff’s motion should have been granted (cf. AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., __AD3d__, 2018 NY Slip Op 00928 [1st Dept 2018]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5898. Julio Bermeo, plf-res, v. Time Warner Entertainment Co., L.P., et al., def-ap — Mauro Lilling Naparty, LLP, Woodbury (Seth M. Weinberg of counsel), for ap — Kelner and Kelner, New York (Gail S. Kelner of counsel), for res — Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about August 4, 2017, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.Plaintiff, while traveling south on a bicycle, collided with the passenger side of defendants’ northbound truck as it turned left across his path. While the record establishes that plaintiff had the right of way, an issue of fact exists as to whether plaintiff was negligent in that he could have avoided the collision through the exercise of reasonable care but failed to do so. Accordingly, plaintiff was not entitled to summary judgment on the issue of liability.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5899. PEOPLE, res, v. Gary Turrell, true name Gary Burrell, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Ronald Alfano of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for res — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Gregory Carro, J.), rendered November 18, 2015,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5900. In re Wilkyn Artiles, etc., pet, v. Raymond W. Kelly, etc. res — Law Office of Ricardo A. Aguirre, Bronx (Ricardo A. Aguirre of counsel), for pet — Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel) res — Determination of respondents, dated July 30, 2013, which affirmed the determination of the Assistant Deputy Commissioner of Trials dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Shlomo Hagler, J.], entered on or about September 22, 2014), dismissed, without costs.Petitioner was terminated from his position as a police officer after he was found guilty of impersonating four individuals to file false complaints with the New York City Civilian Complaint Review Board (CCRB), and making a false report of police corruption to the police department’s Internal Affairs Bureau (IAB)., respondents’ determination is supported by substantial evidence (see Matter of Berenhaus v. Ward, 70 NY2d 436, 443 [1987]). It is undisputed that the CCRB complaints were fabricated, that they were sent from an IP address corresponding to petitioner’s home, at a time when petitioner was off-duty, and that petitioner was angry due to a lost career opportunity. It is also undisputed that petitioner’s IAB report was determined to be unsubstantiated after the alleged victim denied the allegations.The determination was also in accord with due process, as it was made after a seven-day hearing, at which petitioner was represented by counsel and had the opportunity to present evidence and cross-examine witnesses, and at which 17 witnesses testified and 28 exhibits were introduced.Petitioner objects that one box of evidence was lost and could not be produced, and that one proposed witness — a former police officer who moved to another state — refused to testify despite being served with a subpoena. However, this evidence related to a prior IAB investigation that was not the basis for the termination decision and was relevant only insofar as it gave petitioner a motive to make the false complaints. Additionally, petitioner’s motive was corroborated by his own testimony, and by the testimony of several other police officers. Thus, petitioner’s rights were not violated by the omission of this evidence (seeMatter of Gordon v. Brown, 84 NY2d 574, 578 [1994]; Matter of Miller v. Schwartz, 72 NY2d 869, 870 [1988]; Matter of Pena v. Hughes, 121 AD3d 550, 550 [1st Dept 2014]).The record also does not support petitioner’s contention that the hearing officer was biased against him (see Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 NY2d 186, 197 [1981], cert denied 454 US 1125 [1981]).The penalty of dismissal is not disproportionate to petitioner’s serious misconduct so as to shock the conscience (see Matter of Kelly v. Safir, 96 NY2d 32, 38 [2001]; see alsoMatter of Smith v. Kelly, 117 AD3d 564, 565 [1st Dept 2014]; Matter of Kim v. Kelly, 104 AD3d 556, 556 [1st Dept 2013]; Matter of Alvarez v. Kelly, 2 AD3d 219, 220 [2003]; Matter of Ildefonso v. Bratton, 238 AD2d 142, 142 [1st Dept 1997], lv denied 90 NY2d 810 [1997]). Moreover, “[i]n matters of police discipline, we must accord great leeway to the Commissioner’s determinations concerning appropriate punishment, because he… is accountable to the public for the integrity of the Department” (Berenhaus, 70 NY2d at 445).We have considered petitioner’s remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kahn, JJ.5901. Luis Colon plf-ap, v. Metropolitan Transportation Authority, et al., def-res — Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for ap — London Fisher LLP, New York (Deborah J. Denenberg of counsel), for res — Order, Supreme Court, Bronx County (Barry Salman, J.), entered November 7, 2016, which, to the extent appealed from as limited by the briefs, granted defendants summary judgment dismissing plaintiffs’ Labor Law §241(6) claim, and denied plaintiffs summary judgment on the question of defendants’ Labor Law §240(1) liability, unanimously affirmed, without costs.Plaintiff Luis Colon was injured when he fell from a makeshift platform while torquing bolts on the Henry Hudson Bridge restoration project. At the time of his fall, plaintiff was wearing a vest and lanyard; however, he did not attach himself to the available lifeline. There are questions of fact on this record concerning whether it was feasible or even practical for Colon to have attached himself to the lifeline or whether another safety device was required and whether it was provided (see e.g. Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]).Plaintiffs’ claims predicated on Labor Law §241(6) were correctly dismissed. On their cross motion for summary judgment and in opposition to defendants’ motion for summary judgment, plaintiffs only argued that defendants violated Industrial Code (12 NYCRR) §23-1.7(e)(2). Plaintiff Colon’s own testimony, however, demonstrates that a violation of this Industrial Code section was not a factor in his accident (Urbano v. Rockefeller Ctr. N., Inc., 91 AD3d 549, 550 [1st Dept 2012]). Plaintiffs failed to preserve their arguments concerning section 23-1.16 of the Industrial Code.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5902. Charles Conklin, plf-res, v. 500-512 Seventh Avenue, LP, LLC, def-ap — LeClair Ryan, P.C., New York (Michael J. Case of counsel), for ap — Law Offices of Stevens & Traub, PLLC, New York (Peter Pearson Traub, Jr. of counsel), for res — Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered August 16, 2017, which granted plaintiff’s motion for summary judgment on the issue of liability, unanimously affirmed, without costs.Plaintiff, a handyman employed by defendant’s managing agent, was injured when the landing of a metal staircase in the sub-basement of defendant’s building collapsed under him, causing him to fall about 20 feet to the cement floor below. Plaintiff established prima facie that defendant had constructive notice of the defective condition of the stairs by submitting photographs showing the staircase covered in rust, and evidence that defendant had no program of inspection for the staircase and had never inspected it in the 27 years preceding the accident (seeHayes v. Riverbend Hous. Co., Inc., 40 AD3d 500, 501 [1st Dept 2007], lv denied 9 NY3d 809 [2007]; Serna v. 898 Corp., 90 AD3d 560 [1st Dept 2011]). In opposition, defendant failed to raise an issue of fact as to constructive notice.We note that stairs do not ordinarily collapse absent negligence, and plaintiff did not contribute to the happening of the accident.We have considered defendant’s remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5903-5903A. In re Pamela N., pet-res, v. Aaron A., res-res — Carol L. Kahn, New York, for ap — Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.—Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about April 20, 2016, which, after a hearing, granted petitioner mother’s motion for temporary emergency jurisdiction in New York under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Domestic Relations Law §76-c, and granted her a temporary order of custody of the subject child and a temporary order of protection against respondent father based on findings that he committed acts of domestic violence against the mother and child, unanimously affirmed, without costs. Order, same court and Judge, entered on or about November 28, 2016, denying the father’s motion to vacate an order, same court and Judge, entered on or about June 27, 2016, which, upon his default, granted the mother a final order of custody of the subject child and an order of protection, unanimously affirmed, without costs.While the ultimate dispositional order was entered on default, the fact-finding order was not, inasmuch as the father’s counsel actively participated and the court drew a negative inference from the father’s failure to testify rather than continuing the hearing as an inquest (compare Matter of Iyana W.[Shamark W.], 124 AD3d 418 [1st Dept 2015]). Thus, the appeal from the order of fact-finding is properly taken. The father’s challenge to the court’s exercise of emergency jurisdiction is unavailing, however. In light of the mother’s testimony and documentary evidence, including prior neglect findings against the father showing the father’s violent behavior toward her, the child and his older children, as well as his failure to testify or offer evidence in his defense, the record supports the finding that there was imminent risk under Domestic Relations Law §76-c of the child returning to a home where abuse or neglect occurred (see Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d 77 [4th Dept 2011], appeal dismissed 19 NY3d 845 [2012]).The father’s motion to vacate his default at the dispositional hearing was properly denied, since he failed to provide any evidence in support of his claim that he was financially unable to appear in Family Court (see e.g. Matter of Christopher James A. [Anne Elizabeth Pierre L.], 90 AD3d 515 [1st Dept 2011], lv denied 18 NY3d 918 [2012]; Matter of Isaiha M. [Atavia M.], 115 AD3d 575 [1st Dept 2014]). He never called his counsel or the court to advise that he would not appear, and failed to appear on dates of which he had advance notice and had requested (see Matter of Ilyas Zaire A.-R. (Habiba A.-R.), 104 AD3d 512 [1st Dept 2013], lv denied 21 NY3d 859 [2013]). It is further noted that the father had funds to travel to New York on prior occasions (see Matter of Cornelius G., 2 AD3d 283 [1st Dept 2003], lv dismissed 2 NY3d 759 [2004]).The father also failed to set forth a meritorious defense. Contrary to his argument, he failed to avail himself of multiple opportunities to testify or submit evidence on his behalf (see Matter of Amirah Nicole A. [Tamika R.], 73 AD3d 428, 428 [1st Dept 2010], lv dismissed 15 NY3d 766 [2010]). Absent a showing of exceptional circumstances, the court in its discretion properly denied the father’s request to testify by videoconference (Matter of State of New York v. Robert F., 25 NY3d 448 [2015]). Nor is there support for the father’s argument that the mother was attempting to avoid jurisdiction in North Carolina.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5904-5905. PEOPLE, res, v. Jacoboi Feliz, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for res — Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 29, 2007, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him to a term of one year, and judgment, same court (Michael R. Ambrecht, J. at plea; Laura A. Ward, J. at sentencing), rendered January 29, 2007, as amended February 9, 2007, convicting defendant, upon his plea of guilty, of bail jumping in the second degree, and sentencing him to a concurrent term of one year, unanimously affirmed.Because defendant did not move to withdraw his guilty pleas, and because none of the recognized exceptions to the preservation requirement applies (see People v. Pastor, 28 NY3d 1089 [2016]; People v. Conceicao, 26 NY3d 375, 381-382 [2015]; People v. Peque, 22 NY3d 168, 182-183 [2013]), defendant did not preserve any of his challenges to the voluntariness of his pleas, and we decline to review them in the interest of justice. As an alternative holding, we conclude that defendant has not established that he is entitled to have his pleas vacated on any of the grounds he asserts.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5906. In re Paula Assimakopoulos, Deceased. Eva Lana, pet-ap, v. Nicolle Assimakopoulos-Panuthos, res-res — Eva Lana, appellant pro se. Nicolle Assimakopoulos-Panuthos, respondent pro se.—Decree, Surrogate’s Court, New York County (Rita Mella, S.), entered on or about September 25, 2013, which, among other things, granted limited ancillary letters of administration c.t.a. to cross petitioner Nicolle Assimakopoulos-Panuthos, and bringing up for review an order, same court and Surrogate, entered on or about June 26, 2013, which denied petitioner Eva Lana’s motion to renew, unanimously reversed, on the law and the facts, without costs, the decree vacated, the letters revoked, and letters of administration c.t.a. issued to the Public Administrator of New York County.Based on the evidence presented by petitioner Eva Lana on her motion to renew, the court should have granted renewal, and upon renewal, determined that decedent was a New York domiciliary.Even if the Florida court had decided that decedent was a domiciliary of that state, “the decree of the State of original probate is not conclusive on the question of domicile or residence” (Matter of Cornell, 267 NY 456, 462 [1935], cert denied 297 US 708 [1936]). Accordingly, this Court may make an independent inquiry into domicile (see Matter of Neumayer, 168 Misc 173, 179 [Sur Ct, Oneida County 1938], appeal dismissed 256 App Div 1039 [4th Dept 1939]).Assimakopoulos-Panuthos failed to meet her burden of showing, by clear and convincing evidence, that decedent had changed her domicile from New York to Florida (see Matter of Ranftle, 108 AD3d 437, 441 [1st Dept 2013], affd 22 NY3d 1146 [2014], cert denied 135 S Ct 270 [2014]). The documentation submitted by petitioner in support of her motion to renew, showed that decedent voted in New York, her driver’s license was from New York, and her passport application used her New York address (see Matter of Winkler, 171 AD2d 474, 475 [1st Dept 1991], lv dismissed 78 NY2d 908 [1991]). She filed New York State tax returns (see Ranftle, 108 AD3d at 439), and her will and death certificate said she was from New York (see Matter of Gadway, 123 AD2d 83, 86 [3d Dept 1987]). Moreover, when decedent left New York for Florida in July 2009, she said she intended to return, but never did because of medical complications (see Matter of Lockwood, 147 NYS2d 106, 107-110 [Sur Ct, Suffolk County 1955]).Since decedent was a New York domiciliary, ancillary probate in this state is inappropriate, even though her will has already been probated in Florida (Matter of Rosenak, 184 Misc 2d 807, 809 [Sur Ct, Kings County 2000]; see also Matter of Beban, 135 Misc 25, 34 [Sur Ct, NY County 1929]). Therefore, the grant of ancillary letters to Assimakopoulos-Panuthos is revoked, and nonancillary letters are granted to the Public Administrator.The choice of the Public Administrator is appropriate given the inability of decedent’s daughters (Lana and Assimakopoulos-Panuthos) to work together; we note that the court appointed the Public Administrator as the administrator of the sisters’ father’s estate (see Estate of Nick Assimakopoulos, 2017 WL 2937491, *1, 2017 NYLJ LEXIS 1760, *1 [Sur Ct, NY County, July 5, 2017, No. 2011-874/B]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5907. PEOPLE, res, v. Alberto Calderon, def-ap — Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel), for ap — Judgment, Supreme Court, New York County (Larry Stephen, J.), rendered November 16, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5908. &PEOPLE, M-167res, v. Jacob Nolan, def-ap — Law Office of Stephen N. Preziosi, P.C., New York (Stephen N. Preziosi of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), for res — Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered July 27, 2016, convicting defendant, after a jury trial, of attempted murder in the second degree, burglary in the first degree (two counts) and attempted assault in the first and second degrees, and sentencing him to an aggregate term of 9 years, unanimously affirmed.The court properly permitted the People to introduce portions of their psychiatric expert’s videotaped interview of defendant. Although defendant did not assert an affirmative psychiatric defense such as insanity, he presented psychiatric evidence in an effort to negate the element of intent. This opened the door to the receipt, for limited purposes, of evidence of the People’s expert’s examination (seegenerally People v. Segal, 54 NY2d 58 [1981]). To the extent that defendant argues that CPL 60.55 limits the admissibility of this type of evidence to cases involving affirmative psychiatric defenses, that claim is unpreserved, and without merit in any event (seePeople v. Cobo, 245 AD2d 72 [1st Dept 1997], lv denied 91 NY2d 1006 [1998]). The interview did not improperly introduce new facts as evidence, and the People did not misuse the interview in their summation or otherwise. Furthermore, this evidence could not have caused defendant any prejudice, particularly in light of the court’s thorough limiting instructions, which the jury is presumed to have followed (see People v. Davis, 58 NY2d 1102, 1104 [1983]).The court providently exercised its discretion in precluding defendant from cross-examining the People’s expert about his ability to form a legal conclusion as to whether defendant’s cousin was criminally involved in the crimes at issue, in which defendant attacked his cousin’s ex-husband. This line of questioning was too remote from the issue of the expert’s bias to warrant its admission (see People v. Thomas, 46 NY2d 100, 105 [1978], appeal dismissed 444 US 891 [1979]),Defendant’s constitutional arguments relating to the above-discussed issues, and all of his remaining claims of trial error, are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. We have also considered and rejected defendant’s ineffective assistance of counsel claims relating to the issues we have found to be unpreserved (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v. Washington, 466 US 668 [1984]).We perceive no basis for reducing the sentence.We find no basis for enlarging the record to include matters relating to the recently commenced prosecution of defendant’s cousin for her alleged role in this crime. These matters are irrelevant to the issues raised on defendant’s appeal.M-167 People v. Jacob NolanMotion to enlarge the record and for related relief denied.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5909. 135 Bowery LLC plf-res, v. Beach Channel Shoppers Mart Co., LLC, def-ap — Lindenbaum & Young P.C., Long Island City (Robert J. Young of counsel), for ap — Stein Riso Mantel McDonough, LLP, New York (Gerard A. Riso of counsel), for res — Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about June 3, 2016, which granted plaintiffs’ motion for summary judgment on the complaint, and denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.Plaintiffs established prima facie that defendant aided and abetted a fraud (see Oster v. Kirschner, 77 AD3d 51, 55 [1st Dept 2010]). Copious documentation demonstrates that, without plaintiffs’ authorization, defendant’s now deceased managing member, Alan Young, acting as plaintiffs’ attorney in a real estate transaction, funneled a portion of escrowed funds through defendant, and then disbursed the funds to affiliated entities. This transaction was part of a larger scheme to defraud plaintiffs of the proceeds of the sale of their property. Given that Young, as managing member of defendant and the sole signatory on defendant’s bank account, perpetrated the fraud, knowledge of the fraud can be imputed to defendant (see Kirschner v. KPMG LLP, 15 NY3d 446, 465 [2010]). Defendant then provided substantial assistance in the fraud by placing the proceeds of the fraud beyond plaintiffs’ reach, thereby causing plaintiffs harm (see Chambers v. Weinstein, 135 AD3d 450 [1st Dept 2016]). In opposition, defendant failed to raise an issue of fact.Plaintiffs established a prima facie case of conversion (see State of New York v. Seventh Regiment Fund, 98 NY2d 249, 259 [2002]; Lemle v. Lemle, 92 AD3d 494, 497 [1st Dept 2012] ["(C)onversion occurs when funds designated for a particular purpose are used for an unauthorized purpose"]). It is undisputed that defendant possessed plaintiffs’ funds without authorization and in derogation of plaintiffs’ right of ownership. That the possession was only temporary raises no issue of fact (cf. People v. Hardy, 26 NY3d 245, 250 [2015] ["The 'taking' element of larceny 'is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights"]).We need not determine whether the record establishes plaintiffs’ unjust enrichment claim as a matter of law, since the damages sought under that claim are the same as those sought under the other claims.Defendant’s contention that under the doctrine of respondeat superior it cannot be held liable because Young was acting outside the scope of his employment when he committed his fraudulent acts was not raised before the motion court and thus is not properly before us. In any event, we reject the argument (see Kirschner, 15 NY3d at 465).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5910. PEOPLE, res, v. Ruben Garcia, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for res — An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Albert Lorenzo, J.), rendered February 14, 2017,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5911-5912. PEOPLE, res, v. Lakira McPhail, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for res — An appeal having been taken to this Court by the above-named appellant from judgments of the Supreme Court, New York County (Bonnie Wittner, J.), rendered February 17, 2016,Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,It is unanimously ordered that the judgments so appealed from be and the same are hereby affirmed.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.Counsel for appellant is referred to§606.5, Rules of the AppellateDivision, First Department.By Friedman, J.P., Tom, Webber, Kern, JJ.5914N. Keesha Carr, plf-res, v. Trans American Express, Inc., et al., def-ap — Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for ap — Law Firm of Vaughn, Weber & Prakope, PLLC, Mineola (John A. Weber IV of counsel), for res — Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered August 18, 2016, which, in an action arising out of a motor vehicle accident that occurred in Bronx County, denied defendants’ motion to change venue from New York County to Nassau County, and granted plaintiff’s cross motion to change venue from New York County to Bronx County, unanimously reversed, on the law and the facts, the motion granted, and the cross motion denied, without costs.Plaintiff Keesha Carr chose an improper place of trial in the first instance by placing venue in New York County. It is undisputed that she resided in Nassau County when the action was commenced; plaintiff does not allege that the individual defendant resided, or that the corporate defendant had a principal office, within New York County.Supreme Court improvidently exercised its discretion by denying defendants’ motion to change venue (see Newman v. Physicians’ Reciprocal Insurers, 204 AD2d 210 [1st Dept 1994]), because they established that plaintiff resided in Nassau County when the action was commenced (CPLR 503[a]).Although plaintiff was not precluded from making an application to change venue pursuant to CPLR 510(3) (see Berberich v. York Scaffold Equip. Corp., 177 AD2d 451, 451-452 [1st Dept 1991]; Carrasco v. Cablevision Sys. Corp., 248 AD2d 122, 123 [1st Dept 1998]), the court improvidently exercised its discretion in granting her cross motion because plaintiff failed to demonstrate, inter alia, the existence of material witnesses whose convenience is at issue, and the substance of their testimony (see Oquendo v. Nationwide Ins. Co., 270 AD2d 174, 175-176 [1st Dept 2000]; Bonfeld v. Suburban Tr. Corp., 236 AD2d 335, 336 [1st Dept 1997]; Quiles v. Orsi, 182 AD2d 499, 499-500 [1st Dept 1992]).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
