Appellate Division Second Department Hand Down List decided on: February 28, 2018 By Balkin, J.P.; Austin, Lasalle and Brathwaite Nelson, JJ.

Appellate DivisionSecond DepartmentHand Down List decided on:February 28, 2018By Balkin, J.P.; Austin, Lasalle and Brathwaite Nelson, JJ.Pamela Yvars, ap, v. Marble Heights of Westchester, Inc. res — (Index No. 59412/13)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Walker, J.), dated June 21, 2016, as granted those branches of the separate motions of the defendant Marble Heights of Westchester, Inc., and the defendant Sal Gentile Landscaping, LLC, which were for summary judgment dismissing the complaint insofar as asserted against each of them.ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Sal Gentile Landscaping, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Sal Gentile Landscaping, LLC, and one bill of costs to the defendant Marble Heights of Westchester, Inc., payable by the plaintiff.The plaintiff allegedly was injured when she slipped and fell on a patch of ice in her condominium complex. The plaintiff commenced this action to recover damages for her personal injuries against Marble Heights of Westchester, Inc. (hereinafter Marble Heights), the homeowners association for the complex, and Sal Gentile Landscaping, LLC (hereinafter Gentile), the snow removal contractor hired by Marble Heights to plow and salt the premises. After the completion of discovery, Gentile and Marble Heights separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted those branches of the motions, and the plaintiff appeals.“A limited contractual undertaking to provide snow removal services generally does not render the contractor liable in tort for the personal injuries of third parties” (Baratta v. Home Depot USA, 303 AD2d 434, 434). However, the Court of Appeals has recognized three exceptions to the general rule: ”(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 [internal quotation marks and citations omitted]).“[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” (Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214; see Knox v. Sodexho Am., LLC, 93 AD3d 642). Here, Gentile did not dispute that the pleadings sufficiently alleged facts which would establish that it had exacerbated the icy conditions in attempting to clear the area of snow where the plaintiff fell, thereby launching a force or instrument of harm (see Santos v. Deanco Servs., Inc., 104 AD3d 933, 934), and it submitted evidence which it contended demonstrated that Gentile did not launch a force or instrument of harm.Although Gentile submitted the deposition testimony of its owner, Sal Gentile, as to his typical snow removal practices at the Marble Heights complex, Gentile submitted no evidence concerning snow removal efforts for the snowfall which preceded the plaintiff’s accident. Therefore, Gentile did not affirmatively establish that it did not launch a force or instrument of harm (see id. at 934; Rubistello v. Bartolini Landscaping, Inc., 87 AD3d 1003, 1005). Since Gentile failed to make the requisite showing, the sufficiency of the plaintiff’s papers in opposition need not be considered (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). Accordingly, that branch of Gentile’s motion which was for summary judgment dismissing the complaint insofar as asserted against it should have been denied.The Supreme Court, however, properly granted that branch of Marble Heights’ motion which was for summary judgment dismissing the complaint insofar as asserted against it. Contrary to the plaintiff’s assertion, Marble Heights demonstrated that it lacked actual or constructive notice of the black ice condition upon which the plaintiff allegedly slipped (see Christal v. Ramapo Cirque Homeowners Assoc., 51 AD3d 846; Robinson v. Trade Link Am., 39 AD3d 616, 616-617). In opposition to Marble Heights’ demonstration of its prima facie entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).BALKIN, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Barros, Nelson and Christopher, JJ.MATTER of Joseph Sarfati, res-ap, v. Christine DeJesus, appellant-res — (Proceeding No. 1)MATTER of Christine DeJesus, appellant- res, v. Joseph Sarfati, res-res — (Proceeding No. 2) (Docket Nos. V-21559-09, V-21560-09, V-23618-09, V-23619-09)Heath J. Goldstein, Jamaica, NY, for appellant-respondent.Linda C. Braunsberg, Staten Island, NY, for respondent-appellant.Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the children.Appeals by the mother and cross appeals by the father from stated portions of (1) an order of the Family Court, Kings County (Anthony Cannataro, J.), dated April 8, 2016, and (2) an amended order of that court (Amanda White, J.) dated October 26, 2016. Both orders, after a hearing, inter alia, awarded sole legal and physical custody of the parties’ children to the mother, restricted the mother’s ability to relocate with the children, and awarded the father visitation with the children on the first, third, and fourth weekends of each month.ORDERED that the appeal and cross appeal from the order dated April 8, 2016, are dismissed as academic, without costs or disbursements, in light of our determination on the appeal and cross appeal from the amended order dated October 26, 2016; and it is further,ORDERED that the amended order dated October 26, 2016, is modified, on the law, (1) by adding thereto a provision vacating the order dated April 8, 2016, and (2) by deleting the provision thereof awarding the father visitation with the children on the first, third, and fourth weekends of each month, and substituting therefor a provision awarding the father visitation with the children on alternate weekends, from Friday after school until Sunday at 5:00 p.m.; as so modified, the amended order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.The parties are the parents of two sons. The record supports a finding by a preponderance of the evidence that the parties’ relationship was marked by a significant history of domestic violence perpetrated by the father against the mother. After a particularly egregious incident in 2009, after which the mother fled with the children, the father petitioned for sole custody of the children and the mother cross-petitioned for the same relief.After a hearing, the Family Court issued an order dated April 8, 2016, inter alia, awarding sole legal and physical custody of the children to the mother and visitation to the father. Thereafter, upon the motion of the attorney for the children for resettlement, the court issued an amended order dated October 26, 2016, which replaced the April 8, 2016, order and modified certain aspects of visitation that are not relevant to these appeals and cross appeals. The mother appeals and the father cross-appeals from stated portions of the order and the amended order.The father’s contention that he should have been awarded sole or joint custody is not properly before this Court, since he consented to an award of sole custody to the mother at the outset of the protracted hearing and did not renew or revive a request for custody during the hearing (see Matter of Ciara B. [Edward T.-Ala B.], 96 AD3d 833, 834; Matter of Binong Xu v. Sullivan, 91 AD3d 771). Further, the record demonstrates no basis for a new hearing as to the issue of custody (see generally Eschbach v. Eschbach, 56 NY2d 167, 171).“The determination of visitation to a noncustodial parent is within the sound discretion of the hearing court, based upon the best interests of the children, and it should not be set aside unless it lacks a sound and substantial basis in the record” (Matter of Dennis D. [Justesen], 83 AD3d 700, 702; see Matter of Sanders v. Jaco, 148 AD3d 812, 814; Matter of Herrera v. O’Neill, 20 AD3d 422, 423). ”Visitation is a joint right of the noncustodial parent and of the child” (Weiss v. Weiss, 52 NY2d 170, 175). ”Absent extraordinary circumstances where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges” (Matter of Brian M. v. Nancy M., 227 AD2d 404, 404; see Matter of Savage v. Morales, 147 AD3d 861, 861). At the same time, a visitation schedule that “deprives the [custodial parent] ‘of any significant quality time’ with the children[ ] is… ‘excessive’” (Matter of Felty v. Felty, 108 AD3d 705, 708, quoting Chamberlain v. Chamberlain, 24 AD3d 589, 593; see Matter of Rivera v. Fowler, 112 AD3d 835, 836; Cesario v. Cesario, 168 AD2d 911).Here, the visitation schedule awarding the father visitation with the school-aged children three weekends per month was excessive, as it effectively deprived the mother of any significant quality time with the children (see Matter of Patrick v. Farris, 39 AD3d 864, 865; see also Matter of Razdan v. Mendoza-Pautrat, 137 AD3d 1149, 1150; Matter of Rivera v. Fowler, 112 AD3d at 836). Under the circumstances of this case, including the mother’s consent to alternate weekend visitation, we find that it would be more appropriate to award the father visitation on alternate weekends.The mother failed to demonstrate, based on this record, that it would be detrimental to the well-being of the younger child to visit with the father alone when the older child is not available for visitation (see Matter of Rodriguez v. Silva, 121 AD3d 794, 795; Matter of Nancy M. v. Brian M., 227 AD2d at 404). Moreover, there is a sound and substantial basis in the record for the provisions of the amended order permitting the father to spend certain religious holidays with the children, outside of school hours (see Matter of Waldron v. Dussek, 48 AD3d 471, 472-473; cf. Mars v. Mars, 286 AD2d 201, 203). Further, there is a sound and substantial basis in the record for the remaining visitation provisions that are challenged by the mother (see Matter of Frankiv v. Kalitka, 105 AD3d 1045; Matter of Andrews v. Mouzon, 80 AD3d 761, 763).Finally, the Family Court did not improvidently exercise its discretion in prohibiting the mother from relocating with the children beyond a certain distance without the consent of the father.LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Tina Leggio, pet, v. Sharon Devine, etc. res — (Index No. 10161/15)Proceeding pursuant to CPLR article 78 to review an amended determination of a designee of the Commissioner of the New York State Office of Temporary and Disability Assistance dated December 30, 2014, which, after a fair hearing pursuant to Social Services Law §22 and 18 NYCRR part 358, affirmed a determination of the Suffolk County Department of Social Services discontinuing the petitioner’s Supplemental Nutritional Assistance Program benefits.ADJUDGED that the amended determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.In October of 2014, the petitioner applied to the Suffolk County Department of Social Services (hereinafter the agency) to continue her Supplemental Nutritional Assistance Program (hereinafter SNAP) benefits, commonly known as food stamps. At that time, the petitioner lived with, among others, five of her children, who were all under the age of 21 years. Two of the petitioner’s children, then 18 and 19 years old, respectively, were full-time college students (hereinafter together the college students). When determining whether the petitioner was eligible to have her SNAP benefits continued, the agency did not count the college students as part of the household because they were adults over the age of 18 years attending college full time who did not qualify for an exemption from work requirements (see 7 CFR 273.5[a]; 18 NYCRR 387.1[x], [jj]). However, the agency did count as household income the entire amount of child support received by the petitioner for all five of her children under the age of 21 years, including the college students. Based upon those calculations, the agency, by notice dated October 16, 2014, advised the petitioner that her SNAP benefits were discontinued (hereinafter the October 2014 determination).After a fair hearing, in an amended determination dated December 30, 2014, the New York State Office of Temporary and Disability Assistance (hereinafter OTDA), by a designee of its Commissioner, affirmed the October 2014 determination. OTDA determined that the child support attributable to the college students should be included in household income, on the grounds that the college students were not living outside the household, and the child support was given to the petitioner and was under her control. The petitioner commenced this proceeding pursuant to CPLR article 78 challenging the amended determination. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g) to consider whether the determination was supported by substantial evidence.The facts of this case are for the most part undisputed, and the crux of this case is an interpretation of the applicable regulations. Therefore, as the petition did not raise a question of substantial evidence, the transfer of this proceeding to this Court was erroneous. Nevertheless, in the interest of judicial economy, this Court will decide the proceeding on the merits (see Matter of Benjamin v. McGowan, 275 AD2d 290, 291; Matter of Church v. Wing, 229 AD2d 1019, 1019-1020; Matter of Molloy v. Bane, 214 AD2d 171, 173; Matter of City School Dist. of City of Elmira v. New York State Pub. Empl. Relations Bd., 144 AD2d 35, 37, affd 74 NY2d 395).The petitioner’s primary contention is that she was entitled to SNAP benefits because “the income of college students who are ineligible for SNAP benefits must be excluded from the income calculation of the SNAP household” pursuant to federal and state regulations. She also claims that this exclusion is supported by a determination made by OTDA in a different case on November 8, 2013 (hereinafter the November 2013 determination). In response, OTDA contends, among other things, that the child support attributable to the college students should not be excluded from the income calculation of the petitioner’s household because child support payments are income to the parent, not income to the child. OTDA’s contention is without merit. A child support obligation differs from alimony or spousal support, in that it is an obligation “to the child, not to the payee spouse, [therefore] the death of the payee spouse does not terminate the obligation” (Matter of Modica v. Thompson, 300 AD2d 662, 663). ”‘A custodial parent, a foster parent or the Commissioner of Social Services are no more than conduits of that support from the noncustodial parent to the child’” (id. at 663, quoting Matter of Commissioner of Social Servs. v. Grifter, 150 Misc 2d 209, 212 [Fam Ct, NY County]). The regulations provide for the prorating of a single payment which is for the benefit of several persons (see 7 CFR 273.9[c][6]; 18 NYCRR 387.11[i]). In this case, the pro rata portion of the child support award attributable to each child can be readily identified by dividing the award by the number of children.The petitioner’s contention that OTDA must apply the reasoning of the November 2013 determination to the instant case is without merit. Administrative agencies are “free, like courts, to correct a prior erroneous interpretation of the law” (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 519). The November 2013 determination was erroneous and, therefore, should not be followed. In that case, and in the instant case, the college students were part of the household pursuant to 7 USC §2012(m)(2) and 18 NYCRR 387.1(x)(2)(i)(c). They were disqualified from receiving benefits, primarily because they do not comply with work requirements. Therefore, they could not be counted in determining the number of persons in the household, but their pro rata share of child support was includable in household income.The petitioner contends that the income of the college students should have been excluded pursuant to 7 CFR 273.11(d) and 18 NYCRR 387.16(d), both of which address the “treatment of income and resources of other nonhousehold members.” However, inclusion of income from certain specific persons who shall not be considered members of the household in determining house size is explicitly provided for in 7 CFR 273.11(c)(1). These include persons disqualified because of “an intentional Program violation, a felony drug conviction, their fleeing felon status, noncompliance with a work requirement of [7 CFR] 273.7, or imposition of a sanction while they were participating in a household disqualified because of failure to comply with workfare requirements” (7 CFR 273.11[c][1]). The college students, as noted above, were disqualified primarily because of their failure to comply with work requirements.Pursuant to 7 CFR 273.7(a)(1), “[a]s a condition of eligibility for SNAP benefits, each household member not exempt under paragraph (b)(1) of this section must comply with the following SNAP work requirements,” including registering for work. According to 7 CFR 273.7(b)(1)(viii), students enrolled at least half time in institutions of higher education are only exempt if they meet “the student eligibility requirements listed in” 7 CFR 273.5(b), which includes students under 18, students with special needs, students in work study programs, or students employed for a minimum of 20 hours per week.Similarly, 18 NYCRR 387.16(d) provides for the inclusion of income from nonhousehold members who have been disqualified for an intentional program violation, ineligible alien status, failure to attest to citizenship or alien status, or failure to comply with a food stamp work registration or work requirement as provided in 18 NYCRR 385.3. Under 18 NYCRR 385.3 and 18 NYCRR 387.1(jj), such students are not exempt from work requirements, and are not eligible for food stamps. Pursuant to 18 NYCRR 387.16(d) their income has to be included in household income.The college students were not employed a minimum of 20 hours per week or otherwise eligible for an exemption. Accordingly, their income was properly included in household income.In view of the foregoing, the amended determination was correct.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Thomas P. Ural, res-ap, v. Encompass Insurance Company of America appellants- respondents def — (Index No. 2208/07)Appeal and cross appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 8, 2015. The order, insofar as appealed from, denied the motion of the defendants Encompass Insurance Company of America and Encompass Insurance Company for a protective order pursuant to CPLR 3103(a) with respect to the plaintiff’s third notice for discovery and inspection, and granted that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126(3) to strike their verified answer and for leave to enter a default judgment against them to the extent of conditionally striking certain portions of their verified answer and precluding them from offering certain evidence at trial if they failed to comply with the plaintiff’s outstanding discovery demands in the third notice for discovery and inspection and if they failed to produce for in camera inspection a log of certain claimed privileged and work product documents. The plaintiff filed a notice of cross appeal from the order.ORDERED that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126(3) to strike the verified answer of the defendants Encompass Insurance Company of America and Encompass Insurance Company and for leave to enter a default judgment against those defendants to the extent of conditionally striking certain portions of the verified answer and precluding them from offering certain evidence at trial if they failed to comply with the plaintiff’s outstanding discovery demands in the third notice for discovery and inspection, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.The underlying facts of this case are summarized in the decision and order of this Court on a prior appeal in this action (see Ural v. Encompass Ins. Co. of Am., 97 AD3d 562). On the prior appeal, this Court reinstated the plaintiff’s causes of action to recover damages for unfair trade practices under General Business Law §349 and for violation of Insurance Law §2601, which prohibits unfair claim settlement practices. This Court determined that the defendants Encompass Insurance Company of America and Encompass Insurance Company (hereinafter together Encompass) were required to produce the documents contained in the plaintiff’s claim file to the extent of directing Encompass to provide the Supreme Court with a “detailed privilege log” of documents claimed to be exempt from disclosure based upon a privilege or as work product for litigation (Ural v. Encompass Ins. Co. of Am., 97 AD3d at 567). This Court further determined that the Supreme Court properly denied that branch of the plaintiff’s motion which was to compel Encompass to comply with certain discovery demands because the demands were overbroad, lacked specificity, or sought irrelevant information, but declined to grant a protective order (see CPLR 3103).After depositions of various witnesses, the plaintiff served Encompass with a third notice for discovery and inspection which made specific references to the deposition testimony in seeking, inter alia, various documents and other material. Encompass then moved for a protective order pursuant to CPLR 3103(a) with respect to the third notice for discovery and inspection, contending that the plaintiff was attempting to obtain, in numerous instances, information and documents that the Supreme Court and this Court had deemed to be palpably improper. The plaintiff cross-moved, inter alia, pursuant to CPLR 3126(3) to strike Encompass’s verified answer and for leave to enter a default judgment against it for failure to comply with the plaintiff’s outstanding discovery demands in the third notice for discovery and inspection and for failure to produce for in camera inspection the “detailed privilege log” which this Court, on the prior appeal, had directed Encompass to produce.The Supreme Court denied Encompass’s motion pursuant to CPLR 3103(a) for a protective order, and granted that branch of the plaintiff’s cross motion which was pursuant to CPLR 3126(3) to strike Encompass’s verified answer and for leave to enter a default judgment against it to the extent of conditionally striking certain portions of the verified answer and precluding Encompass from offering certain evidence at trial if Encompass failed to comply with the plaintiff’s outstanding discovery demands from his third notice for discovery and inspection and produce the detailed privilege log for in camera inspection.Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or information, or is overly broad and burdensome (see Greenman-Pedersen, Inc. v. Zurich Am. Ins. Co., 54 AD3d 386, 387; Gilman & Ciocia, Inc. v. Walsh, 45 AD3d 531). Contrary to Encompass’s contention, the plaintiff’s third notice for discovery and inspection was not palpably improper or overly broad and burdensome. Unlike the first two notices for discovery and inspection, the third notice for discovery and inspection provided specific references to deposition testimony, details, and time parameters, and sought information material and necessary to the pending causes of action (see Yoshida v. Hsueh-Chih Chin, 111 AD3d 704). Accordingly, Encompass’s motion pursuant to CPLR 3103(a) for a protective order against the plaintiff’s third notice for discovery and inspection was properly denied.Further, the Supreme Court properly granted that branch of the plaintiff’s cross motion which was for relief pursuant to CPLR 3126(3) based upon Encompass’s failure to comply with the prior order of this Court directing it to produce a detailed privilege log for in camera inspection (see Morales v. Zherka, 140 AD3d 836; Padovano v. Teddy’s Realty Assoc., Ltd., 31 AD3d 514, 515). Examination of the detailed privilege log in camera is necessary before a determination of whether certain items demanded in the third notice of discovery and inspection should in fact be disclosed. If such a log does not exist, then Encompass should so state to the Supreme Court as the reason for failing to produce it (see CPLR 3120[1][I]; Crawford v. Burkey, 124 AD3d 1184; Romeo v. City of New York, 261 AD2d 379; Corriel v. Volkswagen of Amer., 127 AD2d 729, 731). However, if such a log does not exist, Encompass cannot claim that the items demanded were privileged.The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s cross motion which was for relief pursuant to CPLR 3126(3) for failure to comply with the balance of the plaintiff’s third notice for discovery and inspection, as there has been no clear showing that Encompass’s lack of compliance with the third notice for discovery and inspection was willful and contumacious (see Dimoulas v. Roca, 120 AD3d 1293; Barnes v. City of New York, 43 AD3d 1094; Patel v. DeLeon, 43 AD3d 432, 432-433). The items demanded in the third notice for discovery and inspection should be produced, and sanctions pursuant to CPLR 3126 should only be considered if Encompass continues to resist disclosure.The plaintiff’s cross appeal must be dismissed as abandoned, as he does not seek reversal of any portion of the order in his brief (see Matter of Blamoville v. Culbertson, 151 AD3d 1058, 1060; Utility Audit Group v. Apple Mac & R Corp., 59 AD3d 709).HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Miller, Lasalle, Connolly and Brathwaite Nelson, JJ.U.S. Bank National Association, etc., ap, v. Marsha Rose Gordon, etc., respondent def — (Index No. 506363/13)In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated September 17, 2015, which granted that branch of the motion of the defendant Marsha Rose Gordon which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendant Marsha Rose Gordon which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred is denied.In November 2005, the defendant Marsha Rose Gordon borrowed $412,000 and executed a promissory note evidencing her debt in favor of Fremont Investment & Loan. The note was secured by a mortgage on real property located in Brooklyn. Rose Gordon was required to make monthly payments under the terms of the note, but the note and mortgage gave the holder of the note the option of electing to accelerate the entire debt upon Rose Gordon’s default.In 2007, less than two years after the loan was issued, an action to foreclose the mortgage (hereinafter the 2007 action) was commenced against Rose Gordon by “U.S. Bank National Association c/o Chase Home Finance, LLC 10790 Rancho Bernardo Road San Diego, CA 92127″ (hereinafter the prior plaintiff). The complaint in the 2007 action alleged that Rose Gordon had defaulted by failing to make a required monthly payment when it became due, and stated that the plaintiff in that action was electing to call due the entire amount secured by the mortgage.In 2008, an order of reference was issued to the prior plaintiff in the 2007 action. However, in 2011, Rose Gordon was granted leave to serve an answer. In her answer, Rose Gordon asserted that the prior plaintiff lacked standing to commence that action. Thereafter, in response to a motion to compel responses to outstanding discovery requests, Rose Gordon cross-moved, inter alia, to dismiss the 2007 complaint on the ground that the prior plaintiff lacked standing. The prior plaintiff subsequently moved for leave to amend the caption to reflect U.S. Bank N.A., as Trustee of J.P. Morgan Acquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2, as successor plaintiff.In an order dated May 16, 2013, the Supreme Court determined that the prior plaintiff was not the holder of the note when the 2007 action was commenced. Accordingly, the court granted that branch of Rose Gordon’s cross motion which was to dismiss the 2007 complaint for lack of standing. The court denied, as academic, that branch of the prior plaintiff’s motion which sought leave to amend the caption to reflect the successor plaintiff.The instant action to foreclose the mortgage was commenced on October 22, 2013, by U.S. Bank National Association, as Trustee for J.P. Morgan Acquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2. The complaint (hereinafter the 2013 complaint) alleged that the mortgage had been assigned to the plaintiff in 2009, and that it was the current holder of both the note and the mortgage. The 2013 complaint further alleged that Rose Gordon had defaulted by failing to make monthly payments beginning on March 1, 2007, and that the plaintiff was exercising its option to accelerate the debt and call due the entire amount secured by the mortgage.Rose Gordon thereafter submitted a pre-answer motion, inter alia, to dismiss the 2013 complaint on the ground that the action was barred by the applicable statute of limitations. In support of her motion, Rose Gordon submitted, among other things, a copy of the 2007 complaint. Rose Gordon argued that the 2007 complaint “serve[d] to demonstrate that the mortgage was accelerated as of… March 1, 2007.”The plaintiff opposed Rose Gordon’s motion, inter alia, to dismiss the 2013 complaint. The plaintiff argued that the statute of limitations did not begin to run on the entire mortgage debt until that debt was accelerated and that Rose Gordon’s motion should be denied because the action was timely commenced. The plaintiff further argued that, pursuant to CPLR 205, it was entitled to commence this action within six months after the dismissal of the 2007 action.In the order appealed from, the Supreme Court determined that “the [2007] complaint… demonstrate[d] that the mortgage was accelerated as of… March 1, 2007.” Accordingly, the court granted that branch of Rose Gordon’s motion which was to dismiss the 2013 complaint as time-barred. The court did not address the arguments advanced by the plaintiff in opposition to Rose Gordon’s motion.“A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that… the cause of action may not be maintained because of… [a] statute of limitations” (CPLR 3211[a][5]). As relevant here, “an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein” “must be commenced within six years” (CPLR 213[4]).In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), the court must accept the facts as alleged in the complaint as true, and accord the plaintiff the benefit of every possible favorable inference (see Faison v. Lewis, 25 NY3d 220, 224; Ford v. Phillips, 121 AD3d 1232, 1234; 6D Farm Corp. v. Carr, 63 AD3d 903, 905; see also Leon v. Martinez, 84 NY2d 83, 87-88). ”To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Stewart v. GDC Tower at Greystone, 138 AD3d 729, 729; see Campone v. Panos, 142 AD3d 1126, 1127). ”If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Barry v. Cadman Towers, Inc., 136 AD3d 951, 952; see Stewart v. GDC Tower at Greystone, 138 AD3d at 730).Here, as the plaintiff correctly contends, Rose Gordon failed to sustain her initial burden of demonstrating, prima facie, that the action was untimely. ”The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed” (CPLR 203[a]; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 770). ”With respect to a mortgage payable in installments, separate causes of action accrue[ ] for each installment that is not paid, and the statute of limitations begins to run, on the date each installment becomes due” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982; see Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 754; Loiacono v. Goldberg, 240 AD2d 476, 477; Pagano v. Smith, 201 AD2d 632, 633). However, “even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605; see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982; Lavin v. Elmakiss, 302 AD2d 638, 639; Zinker v. Makler, 298 AD2d 516, 517). ”Where the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder’s election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983; see Esther M. Mertz Trust v. Fox Meadow Partners, 288 AD2d 338, 340; Ward v. Walkley, 143 AD2d 415, 417; see also 1-5 Bergman on New York Mortgage Foreclosures §5.11[2][2017]).Here, Rose Gordon contends, and the Supreme Court concluded, that the allegations contained in the 2007 complaint served to demonstrate that the mortgage was accelerated on March 1, 2007, the date of Rose Gordon’s alleged default in failing to make her required monthly payments. However, inasmuch as the acceleration provisions in the note and mortgage were made optional at the discretion of the holder and were not automatically triggered upon Rose Gordon’s default (see generally 1-4 Bergman on New York Mortgage Foreclosures §4.03[2017]), the allegation in the 2007 complaint that Rose Gordon defaulted on March 1, 2007, did not constitute evidence that the mortgage was accelerated on that date (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 982-983; Esther M. Mertz Trust v. Fox Meadow Partners, 288 AD2d at 340; Ward v. Walkley, 143 AD2d at 417).More relevant to this issue is the fact that the 2007 complaint contained an allegation purporting to accelerate the debt. It is true that, under certain circumstances, the commencement of a foreclosure action may be sufficient to put the borrower on notice that the option to accelerate the debt has been exercised (see        Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983; EMC Mtge. Corp. v. Smith, 18 AD3d 602, 603; Clayton Natl. v. Guldi, 307 AD2d 982, 982; Arbisser v. Gelbelman, 286 AD2d 693, 694). Here, however, it had already been determined that the prior plaintiff in the 2007 action did not have standing to commence that action because it was not the holder of the note and mortgage at the time that the 2007 action was commenced. Accordingly, service of the 2007 complaint was ineffective to constitute a valid exercise of the option to accelerate the debt, since the prior plaintiff did not have the authority to accelerate the debt or to sue to foreclose at that time (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983; EMC Mtge. Corp. v. Suarez, 49 AD3d 592, 593). As such, Rose Gordon’s submission of the 2007 complaint was insufficient, as a matter of law, to demonstrate when the debt was accelerated or when the cause of action accrued (see Wells Fargo Bank, N.A. v. Burke, 94 AD3d at 983; EMC Mtge. Corp. v. Suarez, 49 AD3d at 593).Inasmuch as Rose Gordon made no other argument and submitted no other materials to show that the option to accelerate the maturity of the loan was validly exercised in accordance with the terms of the note and mortgage, she failed, as a matter of law, to establish her prima facie burden of demonstrating “that the time within which to commence the action [had] expired” (Stewart v. GDC Tower at Greystone, 138 AD3d at 729). Under such circumstances, the Supreme Court should have denied that branch of Rose Gordon’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.^*Moreover, even if Rose Gordon had demonstrated that the plaintiff in the 2007 action validly accelerated the debt, her motion should have nevertheless been denied as a matter of law. In opposition to Rose Gordon’s motion, the plaintiff argued, among other things, that it was entitled to commence this action within six months after the dismissal of the 2007 action pursuant to CPLR 205. The Supreme Court neglected to consider this meritorious argument.CPLR 205(a) provides that “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff… may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”Here, the requirements of CPLR 205(a) have been satisfied. It is uncontested that the 2013 action would have been timely commenced in 2007, that Rose Gordon was served within the six-month period after the 2007 action was dismissed, and that the 2013 action is based on the same occurrence as the 2007 action, namely, the default on the payment obligations under the note and mortgage (see CPLR 205[a]). Further, it is undisputed that the dismissal of the prior action was not based upon a voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute the action, or a final judgment on the merits (see CPLR 205[a]).In addressing the plaintiff’s CPLR 205(a) argument, Rose Gordon merely asserted that the plaintiff in this action is not the same entity as the plaintiff in the 2007 action. In response, the plaintiff noted that “the plaintiff in the instant action is seeking to assert the same rights as the plaintiff from the 2007 action. Indeed, both plaintiffs were and are U.S. Bank National Association.” The plaintiff further argued that “the plaintiff in the instant action is merely appearing in a capacity (as a trustee) different from its capacity in the 2007 action, but the identity of the party seeking redress has remained the same.”Although, as a general matter, only the plaintiff in the original action is entitled to the benefits of CPLR 205(a), the Court of Appeals has nevertheless recognized an exception to this general rule under certain circumstances where the plaintiff in the new action is seeking to enforce “the rights of the plaintiff in the original action” (Reliance Ins. Co. v. Polyvision Corp., 9 NY3d 52, 57; see George v. Mt. Sinai Hosp., 47 NY2d 170, 179). More specifically to the facts here, this Court has recently held that “a plaintiff in a mortgage foreclosure action which meets all of the other requirements of the statute is entitled to the benefit of CPLR 205(a) where… it is the successor in interest as the current holder of the note” (Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193, 195).Here, even assuming that there were no questions of fact as to whether the plaintiffs in the 2007 and 2013 actions were legally distinct entities, the plaintiff in this action is entitled to the benefit of CPLR 205(a). As the assignee and subsequent holder of the note and mortgage, the plaintiff in the 2013 action had a statutory right, pursuant to CPLR 1018, to continue the 2007 action in the place of the prior plaintiff once the assignment occurred in 2009, even in the absence of a formal substitution (see CPLR 1018; U.S. Bank N.A. v. Akande, 136 AD3d 887, 890). Indeed, the plaintiff in this action, as the current holder of the note and mortgage, is not seeking to enforce any rights separate and independent from those asserted in the 2007 action (see Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193; cf. Reliance Ins. Co. v. PolyVision Corp., 9 NY3d at 58). Rather, it is seeking to enforce the rights under the note and mortgage by obtaining a judgment of foreclosure and sale, the same rights that the plaintiff in the 2007 action sought to enforce (see Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193; see also George v. Mt. Sinai Hosp., 47 NY2d at 179). Under these circumstances, the plaintiff was entitled to the application of the savings provision contained in CPLR 205(a), and that branch of Rose Gordon’s motion which was to dismiss the complaint as time-barred should have been denied on this ground as well.In sum, since Rose Gordon failed to sustain her prima facie burden of demonstrating that the time within which to commence the action had expired, and since, in any event, the plaintiff demonstrated that the action is not barred by the statute of limitations by application of CPLR 205(a), the Supreme Court should have denied that branch of Rose Gordon’s motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.In light of the foregoing, we need not reach the plaintiff’s remaining contention that Rose Gordon’s written acknowledgment of the debt renewed the statute of limitations pursuant to General Obligations Law §17-101.MILLER, LASALLE and CONNOLLY, JJ., concur.BRATHWAITE NELSON, J., dissents, and votes to affirm the order appealed from, with the following memorandum, in which HALL, J.P., concurs.The majority resolves this appeal on grounds not argued by the appellant or disputed before the motion court. Because the appellant is not entitled to reversal on the grounds argued, I respectfully dissent and vote to affirm the Supreme Court’s order granting that branch of the motion of the defendant Marsha Rose Gordon which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.The plaintiff, U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2, commenced this action in October 2013 to foreclose a mortgage. The complaint alleged that the plaintiff was the holder of the note and entitled to enforce it. The complaint further alleged that the plaintiff was the current holder of the mortgage, having been assigned the mortgage by virtue of an assignment dated January 26, 2009, from US Bank National Association, which had received the mortgage by way of a July 2, 2007, assignment from Mortgage Electronic Registration Systems, Inc. (hereinafter MERS). The complaint stated that Rose Gordon failed to make payments in accordance with the terms of the mortgage, and that the plaintiff was electing to call due the entire amount secured by the mortgage, as more than 30 days had elapsed since the date of default. The complaint did not expressly identify the date of default, but it stated that “Schedule E” set forth the principal balance due and the date and rate from which interest accrued and was owing. ”Schedule E,” which was incorporated into the complaint by reference, identified March 1, 2007, as the date from which interest accrued and was owing. The complaint also incorporated by reference a note dated November 17, 2005, in which Rose Gordon promised to pay Fremont Investment & Loan (hereinafter Fremont) $412,000, with interest beginning on January 1, 2006, and continuing until the maturity date of December 1, 2035. The note included a provision which authorized the note holder to accelerate the full loan amount upon Rose Gordon’s default in payments thereunder. A mortgage of the same date identified MERS as nominee of Fremont for the purposes of recording the mortgage.Rose Gordon moved, inter alia, to dismiss the complaint insofar as asserted against her pursuant to CPLR 3211(a)(5) on the ground that the six-year statute of limitations established by CPLR 213(4) had expired. In support of the motion, Rose Gordon argued that the date of default was March 1, 2007, the mortgage and note at issue had been litigated in a prior action, and the entire mortgage debt had been accelerated, as demonstrated by the complaint in the prior action. She submitted, among other things, the complaint in the prior action, which was filed on or about July 6, 2007 (hereinafter the 2007 action), and which included a declaration that the plaintiff in that action elected to call due the entire amount secured by the mortgage.In opposition to Rose Gordon’s motion, the plaintiff argued that the instant action was timely commenced pursuant to CPLR 205(a). It reasoned that the 2007 action was timely commenced, and then dismissed on May 16, 2013, for lack of standing, and therefore the plaintiff had six months from the date of dismissal, or until November 16, 2013, to commence a new action in foreclosure. The plaintiff did not dispute that the entire mortgage debt was accelerated in 2007, a fact which it acknowledges on appeal. Instead, it relied entirely on the applicability of CPLR 205(a). With its opposition, the plaintiff submitted, inter alia, the Supreme Court’s order dismissing the 2007 action for lack of standing. In the order, among other things, the Supreme Court found that MERS lacked the power to assign the note under the terms of the mortgage.In reply, Rose Gordon argued that the plaintiff was not entitled to the benefit of CPLR 205(a) because it was an entity legally distinct from the plaintiff in the 2007 action, and it was relying on a defective assignment of mortgage to establish its own standing to bring a foreclosure action. In surreply, the plaintiff’s attorney, inter alia, asserted that the plaintiff in this action was not an entity separate and distinct from the plaintiff in the 2007 action, but rather, it was “merely appearing in a different capacity (as a trustee).” In the order appealed from, the Supreme Court granted that branch of Rose Gordon’s motion which was to dismiss the complaint insofar as asserted against her, finding that the subject mortgage debt was previously accelerated and the six-year statute of limitations had run prior to the commencement of this action.On appeal, the plaintiff contends that the Supreme Court erred in finding that CPLR 205(a) was not applicable to this action. Specifically, it argues that it is not an entity legally distinct from the plaintiff in the 2007 action, the identification of U.S. Bank National Association as trustee in this action merely provides additional identifying information, and there is no difference between the plaintiff in the 2007 action and the plaintiff in this action. The plaintiff concedes that the MERS assignment was a “legal nullity” and thereby contends that the subsequent assignment from the plaintiff in the 2007 action to it did not demonstrate the involvement of separate entities.The majority decides this appeal on the ground that the plaintiff failed to make a prima facie showing that the instant action is time-barred. It arrives at this determination by finding that the plaintiff failed to establish that the mortgage debt was accelerated in 2007, and, therefore, that the statute of limitations had begun to run on the entire debt owed. The plaintiff, however, does not make this argument on appeal, and did not contest the fact of prior acceleration in the Supreme Court. The parties to a civil lawsuit are “free to chart their own course” and “may fashion the basis upon which a particular controversy will be resolved” (Cullen v. Naples, 31 NY2d 818, 820; see        Matter of New York Cent. Mut. Fire Ins. Co. v. Dukes, 14 AD3d 704, 705; Davis v. Trey, 187 AD2d 409, 410). Here, in opposition to Rose Gordon’s motion, the plaintiff did not dispute the fact that the mortgage debt was accelerated in 2007 or argue that the declaration in the complaint in the 2007 action was insufficient to establish that the mortgage debt was validly accelerated. To the contrary, the plaintiff argued that the instant action was timely pursuant to CPLR 205(a). Thus, the plaintiff took a position which relied upon the 2007 action having been timely commenced to collect upon the accelerated mortgage debt (cf. CPLR 205[a]). In support of its argument that it was entitled to the benefit of CPLR 205(a), the plaintiff submitted the order dated May 16, 2013, directing dismissal of the 2007 action for lack of standing in order to establish that this action was commenced within six months of the prior action’s termination and that the prior action was not terminated “by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits” (CPLR 205[a]). The plaintiff did not argue, as the majority now finds, that the May 16, 2013, order was proof that the declaration of acceleration in the 2007 complaint was invalid or insufficient to establish that the mortgage debt actually was accelerated. The plaintiff chose to pursue a course which, if successful, would have enabled it to collect on the entire mortgage debt, and not just those payments which became due October 2007 and thereafter (see CPLR 213[4]; Plaia v. Safonte, 45 AD3d 747, 748). The majority thus decides the appeal on a ground that is fundamentally at odds with the course charted by the plaintiff in this lawsuit.In addition, I disagree with the majority’s implicit finding that the question of whether the mortgage debt was accelerated is a pure question of law that may be raised for the first time on appeal (see Carlin v. Hereford Ins. Co., 125 AD3d 917, 919; Benavides v. Uniondale Union Free School Dist., 95 AD3d 809, 810; Polanco v. Lewis Flushing Corp., 91 AD3d 624, 624). Had the plaintiff contested the issue at the motion court, Rose Gordon might have come forward with other proof of acceleration (cf. Wilson v. Galicia Contr. & Restoration Corp., 10 NY3d 827, 829). Furthermore, this issue has not been briefed by either party on appeal. In my view, it is inappropriate to raise this issue sua sponte and resolve the appeal on a ground not relied upon by the plaintiff and of which Rose Gordon had no notice of the need to defend.Finally, the majority asserts that it is merely analyzing the legal issue of whether Rose Gordon met her prima facie burden and that there is no occasion to consider the plaintiff’s opposition to the motion. However, in reaching its conclusion that Rose Gordon’s proof was inadequate, the majority relies on the May 16, 2013, order, in which the Supreme Court determined that the plaintiff in the first action lacked standing to commence the action. This order was submitted by the plaintiff in opposition to the subject motion. Thus, the majority confuses the evidence submitted by the parties in support of and in opposition to the subject motion, and, consequently, errs in its application of the burden-shifting analysis.The issue raised by the plaintiff on its appeal is whether it established the applicability of CPLR 205(a) such that the instant action would be timely as to the entire mortgage debt. As relevant here, CPLR 205(a) provides the plaintiff in an action that was timely commenced but terminated in some manner other than those noted above, with six months to commence a new action (see Reliance Ins. Co. v. Polyvision Corp., 9 NY3d 52, 57). The parties dispute whether the plaintiff established that it was “the plaintiff” with respect to the 2007 action. More specifically, the plaintiff contends that it established that it was the same entity as that prior plaintiff, and the identification “as trustee” in this action merely provides additional information concerning its identity.The 2007 action was commenced by “U.S. Bank National Association c/o Chase Home Finance, LLC 10790 Rancho Bernardo Road San Diego, CA 92127,” which the 2007 complaint alleged was a banking corporation duly organized and existing under and by virtue of the laws of the State of Delaware. This action was commenced by the plaintiff, “U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2,” which the complaint alleges is a “national association, duly licensed, organized and existing pursuant to the laws of the United States of America, doing business in the State of New York,” with an address of 180 East 5th Street, Saint Paul, Minnesota, 55101. In addition, although the plaintiff now asserts that the “assignments are considered legal nullities” and “do not demonstrate the involvement of separate entities,” the instant complaint included, inter alia, a purported assignment of mortgage between the two entities. In light of the above, the conclusory assertion by the plaintiff’s attorney, who did not claim to have any personal knowledge of the facts, made in an affirmation in surreply, that the two entities were legally the same, was insufficient to raise a question of fact as to whether the statute of limitations was tolled pursuant to CPLR 205(a).I also disagree with the majority’s alternative holding that this Court should apply its recent decision in Wells Fargo Bank, N.A. v. Eitani (148 AD3d 193) to find, as a matter of law, that the plaintiff here is entitled to the benefit of CPLR 205(a). In Eitani, a majority of the Court held that “a plaintiff in a mortgage foreclosure action which meets all of the other requirements of the statute is entitled to the benefit of CPLR 205(a) where… it is the successor in interest as the current holder of the note” (Wells Fargo Bank, N.A. v. Eitani, 148 AD3d at 195). There, a mortgage foreclosure action was commenced by Argent Mortgage Company, LLC (hereinafter Argent), in November 2005 (see id.). In 2008, while the action was pending, Argent assigned and delivered the note and mortgage to Wells Fargo Bank, N.A. (hereinafter Wells Fargo) (see id.). The mortgage foreclosure action was dismissed on August 1, 2013, for reasons not relevant here (see id.). On November 25, 2013, Wells Fargo, still the holder of the note and mortgage, commenced a new foreclosure action (see id.). In finding that Wells Fargo was entitled to the benefit of CPLR 205(a), the majority reasoned that when the note and mortgage were transferred to it in 2008, Wells Fargo became Argent’s successor in interest with respect to the right to foreclose under the note and mortgage, and thereby had a statutory right, pursuant to CPLR 1018, to continue the foreclosure action in the original plaintiff’s place, even in the absence of a formal substitution (see Wells Fargo Bank, N.A. v. Eitani, 148 AD3d at 199). Wells Fargo, as the assignee of the note and mortgage, was essentially the plaintiff in the prior action when it was dismissed and, thus, was entitled to the benefit of CPLR 205(a) (see Wells Fargo Bank, N.A. v. Eitani, 148 AD3d at 203).Here, as a threshold matter, the plaintiff does not rely on a successor in interest theory. In any event, the only evidence in the record that the mortgage and note were assigned to the plaintiff is a January 26, 2009, written mortgage assignment, which the plaintiff concedes was a “legal nullity” since it originated from an assignment by MERS, which was never the actual holder or assignee of the underlying note and thus lacked authority to assign it (see Bank of N.Y. v. Silverberg, 86 AD3d 274). Unlike the record in Eitani, the record here fails to establish that the plaintiff became the holder of the note and mortgage while the 2007 action was pending, and that the plaintiff was essentially the plaintiff in the prior action when it was dismissed. The record otherwise fails to establish that the plaintiff is the current holder or assignee of the note and, thus, a successor in interest to the plaintiff in the 2007 action (see US Bank, N.A. v. Zwisler, 147 AD3d 804, 806).The plaintiff’s contention concerning General Obligations Law §17-101 is not properly before this Court, as the argument and the documents in support of it were provided for the first time in the plaintiff’s surreply papers submitted to the Supreme Court (see Williams v. City of New York, 114 AD3d 852, 854; Sahni v. Kitridge Realty Co., Inc., 114 AD3d 837, 838).Accordingly, I would affirm the order appealed from.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Sharon Marie Spencer, res, v. Dwayne Spencer, ap — (Index No. 50663/12)APPEAL by the defendant, in an action for divorce and ancillary relief, as limited by his brief, from so much of an order of the Supreme Court (Catherine M. DiDomenico, J.), dated November 18, 2016, and entered in Richmond County, as, after a hearing, granted that branch of the plaintiff’s motion which was to hold him in civil contempt for his violation of certain orders that had been issued during the pendency of the action and directed his incarceration unless he paid a purge amount of $150,000 by December 16, 2016. By decision and order on motion dated February 2, 2017, this Court stayed enforcement of so much of the order as directed the defendant’s incarceration unless he paid the purge amount by December 16, 2016, pending hearing and determination of the appeal.Jay S. Baum, Staten Island, NY, for appellant.Agulnick & Gogel, LLC, Great Neck, NY (William A. Gogel of counsel), for respondent.DUFFY, J.This case presents two issues of first impression in the area of matrimonial law not previously addressed by an appellate court in New York. The first issue is whether the provisions of Domestic Relations Law §236(B)(2)(b) and Uniform Rules for Trial Courts (22 NYCRR) §202.16-a, in tandem (hereinafter together the automatic orders), constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law §753. If so, then the next issue is whether such civil contempt is an available remedy for a violation of the automatic orders when that civil contempt is sought after entry of a judgment of divorce. For the reasons set forth below, we answer the first issue in the affirmative and the second in the negative. Specifically, we find that the automatic orders constitute unequivocal mandates of the court, but civil contempt is not an available remedy for violation of the automatic orders when civil contempt is sought after entry of a judgment of divorce.Sharon Marie Spencer (hereinafter the plaintiff) commenced this matrimonial action in the Supreme Court, Richmond County, against her husband, Dwayne Spencer (hereinafter the defendant), on July 18, 2012. An 18-day trial was held, and thereafter, on November 30, 2015, a judgment of divorce was entered.After the judgment of divorce had been entered, the plaintiff learned that, while the trial was pending, unbeknownst to her, the defendant sold a warehouse in Brooklyn, which was a marital asset (hereinafter the Property), without her consent and without the consent of the Supreme Court during the pendency of the action.At the time the defendant sold the Property, both Domestic Relations Law §236(B)(2)(b) and 22 NYCRR 202.16-a were in full force and effect. As is relevant to this appeal, each provision, with language that virtually mirrors the other, precludes either of the parties in a matrimonial action from transferring or in any way disposing of marital assets such as the Property without the written consent of the other party or order of the court, except under certain circumstances not applicable to this case (see Domestic Relations Law §236[B][2][b]; 22 NYCRR 202.16-a). The automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law §236[B][2][b]).Although the judgment of divorce had already been entered, as a result of the plaintiff’s discovery of the defendant’s earlier sale of the Property, on July 29, 2016, the plaintiff filed an order to show cause seeking, inter alia, pursuant to Judiciary Law §753, a finding of civil contempt against the defendant. The Supreme Court then held a hearing on the plaintiff’s order to show cause, during which the defendant admitted that he sold the Property for $1.6 million during the pendency of the divorce trial. The defendant asserted that, after paying the mortgage and other encumbrances on the Property, he received proceeds from the sale in the amount of $300,000, which he spent paying debts that he owed.In an order dated November 18, 2016, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was to hold the defendant in civil contempt, finding the defendant’s sale of the Property in violation of the automatic orders and his expenditure of the proceeds for his own benefit defeated, impaired, impeded, or prejudiced the rights of the plaintiff. The court directed that, unless the defendant purged the contempt by paying $150,000 to the plaintiff on or before December 16, 2016, the defendant would be incarcerated every weekend for a period of six months. The defendant appeals from so much of the order as held him in civil contempt and directed him to be incarcerated if the purge amount was not timely paid. In a decision and order on motion dated February 2, 2017, this Court stayed enforcement of so much of the order as directed his incarceration if the purge amount was not timely paid.I._The Law_of Civil_ContemptThe goal of civil contempt is to vindicate a party’s right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor (see Matter of McCormick v. Axelrod, 59 NY2d 574, 582-583). In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct (see id. at 583; El-Dehdan v. El-Dehdan, 26 NY3d 19, 29; Bernard-Cadet v. Gobin, 94 AD3d 1030, 1031; see also Judiciary Law §753[A][1]). The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence (see El-Dehdan v. El-Dehdan, 26 NY3d at 29). Upon a determination that a party has committed civil contempt, the court may impose as a punishment a fine in an amount sufficient to indemnify the aggrieved party for an actual loss, including counsel fees, and/or imprisonment for up to six months or until the fine is paid (see Judiciary Law §§773, 774).As noted above, the language of Domestic Relations Law §236(B)(2)(b) and 22 NYCRR 202.16-a is virtually identical. Domestic Relations Law §236(B)(2)(b) provides, in pertinent part, as follows:“The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court… . The automatic orders are as follows:“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate,…) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.”22 NYCRR 202.16-a provides, in pertinent part:“(c) Automatic Orders. Upon service of the summons in every matrimonial action, it is hereby ordered that:“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate,…) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.”Domestic Relations Law §236(B)(2)(b) was enacted by the New York State Legislature in 2009, and 22 NYCRR 202.16-a is a court rule adopted in 2009 by the Chief Administrative Judge that governs the conduct of parties in a matrimonial litigation. Neither provision constitutes a specific pronouncement by an individual court or judge. And, as an initial matter, we note that, although there may be a case in which, perhaps due to a deficiency in the pleadings, a court would need to delineate between the two provisions, despite their virtually identical language, no such issue exists here. In her order to show cause, the plaintiff alleged that the defendant violated both Domestic Relations Law §236(B)(2)(b) and 22 NYCRR 202.16-a. Accordingly, we treat the two provisions, together, as the automatic orders.II._Unequivocal Mandates_of the_CourtTurning to the issue of whether these automatic orders constitute unequivocal mandates of the court during the pendency of a matrimonial action, although neither the Court of Appeals nor any appellate court has yet addressed this issue, the legislative history of Domestic Relations Law §236(B)(2)(b) supports the conclusion that the automatic orders constitute unequivocal mandates of the court (see Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72; Sponsor’s Mem in Support, 2009 NY Senate Bill S2970). There can be no real dispute that the Legislature intended that a violation of the automatic orders “would be redressed by the same remedies available for violations of any order signed by a judge” (P.S. v. R.O., 31 Misc 3d 373, 376 [Sup Ct, NY County]). Indeed, the introductory language of 22 NYCRR 202.16-a expressly provides that a charge of contempt is available as a remedy for a party’s violation of the automatic orders during the pendency of a matrimonial action:“The notice shall state legibly on its face that automatic orders have been entered against the parties named in the summons or in the summons and complaint pursuant to this rule, and that failure to comply with these orders may be deemed a contempt of court. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons. These orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b] [emphasis added]).As noted in the Assembly’s Memorandum in Support of Legislation, the automatic orders are needed at the very commencement of and during the pendency of a matrimonial action “to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies” (Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72 at 6; see Sponsor’s Mem in Support, 2009 NY Senate Bill S2970). Public policy concerns compel our conclusion that the automatic orders are unequivocal mandates that, upon proper proof, can be enforced through resort to the remedy of contempt of court. Such determination gives teeth to both Domestic Relations Law §236(B)(2)(b) and 22 NYCRR 202.16-a, as the spectre of being held in contempt can be a powerful deterrent to misconduct by the parties, as well as a valuable tool to induce compliance with and enforcement of the terms of the automatic orders during the pendency of the matrimonial action.Certain Supreme Court cases that have dealt with civil contempt motions that have been made during the pendency of a matrimonial action also have concluded that the automatic orders constitute unequivocal mandates of the court for the purposes of seeking a remedy of civil contempt (see Westreich v. Westreich, 44 Misc 3d 1217[A], 2014 NY Slip Op 51170[U], *16-17 [Sup Ct, Nassau County]; Sykes v. Sykes, 35 Misc 3d 591, 595 [Sup Ct, NY County]; P.S. v. R.O., 31 Misc 3d at 376). For example, in P.S. v. R.O. (31 Misc 3d at 376), the court reasoned that 22 NYCRR 202.16-a, which has language identical to that set forth in Domestic Relations Law §236(B)(2)(b), is a lawful mandate of the court. In concluding that the court rule constitutes an unequivocal mandate of the court, the court observed that“[t]he court rules are promulgated by the Chief Administrator of the Courts on behalf of the Chief Judge of the Court of Appeals under the authority vested in them by Judiciary Law §211(1)(b) and 212(2)(b), and by article VI, §30 of the New York State Constitution, to adopt rules to regulate practice and procedure in the courts. Thus, the court rules constitute lawful mandates of the court” (P.S. v. R.O., 31 Misc 3d at 376).The defendant’s contention that Domestic Relations Law §236(B)(2)(b) constitutes a legislative, not a court, mandate (see e.g. Buoniello v. Buoniello, 2010 NY Misc. LEXIS 6641 [Fam Ct, Suffolk County]), precluding civil contempt as a remedy for a violation of that section, ignores the existence of 22 NYCRR 202.16-a. A party cannot violate Domestic Relations Law §236(B)(2)(b) without also violating 22 NYCRR 202.16-a; the two provisions essentially mirror each other. Indeed, we note that, as a matter of course, that section of the Domestic Relations Law and 22 NYCRR 202.16-a each are referred to as “the automatic orders” and are treated in tandem with each other. And, as noted herein, the defendant’s contention that the automatic orders are not unequivocal mandates subjecting him to civil contempt, but rather constitute administrative rules, is contrary to the express language of 22 NYCRR 202.16-a, against public policy, and without merit.III._The Unavailability_of Civil_Contempt as_a Postjudgment_RemedyNotwithstanding the foregoing, we find that, in a case such as this one where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders after the judgment of divorce has been entered. ”[I]n the context of a matrimonial action, the Court of Appeals has ‘recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated’” (Nicodemus v. Nicodemus, 124 AD3d 849, 851, quoting Xiao Yang Chen v. Fischer, 6 NY3d 94, 100). ”The primary purposes of res judicata are grounded in public policy concerns and are intended to ensure finality, prevent vexatious litigation and promote judicial economy” (Xiao Yang Chen v. Fischer, 6 NY3d at 100). In contrast, the automatic orders are temporary and exist only “in full force and effect” during the pendency of the action until “terminated, modified or amended by further order of the court or upon written agreement between the parties” (22 NYCRR 202.16-a[b]).The express purpose of the automatic orders is to preserve the status quo of property individually or jointly held by the parties, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies during the pendency of the action (see Domestic Relations Law §236[B][2][b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time (see Mittman v. Mittman, 263 App Div 384, 385). Here, after the judgment of divorce was entered, the automatic orders ceased to exist for the purposes of enforcement (see 22 NYCRRR 202.16-a) given that the judgment of divorce was the final determination of the action and, along with legally ending the marriage of the parties, disposed of all outstanding issues relating to the division of the parties’ property, the award of maintenance, child custody, and other marital issues (see Nicodemus v. Nicodemus, 124 AD3d at 851).Public policy concerns recognizing the finality of judgments are additional reasons to find that, after a judgment of divorce is entered, a party is not entitled to pursue a motion for contempt of court for a late-discovered violation of the automatic orders even though such violation occurred during the pendency of the divorce action. Preventing vexatious litigation and promoting judicial economy, as well as the goal of avoiding inconsistent rulings where a judgment of divorce might actually conflict with the finding in a hearing on a violation of the automatic orders, also dictate the conclusion that a remedy of civil contempt is not available for a violation of the automatic orders once a judgment of divorce is entered (see Xiao Yang Chen v. Fischer, 6 NY3d at 100; Nicodemus v. Nicodemus, 124 AD3d at 851). Indeed, the public policy concerns that favor allowing a motion for contempt of court as a remedy for violating the automatic orders during the pendency of a matrimonial action, to wit, “to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies” (Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72; see Sponsor’s Mem in Support, 2009 NY Senate Bill S2970), no longer exist after the judgment of divorce ends the marriage and itself becomes the mechanism to enforce.We note that, in a comparable context, even though the Legislature has enacted and revised matrimonial statutes with the express purpose of enabling easier enforcement of support orders such as pendente lite orders of maintenance and child support (see Domestic Relations Law §236[B]), this Court has held that, after entry of a judgment of divorce, the remedy of civil contempt to enforce an alleged violation of a pendente lite order of maintenance is not available, as there are other available remedies for enforcing such orders (see Pollack v. Pollack, 3 AD3d 482, 484). Specifically, in that context, relief is available through the application to the court for a money judgment pursuant to Domestic Relations Law §244, or for a violation of the judgment of divorce, if applicable (see Pollack v. Pollack, 3 AD3d at 484; Walis v. Walis, 192 AD2d 598, 600-601; Patricia Lynn N. v. Vincent Michael N., 152 AD2d 547, 548).Likewise, here, the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce does not render this plaintiff without available remedies. For example, vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50 percent of the value of the Property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the plaintiff could have sought (see Iacono v. Iacono, 145 AD3d 972, 974; Pantelidis v. Pantelidis, 297 AD2d 791, 792; see also Nicodemus v. Nicodemus, 124 AD3d at 851).IV._ConclusionAccordingly, although we find that the automatic orders constitute unequivocal mandates for the purposes of holding a party in civil contempt, under the circumstances of this case, the Supreme Court erred in granting that branch of the plaintiff’s motion which was to hold the defendant in civil contempt and directing his incarceration unless he paid a purge amount. Thus, the order is reversed insofar as appealed from, on the law, and that branch of the plaintiff’s motion which was to hold the defendant in civil contempt is denied.MASTRO, J.P., HALL and SGROI, JJ., concur.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was to hold the defendant in civil contempt is denied.By Mastro, J.P.; Leventhal, Maltese and Brathwaite Nelson, JJ.Tatyana Morchyk, ap, v. Acadia 3780-3858 Nostrand Avenue, LLC, res — (Index No. 504496/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Toussaint, J.), dated July 22, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On June 18, 2013, the plaintiff fell while descending an interior staircase in a building owned by the defendant. The plaintiff commenced this action to recover damages for her personal injuries based on the defendant’s alleged negligence. The defendant subsequently moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff was unable to identify the cause of her fall. The Supreme Court granted the motion. The plaintiff appeals, and we affirm.Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion for summary judgment. In support of its motion, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her fall (see Priola v. Herrill Bowling Corp., 150 AD3d 1163; McFadden v. 726 Liberty Corp., 89 AD3d 1067, 1068; Capasso v. Capasso, 84 AD3d 997, 998; Patrick v. Costco Wholesale Corp., 77 AD3d 810, 811). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). The plaintiff’s conclusory assertion that the absence of a handrail on the side of the stairs where she fell constituted a building code violation was insufficient to defeat the defendant’s motion.The plaintiff’s remaining contentions either are without merit or need not be reached in light of our determination.MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of Fannie Aleman, res, v. James A. Lansch, ap — (Docket Nos. V-3081-16, V-3082-16)Appeal from an order of the Family Court, Westchester County (Nilda Morales-Horowitz, J.), entered October 21, 2016. The order, in effect, dismissed the father’s petition for custody of the parties’ children and his petition alleging violation of the parties’ custody agreement that was incorporated into their judgment of divorce dated July 8, 2014, and granted the mother’s family offense petition to the extent of limiting the father to supervised visitation with the parties’ children.ORDERED that the order is reversed, on the law, without costs or disbursements, the father’s petitions are reinstated, and the matters are remitted to the Family Court, Westchester County, for a hearing, with all convenient speed, on the father’s petitions and the mother’s family offense petition before a different judge, at which hearing the father shall be permitted to proceed pro se, if he so chooses, and for a new determination thereafter on the merits of the petitions; and it is further,ORDERED that pending the hearing and determination of the petitions, or further order of the Family Court, Westchester County, the father shall have unsupervised visitation with the children pursuant to the parenting agreement, but shall have no overnight visitation with the children.The parties were divorced by judgment dated July 8, 2014. The judgment of divorce incorporated the parties’ custody agreement providing for joint legal custody of the parties’ children, with the mother to have primary physical custody and the father to have certain liberal parenting time. In January 2016, the mother filed a family offense petition against the father, alleging that he sexually abused the children. The Family Court issued a full stay-away temporary order of protection in favor of the mother and children, which was eventually replaced by a temporary order limiting the father to supervised visitation with the children. Thereafter, the father filed petitions seeking custody of the children and alleging that the mother violated the parties’ custody agreement that was incorporated into the judgment of divorce by filing numerous false claims of sexual abuse against him.The father, who is a tax attorney, appeared pro se. In several court appearances, the Family Court repeatedly conducted an inquiry into the father’s request to proceed pro se, advising him that he should retain counsel and noting the perils of proceeding without counsel. The father acknowledged his understanding of those perils and repeated his desire to proceed pro se. The court ultimately decided that he could not represent himself, and it would continue supervised visitation indefinitely until he retained counsel to file for modification of the temporary order. In the order appealed from, the court, in effect, dismissed the father’s petition for custody and his petition alleging violation of the parties’ custody agreement, and granted the mother’s family offense petition to the extent of limiting the father to supervised visitation with the parties’ children.The father had a statutory right to counsel in these Family Court proceedings (see Family Ct Act §262[a][ii], [v]; Matter of Dixon v. Marshall, 151 AD3d 965, 966; Matter of Graham v. Rawley, 140 AD3d 765, 767). However, he also had the right to waive counsel and proceed pro se, provided he waived his right to counsel knowingly, intelligently, and voluntarily (see Faretta v. California, 422 US 806, 835; Matter of Kathleen K. [Steven K.], 17 NY3d 380, 384-385; Matter of Massey v. Van Wyen, 108 AD3d 549, 550). ”Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, ‘forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]‘” (Matter of Massey v. Van Wyen, 108 AD3d at 550, quoting Faretta v. California, 422 US at 817).Where a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary (see Matter of Kathleen K. [Steven K.], 17 NY3d at 385; Matter of State of New York v. Raul L., 120 AD3d 52, 63). ”While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel” (Matter of Graham v. Rawley, 140 AD3d at 767 [internal quotation marks omitted]; see People v. Providence, 2 NY3d 579, 582; Matter of Dixon v. Marshall, 151 AD3d at 966). The Court of Appeals has stated that the better practice is to ask the party about his or her age, education, occupation, previous exposure to legal procedures, and other relevant factors bearing on a competent, intelligent, and voluntary waiver (see People v. Arroyo, 98 NY2d 101, 104; Matter of State of New York v. Raul L., 120 AD3d at 62).Here, the father unequivocally and timely asserted his right to represent himself in the Family Court proceedings. The Family Court engaged in a searching inquiry of the father, which revealed that he knowingly, intelligently, and voluntarily waived his right to counsel, and that it was his desire and personal choice to proceed pro se. The court properly warned him of the perils of self-representation, which he acknowledged. The father is a tax attorney, and his relative ignorance of family law did not justify the court’s denial of his request, as mere ignorance of the law is insufficient to deprive one of the right to self-representation (see Matter of Massey v. Van Wyen, 108 AD3d at 551). Further, the court’s belief that counsel for the father would be helpful in these matters was an insufficient reason to deprive the father of his right of self-representation (see Matter of Kent v. Kent, 29 AD3d 123, 129-130; Nimkoff v. Nimkoff, 18 AD3d 344, 346). The father did not engage in any disruptive conduct that would prevent the fair and orderly exposition of the issues (see Matter of Kathleen K. [Steven K.], 17 NY3d at 385; People v. McIntyre, 36 NY2d 10, 18; cf. Matter of Aiden XX. [Jesse XX.], 104 AD3d 1094, 1097). Accordingly, the Family Court should not have deprived the father of his right to self-representation (see Matter of Massey v. Van Wyen, 108 AD3d at 551; cf. Faretta v. California, 422 US 806; People v. McIntyre, 36 NY2d 10).Moreover, the Family Court should not have entered a permanent order of supervised visitation without conducting a hearing (see S.L. v. J.R., 27 NY3d 558, 564). Where, as here, facts material to a best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required (see id. at 564; Obey v. Degling, 37 NY2d 768, 770; Matter of Izquierdo v. Santiago, 151 AD3d 967, 968).Accordingly, the order appealed from must be reversed, the father’s petitions reinstated, and the matters remitted to the Family Court, Westchester County, for a hearing on the father’s petition for custody and his petition alleging violation of the parties’ custody agreement incorporated in the judgment of divorce, and the mother’s family offense petition, at which the father shall be permitted to proceed pro se, and, thereafter, determinations of the petitions on the merits. Further, in light of the court’s unreasonable refusal to honor the father’s right to self-representation, which was accompanied by increasing intolerance towards the father, we remit the matters to a different judge (see Matter of Massey v. Van Wyen, 108 AD3d at 551).Given the nature of the allegations of inappropriate conduct involving, inter alia, bathing and sleeping arrangements with the children, it would be in the best interests of the children to suspend overnight visitation pending a full fact-finding hearing on those allegations (see Matter of Chavah T., 99 AD3d 915, 917; Matter of Bree W. [Jennifer F.], 98 AD3d 522, 523; Matter of Nyasia J., 41 AD3d 478, 479). Accordingly, pending the hearing and determinations on the petitions, or further order of the Family Court, Westchester County, overnight visitation pursuant to the parties’ original agreement shall be suspended. However, daytime visitation need not be supervised.DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of Jorge A. Alvarado, ap, v. Vanessa S. Cordova, res — (Proceeding No. 1)MATTER of Vanessa S. Cordova, res, v. Jorge A. Alvarado, ap — (Proceeding No. 2) (Docket Nos. V-4489-14, V-4490-14, V-4792-14, V-4793-14)Appeal from an order of the Family Court, Nassau County (Anna R. Anzalone, J.), dated March 30, 2016. The order, after a hearing, denied the father’s petition for sole custody of the parties’ children and granted the mother’s cross petition for sole custody of the parties’ children and for permission to relocate the children to Florida, where she now resides.ORDERED that the order is modified, on the law and the facts, (1) by adding to the first decretal paragraph thereof, after the words “in its entirety,” the words “and the mother shall have sole residential custody of the children in Florida,” (2) by deleting the fifth decretal paragraph thereof, and (3) by adding thereto a decretal paragraph ordering the mother to inform the father of the children’s residential address, including any change in address; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a reopened hearing and, thereafter, the determination of a new holiday and vacation visitation schedule for the children in accordance herewith; and it is further,ORDERED that pending the new determination by the Family Court, Nassau County, the provisions of the fifth decretal paragraph of the order shall remain in effect.“A court deciding an initial petition for child custody must determine what is in the child’s best interests” (Matter of Supangkat v. Torres, 101 AD3d 889, 889-890; see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of McDonald v. Thomas, 154 AD3d 763, 764).Here, although the mother’s relocation to Florida precipitated the commencement of these proceedings, the matter concerns an initial custody determination, and, therefore, the strict application of the factors relevant to relocation petitions (see Matter of Tropea v. Tropea, 87 NY2d 727) is not required (see Matter of McDonald v. Thomas, 154 AD3d at 764; Matter of Wood v. Rago, 135 AD3d 949, 950; Matter of Wright v. Stewart, 131 AD3d 1256, 1257; Matter of Sims v. Boykin, 130 AD3d 835, 836). The mother’s relocation was one factor for the hearing court to consider in determining what was in the children’s best interests (see Matter of Wood v. Rago, 135 AD3d at 950; Matter of Santano v. Cezair, 106 AD3d 1097, 1098).Contrary to the father’s contentions, the Family Court’s determination to award the mother residential custody of the children in Florida has a sound and substantial basis in the record, based upon the totality of the evidence.However, we agree with the father and the attorney for the children that the Family Court erred in failing to set forth a more precise holiday and vacation visitation schedule. Instead, the court, in the fifth decretal paragraph of its order, granted the father “six weeks vacation in the [s]ummer, excluding the two weeks immediately prior to the start of the school year and any other visitation as agreed between the parties.” Given the history of the parties’ relationship, the order is unrealistic to the extent that it requires the parties to cooperate in reaching an agreement (see Matter of Shonyo v. Shonyo, 151 AD3d 1595, 1597; Gillis v. Gillis, 113 AD3d 816, 817).Accordingly, we must remit the matter to the Family Court, Nassau County, for a reopened hearing and, thereafter, a new determination setting forth a more detailed schedule of holiday and vacation visitation that is in the best interests of the children (see Gillis v. Gillis, 113 AD3d at 817; Matter of Felty v. Felty, 108 AD3d 705, 708-709; Matter of Grunwald v. Grunwald, 108 AD3d 537, 540; Matter of Ross v. Morrison, 98 AD3d 515, 517; Matter of Aguirre v. Romano, 73 AD3d 912, 914). The new schedule shall grant the father six weeks of visitation with the children, in New York, during the summer, excluding the two weeks immediately prior to the start of the school year, and shall set forth clear rules for establishing and implementing a summer vacation schedule, including reasonable prior notice to the mother and responsibility for ensuring the children’s travel to and from Florida. The new schedule shall also address the issue of visitation during major holidays and other school recess periods, and shall consider the possibility of visitation by the father in Florida, as well as in New York.We also agree with the father and the attorney for the children that the order appealed from requires further modification to the extent indicated herein.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Esscence R. (Anonymous). Administration for Childrens Services, ap; Ebony B. R. (Anonymous), res — (Docket No. N-12550-17)Appeal from an order of the Family Court, Kings County (Elizabeth Barnett, J.), dated June 15, 2017. The order, after a hearing, granted the mother’s application pursuant to Family Court Act §1028 for the return of the subject child to her custody.ORDERED that the order is affirmed, without costs or disbursements.An application pursuant to Family Court Act §1028 for the return of a child who has been temporarily removed “shall” be granted unless the Family Court finds that “the return presents an imminent risk to the child’s life or health” (Family Ct Act §1028[a]). In making its determination, the court “must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” (Nicholson v. Scoppetta, 3 NY3d 357, 378). The court “must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests” (id.). ”In reviewing a Family Court’s determination of an application pursuant to Family Court Act §1028 (a) for the return of a child who has been temporarily removed, this Court must determine whether a sound and substantial basis in the record supports the Family Court’s determination” (Matter of Julissia B. [Navasia J.], 128 AD3d 690, 691; see Matter of Alex A.E. [Adel E.], 103 AD3d 721, 722; Matter of Alan C. [Thomas C.], 85 AD3d 912, 914).Here, there is a sound and substantial basis in the record for the Family Court’s determination granting the mother’s application pursuant to Family Court Act §1028, since the risks to the child were mitigated by the conditions imposed by the court on the granting of the mother’s application. The court required the mother, among other things, to participate in therapy, to continue to bring the child to visit her siblings at the home of the foster mother, and to continue to take the child to her medical appointments. With these conditions, and taking into account all of the relevant circumstances, the court’s determination to return the child to the mother should not be disturbed.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of J. F. (Anonymous). Rockland County Department of Social Services, petitioner-res; Yves A. (Anonymous), respondent-appellant res — (Proceeding No. 1)MATTER of T. F. (Anonymous). Rockland County Department of Social Services, petitioner-res; Yves A. (Anonymous), respondent-appellant res — (Proceeding No. 2) (Docket Nos. B-1259-16, B-1260-16, B-1261-16, B-1262-16)Appeal from an order of fact-finding and disposition of the Family Court, Rockland County (Sherri L. Eisenpress, J.), dated December 14, 2016. The order, insofar as appealed from, after a hearing, found that the mother abandoned the subject children, terminated her parental rights, and transferred custody and guardianship of the children to the Rockland County Department of Social Services for the purpose of adoption.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.These proceedings were commenced to, inter alia, terminate the mother’s parental rights. After a hearing, the Family Court issued an order of fact-finding and disposition, finding that the mother abandoned the subject children, terminating her parental rights, and transferring custody and guardianship of the children to the Rockland County Department of Social Services for the purpose of adoption. The mother appeals.The evidence adduced at the hearing established, by clear and convincing evidence, that the mother abandoned the subject children because she did not have contact with the children or the petitioner agency during the six-month period immediately prior to the filing of the petitions (see Social Services Law §384-b[4][b]; Matter of Victoria S.N. [Porsha N.], 135 AD3d 765, 766; Matter of Keymani R.J. [Shakima J.], 95 AD3d 1213, 1213; Matter of Amaru M. [Kizwana M.], 87 AD3d 1069, 1069; Matter of Robert A.G., 62 AD3d 701; Matter of Dallas Keith M., 55 AD3d 612; Matter of Jamar Terry N., 46 AD3d 563). Moreover, the mother failed to satisfy her burden of proving that the petitioner agency prevented or discouraged her from communicating with the children or the agency, or that a severe hardship prevented her from communicating with the children (see Matter of Keymani R.J. [Shakima J.], 95 AD3d at 1213; Matter of Robert A.G., 62 AD3d at 701; Matter of Jamar Terry N., 46 AD3d at 563; Matter of Elizabeth Susanna R., 11 AD3d 619, 620-621).The mother’s remaining contention is without merit.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.William Shashaty, ap, v. Arthur H. Gavitt, et al., res — (Index No. 20957/13)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, Kings County (Velasquez, J.), dated October 6, 2016, as denied that branch of his motion which was for summary judgment on the issue of liability.ORDERED that the order is affirmed insofar as appealed from, with costs.On June 18, 2012, at approximately 11:30 a.m., the plaintiff, who was riding a motorcycle, collided with a vehicle owned by the defendant Foodliner, Inc., and operated by the defendant Arthur H. Gavitt. The collision took place at the intersection of 86th Street and Gatling Place in Brooklyn. At the time of the accident, the plaintiff was traveling east on 86th Street, and Gavitt was turning left from westbound 86th Street onto Gatling Place.The plaintiff subsequently commenced this action against the defendants to recover damages for personal injuries. The plaintiff moved, inter alia, for summary judgment on the issue of liability. The Supreme Court denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability.“The driver of a vehicle intending to turn to the left within an intersection… shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” (Vehicle and Traffic Law §1141). “The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield” (Gause v. Martinez, 91 AD3d 595, 596; see Yelder v. Walters, 64 AD3d 762, 764). ”Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision,… a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v. Walters, 64 AD3d at 764 [citations omitted]; see Fuertes v. City of New York, 146 AD3d 936, 937; Bennett v. Granata, 118 AD3d 652, 653).Here, the plaintiff demonstrated, prima facie, that Gavitt was negligent in violating Vehicle and Traffic Law §1141 “by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety” (Sirlin v. Schreib, 117 AD3d 819, 819; see Hyo Jin Yoon v. Guang Chen, 127 AD3d 1023, 1024; Ismail v. Burnbury, 118 AD3d 756, 757). The undisputed fact that Gavitt was, in fact, unable to complete his left turn “‘without being struck by [the plaintiff's] vehicle’” (Yelder v. Walters, 64 AD3d at 764, quoting Le Claire v. Pratt, 270 AD2d 612, 613) demonstrates that he violated Vehicle and Traffic Law §1141 by failing to “yield the right of way to any vehicle approaching from the opposite direction which [was]… so close as to constitute an immediate hazard” (Vehicle and Traffic Law §1141; see Hyo Jin Yoon v. Guang Chen, 127 AD3d at 1024; Ismail v. Burnbury, 118 AD3d at 757; Sirlin v. Schreib, 117 AD3d at 819; cf. Gause v. Martinez, 91 AD3d at 597). “Regardless of which vehicle entered the intersection first, [the plaintiff], as the driver with the right-of-way, was entitled to anticipate that [Gavitt] would obey traffic laws which required [him] to yield” (Yelder v. Walters, 64 AD3d at 764).The plaintiff also demonstrated, prima facie, that Gavitt’s negligence was the sole proximate cause of the accident, and that the plaintiff was not comparatively at fault in the happening of the accident. In this regard, the plaintiff testified at his deposition that he was traveling at 25 miles per hour immediately prior to the accident and, upon seeing Gavitt commence making the left turn in front of him, he immediately applied his brakes in an attempt to avoid colliding with Gavitt’s vehicle, but he was unable to avoid the collision (see Sirlin v. Schreib, 117 AD3d at 819-820; Ducie v. Ippolito, 95 AD3d 1067, 1068; Yelder v. Walters, 64 AD3d at 764).In opposition to the plaintiff’s prima facie showing, however, the defendants raised a triable issue of fact as to whether the plaintiff was traveling at an excessive rate of speed immediately prior to the accident and whether he could have avoided the accident through the exercise of reasonable care (see Rodriguez v. Klein, 116 AD3d 939, 940; see also Steiner v. Dincesen, 95 AD3d 877; Casaregola v. Farkouh, 1 AD3d 306, 307). Since issues of fact exist as to whether the plaintiff was comparatively at fault in the happening of the accident, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.MATTER of Maureen Kuechenmeister, res, v. Scott Kuechenmeister, ap — (Docket No. F-5836-11)Rhea G. Friedman, New York, NY, for appellant.Appeal from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated January 13, 2017. The order denied the father’s objections to (1) an order of disposition of that court (Gregory Gliedman, S.M.), dated September 20, 2016, made after a hearing, finding that the father had willfully violated a prior order of child support, and (2) an order of that court (Gregory Gliedman, S.M.), also dated September 20, 2016, which directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $159,695.76 for child support arrears.ORDERED that the order dated January 13, 2017, is affirmed, without costs or disbursements.The mother commenced this proceeding seeking a determination that the father willfully violated a child support order. After a hearing, a Support Magistrate found that the father had willfully violated the support order and directed the entry of a money judgment for arrears in the principal sum of $159,695.76. An order of the Family Court dated January 13, 2017, denied the father’s objections to the Support Magistrate’s orders. The father appeals.Resolution of issues of credibility, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the factfinder, which saw and heard the witnesses. The factfinder’s credibility determinations are entitled to great deference, and its factual findings should not be disturbed on appeal unless clearly unsupported by the record (see Matter of Binns v. Boyd, 63 AD3d 1058, 1059; Matter of McCarthy v. Braiman, 125 AD2d 572).Here, in support of her petition, the mother presented prima facie evidence that the father willfully violated the support order (see Family Ct Act §454[3][a]; Matter of Powers v. Powers, 86 NY2d 63, 69; Matter of Kimbrough v. Murphy, 156 AD3d 640; Matter of Rafferty v. Ettinger, 150 AD3d 1016; Matter of Tolkinen v. Siewert, 130 AD3d 837). The burden of going forward then shifted to the father to rebut the prima facie showing of a willful violation by offering competent, credible evidence of his inability to pay (see Matter of Powers v. Powers, 86 NY2d at 69-70; Matter of Kimbrough v. Murphy, 156 AD3d 640; Matter of Rafferty v. Ettinger, 150 AD3d 1016). The father failed to sustain his burden of going forward by offering competent, credible evidence of his inability to pay support as ordered (see Matter of Powers v. Powers, 86 NY2d at 69; Matter of Rafferty v. Ettinger, 150 AD3d 1016; Matter of Dezil v. Garlick, 136 AD3d 904, 905; Matter of Tolkinen v. Siewert, 130 AD3d at 838). Further, the Support Magistrate’s determination of the amount of arrears owed by the father was supported by the record. Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s orders (see Matter of Tolkinen v. Siewert, 130 AD3d at 838).ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Theresa Valenti, res, v. Michael Valenti, ap — (Docket No. O-5766-16)Michael Valenti, Laurel, Maryland, appellant pro se.Laura Daniels, Scarsdale, NY, for respondent.Darren DeUrso, White Plains, NY, attorney for the children.Appeal from an order of the Family Court, Westchester County (Rachel Hahn, J.), dated April 27, 2017. The order, after a hearing, granted the motion of Theresa Valenti for an extension of an order of protection issued against Michael Valenti until April 27, 2018.ORDERED that the order is affirmed, without costs or disbursements.In this family offense proceeding, the petitioner moved for a two-year extension of an order of protection, originally entered on consent, which was against the appellant and in favor of the petitioner and the parties’ children. After a hearing, the Family Court granted the petitioner’s motion and extended the order of protection, which was due to expire on April 24, 2016, until April 27, 2018.Contrary to the appellant’s contention, the Family Court, which had the benefit of seeing and hearing the witnesses at the hearing, properly found that, under the circumstances of this case, including the fact that the petitioner’s fears of harassment by the appellant were reasonable, there was “good cause” to extend the order of protection (Family Ct Act §842; see Matter of Molloy v. Molloy, 137 AD3d 47).SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of Isabella (Anonymous). Charles O. (Anonymous), ap — (Docket No. A-4243-15)Kevin Gomez, Middletown, NY, for appellant.Appeal from an order of the Family Court, Orange County (Carol S. Klein, J.), dated September 27, 2016. The order, after a fact-finding hearing, dismissed the petition to adopt the subject child.ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Orange County, for further proceedings on the petition before a different judge.The petitioner, who has been the legal guardian of the subject child, Isabella, since 2011, filed a petition to adopt her in 2015. Isabella’s father consented to the adoption. Following a hearing, the Family Court found that the consent of Isabella’s mother was not required because she had abandoned the child. Nevertheless, the court dismissed the petition on the ground that the petitioner has a lengthy criminal record, refusing to make any further inquiry into any other factor bearing on whether the adoption would be in the child’s best interests.A court must determine whether a proposed adoption is in the best interests of the child (see Domestic Relations Law §§114[1]; 116[4]; Matter of Anya W. [Darryl W.---Chalika W.-R.], 156 AD3d 709, 710-711; Matter of Baby Boy M., 269 AD2d 450, 450-451; Matter of George L. v. Commissioner of Fulton County Dept. of Social Servs., 194 AD2d 955, 956). The court should consider all the relevant factors (see Matter of Maxine N., 46 AD3d 829, 829-830; Matter of Baby Boy M., 269 AD2d at 450; Matter of Baby Boy P., 244 AD2d 491, 491). ”[P]erfection is not demanded of adoptive parents” (Matter of Jaclyn L.F., 265 AD2d 553, 553), and “even an unacceptable record of misconduct by adoptive parents may be mitigated by evidence that the proposed adoptive child is healthy and happy and considers petitioners to be his [or her] parents” (Matter of George L. v. Commissioner of Fulton County Dept. of Social Servs., 194 AD2d at 956 [internal quotation marks omitted]; see Matter of Alicia TT., 294 AD2d 642, 643; Matter of T., 291 AD2d 565, 566).Here, the Family Court erred in determining that the adoption was not in the child’s best interests based solely on the petitioner’s criminal history. The court should have received evidence and considered other factors relevant to the issue. This is particularly true since the petitioner had been appointed the child’s permanent guardian and had served in that role for over five years, which was most of the child’s life, and all of the petitioner’s convictions occurred more than 20 years before he commenced this proceeding (see Matter of T., 291 AD2d at 566; Matter of Jennifer A., 225 AD2d 204, 207; Matter of Donald U., 105 AD2d 875, 876).Accordingly, the matter must be remitted to the Family Court, Orange County, for further proceedings on the petition, before a different judge.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of Mazeltov B. (Anonymous), ap, v. Joseph M. (Anonymous) res — (Docket No. B-12554-09)Carol Kahn, New York, NY, for appellant, and appellant pro se.Terrence J. Worms, Flushing, NY, for respondent Joseph M.James M. Abramson, PLLC, New York, NY, for respondent OHEL Children’s Home and Family Services.Osato Eugene Uzamere, Jamaica, NY, attorney for the child.Appeal from an order of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated January 19, 2016. The order dismissed the mother’s petition, inter alia, to restore her parental rights. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.ORDERED that the order is affirmed, without costs or disbursements.We are satisfied with the sufficiency of the brief filed by assigned counsel pursuant to Anders v. California (386 US 738), and we have also reviewed the appellant’s pro se supplemental brief. Upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on the appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Matter of Hailey ZZ [Ricky ZZ.], 19 NY3d 422; Matter of Candelaria v. Nardil, 154 AD3d 748; Matter of Jade Yun Hon v. Tin Yat Chin, 148 AD3d 810; Matter of Kimberly J.G. [Chantel J.G.V.], 123 AD3d 928; Matter of Sheila CC. v. Commissioner of Social Servs. of Schenectady County, 98 AD3d 1200; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Billy Arias, ap — (S.C.I. No. 913/16)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered June 20, 2016, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Devon Powell, ap — (Ind. No. 8013/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (James P. Sullivan, J.), rendered July 15, 2016, convicting him of burglary 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. Bradshaw, 18 NY3d 257, 265; People v. Rennick, 123 AD3d 1146; People v. Reyes, 121 AD3d 820; People v. Coleman, 116 AD3d 708) 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). The defendant’s contention that certain orders of protection, which were issued upon his conviction, should be vacated, is unpreserved for appellate review (see CPL 470.05[2]; People v. Nieves, 2 NY3d 310, 316-318; People v. Mitchell, 142 AD3d 1185; People v. O’Connor, 136 AD3d 945), and we decline to reach the issue in the exercise of our interest of justice jurisdiction.SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of Istat B. (Anonymous), ap, v. Administration for Childrens Services res — (Appeal No. 1) (Docket No. V-8715-12)MATTER of Michelle (Anonymous). Sofya B. (Anonymous) ap; Joseph M. (Anonymous) res — (Proceeding No. 1)MATTER of Michelle (Anonymous). Joseph M. (Anonymous) respondents; Sofya N. B. (Anonymous) ap — (Proceeding No. 2) (Appeal No. 2) (Docket Nos. A-141-14, A-142-14)Appeals from (1) an order of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated September 28, 2015, and (2) an order of that court dated December 9, 2015. The order dated September 28, 2015, inter alia, after a hearing, granted the petition of Joseph M. and Natalie M. to adopt the subject child. The order dated December 9, 2015, dismissed the petition of Istat B. for visitation with the subject child.ORDERED that the orders are affirmed, without costs or disbursements.In 2009, the mother of the subject child was convicted of murder in the first degree and conspiracy in the second degree in connection with the death of the child’s father. She was sentenced to life imprisonment without parole. In October 2011, the mother’s parental rights were terminated (see Matter of Michelle M. [Mazoltuv B.], 100 AD3d 760). Thereafter, Joseph M. and Natalie M., the child’s paternal uncle and aunt, respectively, with whom the child had been placed, filed a petition seeking to adopt the child. The child’s maternal aunt and uncle, Sofya B. and Syleyman Y., also filed a petition seeking to adopt the child. In addition, the maternal grandmother, Istat B., filed a petition for visitation with the child. In an order dated September 28, 2015, the Family Court granted the petition of the paternal uncle and aunt to adopt the child, and in an order dated December 9, 2015, the court dismissed the maternal grandmother’s petition for visitation with the child. The maternal aunt and uncle appeal from the order dated September 28, 2015, and the maternal grandmother appeals from the order dated December 9, 2015.We agree with the Family Court’s determination that the evidence adduced at a best interests hearing conducted during the spring of 2015, relating to the adoption petition filed by the child’s paternal uncle and aunt, established that it was in the child’s best interests to be adopted by them (see Matter of Angela H.F., 155 AD3d 624).The Family Court erred, however, in dismissing the visitation petition of the maternal grandmother on the ground that she lacked standing due to the child’s adoption. ”A grandparent has standing to seek visitation when either parent is deceased, even after the child has been adopted” (Matter of Jordan, 60 AD3d 764, 764 [citations omitted]; see Domestic Relations Law §72[1]; People ex rel. Sibley v. Sheppard, 54 NY2d 320, 325-326). Nevertheless, the court properly determined, in the alternative, that on the merits the petition should be dismissed without a hearing, as the best interests hearing it had already conducted in the adoption proceeding provided it with sufficient information to determine that the petition should be dismissed. The best interests evidence adduced at the hearing in the adoption proceeding, including forensic evidence regarding the maternal grandmother, sufficiently supported the court’s determination and rendered a further hearing unnecessary (see Matter of Theresa B. v. Clarence D.P., 148 AD3d 1144; cf. S.L. v. J.R., 27 NY3d 558, 563).The appellants’ remaining contentions are without merit.DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.PEOPLE, etc., res, v. Paul Hisler, ap — (Ind. No. 3265/13)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, Jill A. Gross-Marks, and Deborah Wassel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B. Latella, J.), rendered April 20, 2015, convicting him of burglary in the second degree, assault in the second degree, criminal trespass in the second degree, and attempted escape in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s challenge to the legal sufficiency of the evidence supporting his conviction of assault in the second degree is unpreserved for appellate review        (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 260), we find that it was legally sufficient to establish the defendant’s guilt of assault in the second degree beyond a reasonable doubt. Additionally, 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), 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; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v. Romero, 7 NY3d 633, 643-644).The defendant’s argument that his waiver of the right to counsel was invalid because the Supreme Court failed to delve into the question of his competency and capacity to represent himself before permitting him to waive his right to counsel and proceed pro se is without merit. Under New York law, a defendant’s mental capacity may be taken into account in determining whether to permit the defendant to proceed pro se, “although the trial court need not conduct a formal ‘competency’ hearing prior to adjudicating a self-representation request” (People v. Stone, 22 NY3d 520, 527; see Faretta v. California, 422 US 806). Here, in view of the whole record (see People v. Providence, 2 NY3d 579, 583), the court had no reason to believe that the defendant suffered from a mental illness that affected his ability to waive counsel and proceed pro se. Consequently, the court providently exercised its discretion in not undertaking a particularized assessment of the defendant’s mental capacity in resolving the defendant’s request to proceed pro se (see People v. Stone, 22 NY3d at 528-529; People v. Paulin, 140 AD3d 985, 987; People v. Leitzsey, 121 AD3d 1020, 1020).The defendant’s challenge to the admission of certain DNA evidence is unpreserved for appellate review (see People v. Daly, 140 AD3d 593, 593-594; People v. Harris, 129 AD3d 990, 991). In any event, the defendant’s arguments are without merit (see People v. John, 27 NY3d 294, 315).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Dashawn Breland, ap — (Ind. No. 89/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya L. Simpson, J.), rendered December 18, 2015, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Douglas L. Ogden, ap — (Ind. No. 97/16)Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Dutchess County (Peter M. Forman, J.), imposed February 21, 2017, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., LEVENTHAL, BARROS, CONNOLLY and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Gwen Covert, ap — (Ind. No. 16-00639)Jason M. Bernheimer, Katonah, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco of counsel), for respondent (no brief filed).Appeal by the defendant from a judgment of the County Court, Westchester County (Barbara Zambelli, J.), rendered December 6, 2016, convicting her of driving while intoxicated as a felony in violation of Vehicle and Traffic Law §1192(3), upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Agustin Pena-Gonzalez, ap — (Ind. No. 16-00243)Philip H. Schnabel, Chester, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered October 7, 2016, convicting him of rape 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. Bradshaw, 18 NY3d 257, 267; People v. Johnson, 135 AD3d 960; People v. Guarchaj, 122 AD3d 878, 879; People v. Pelaez, 100 AD3d 803), 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).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Harold Bobbitt, ap — (Ind. No. 4811/16)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne Mondo, J.), rendered October 6, 2016, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Jamal Finney, ap — (Ind. No. 8847/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (William Miller, J.), rendered March 31, 2016, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Devonnee Wilkerson, ap — (Ind. No. 858/14)Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Richard Buchter, J.), imposed June 5, 2014, upon her plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s valid waiver of her right to appeal (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337, 341-342) precludes appellate review of her contention that the sentence imposed was excessive (see People v. Seaberg, 74 NY2d 1, 9).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Scheinkman, P.J.; Austin, Miller, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Lauriean Barrios, a/k/a Laurieann Barrios, ap — (Ind. No. 1933/13)Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Kings County (Matthew D’Emic, J.), imposed October 15, 2015, upon her plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s purported waiver of her right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 264; People v. Morales, 155 AD3d 974), and thus does not preclude review of her excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., AUSTIN, MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, res, v. Darrell McKinney, ap — Paul Skip Laisure, New York, NY (Tammy E. Linn of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Kenneth Blake of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Alan Marrus, J.), dated April 14, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.A defendant seeking a downward departure from his or her presumptive risk level must identify mitigating circumstances that are of a kind, or to a degree, not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter the SORA Guidelines) and must prove the existence of those circumstances by a preponderance of the evidence (see People v. Gillotti, 23 NY3d 841, 861, 864; People v. Wyatt, 89 AD3d 112, 128). If the defendant satisfies that burden, “the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (People v. Gillotti, 23 NY3d at 861).Here, the alleged 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. Nieves, 149 AD3d 881, 882; People v. Sanchez, 138 AD3d 946, 947). Accordingly, the Supreme Court properly denied his request for a downward departure from his presumptive designation as a level three sex offender.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Danny Hallums, ap — (Ind. No. 3470/15)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Elizabeth Foley, J.), imposed March 16, 2016, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Sanders, 25 NY3d 337, 341-342; People v. Dorsey, 155 AD3d 890).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.Wells Fargo Bank, National Association, etc., res, v. Pietro A. Cafasso, appellant def — (Index No. 678/11)Appeals from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both entered February 9, 2016. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Pietro A. Cafasso upon his failure to answer the complaint, and to appoint a referee to compute the amount due to the plaintiff. The second order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Pietro A. Cafasso upon his failure to answer the complaint, and to appoint a referee to compute the amount due to the plaintiff, and appointed a referee to compute the amount due to the plaintiff.ORDERED that the appeal from so much of the first order entered February 9, 2016, as granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Pietro A. Cafasso upon his failure to answer the complaint, and to appoint a referee to compute the amount due to the plaintiff is dismissed, as that portion of the order was superseded by the second order entered February 9, 2016; and it is further,ORDERED that the second order entered February 9, 2016, is reversed insofar as appealed from, on the law and in the exercise of discretion, those branches of the plaintiff’s motion which were for leave to enter a default judgment against the defendant Pietro A. Cafasso and to appoint a referee to compute the amount due to the plaintiff are denied, the first order entered February 9, 2016, is modified accordingly, and the complaint is dismissed; and it is further,ORDERED that one bill of costs is awarded to the defendant Pietro A. Cafasso.The plaintiff commenced this mortgage foreclosure action against the defendant Pietro A. Cafasso, among others, in January 2011. Cafasso defaulted in answering the complaint, and thereafter failed to appear at a settlement conference in August of 2011. On or about October 8, 2015, the plaintiff moved for leave to enter a default judgment against, among others, Cafasso, and to appoint a referee to compute the amount due to the plaintiff. Cafasso opposed the motion, arguing that inasmuch as more than four years had elapsed since his default in answering, the complaint should be dismissed pursuant to CPLR 3215(c). In two orders, both entered February 9, 2016, the Supreme Court, inter alia, granted the plaintiff’s motion and appointed a referee to compute the amount due under the mortgage. Cafasso appeals.Cafasso correctly contends that the Supreme Court improperly granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against him and to appoint a referee to compute the amount due to the plaintiff, and that the complaint should be dismissed. CPLR 3215(c) generally provides that where a plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court shall dismiss the complaint as abandoned. ”The one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if ‘sufficient cause is shown why the complaint should not be dismissed’” (Giglio v. NTIMP, Inc., 86 AD3d 301, 308, quoting CPLR 3215[c]). ”This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious” (Giglio v. NTIMP, Inc., 86 AD3d at 308; see Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 751-752). ”‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court’” (Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d at 752, quoting Giglio v. NTIMP, Inc., 86 AD3d at 308; see Park Lane North Owners, Inc. v. Gengo, 151 AD3d 874). Under the circumstances at bar, the Supreme Court improvidently exercised its discretion in finding that the plaintiff proffered a reasonable excuse for the delay, since the plaintiff’s conclusory and unsubstantiated assertions that unspecified periods of delay were attributable to the effects of Hurricane Sandy, compliance with a then newly enacted administrative order, and changes in loan servicers and counsel were insufficient for this purpose (see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 672; U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852).The parties’ remaining contentions either are without merit or need not be reached in view of the foregoing.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Balkin, Hall, Duffy and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Lance Lane, ap — (Ind. Nos. 2771/11, 4109/11)Appeal by the defendant, as limited by his motion, from two sentences of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), both imposed March 13, 2014, upon his pleas of guilty, on the ground that the sentences were excessive.ORDERED that the sentences are affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 264; People v. Little, 127 AD3d 1235, 1235-1236; People v. Brown, 122 AD3d 133) and, thus, does not preclude review of his excessive sentence claims. However, the sentences imposed were not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., BALKIN, HALL, DUFFY and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Robert Grof, ap — (S.C.I. No. 565/16)Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William Donnino, J.), rendered April 29, 2016, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Although a defendant’s challenge to the validity of a waiver of indictment is not forfeited by a plea of guilty and is not precluded by any valid waiver of the right to appeal (see People v. Yunga, 122 AD3d 951, 951), the defendant’s contention that his waiver of indictment was rendered invalid by the Supreme Court’s correction of the proposed superior court information is without merit. Contrary to the defendant’s contention, the provisions of CPL 200.70(1) do not govern the correction, since the correction, which was fully and accurately disclosed to the defendant and his attorney, was made prior to the execution of the defendant’s waiver of indictment and prior to the filing of the superior court information (see CPL 195.40). In any event, the correction did not prejudice the defendant on the merits (see CPL 200.70[1]).The defendant’s contention that the Supreme Court erred in determining that it did not have the authority at the time of sentencing to defer payment of the crime victim assistance fee and the DNA databank fee imposed pursuant to CPL 60.35 survives a valid waiver of the right to appeal (see People v. Thompson, 150 AD3d 1156, 1157). However, his contention is without merit (see People v. Jones, 26 NY3d 730).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Edward Brown, ap — (Ind. No. 7281/00)Appeal by the defendant from a resentence of the Supreme Court, Kings County (Michael Brennan, J.), imposed March 22, 2012, upon his conviction of robbery in the first degree, upon a jury verdict, the resentence being a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on June 14, 2001.ORDERED that the resentence is affirmed.Since the defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, his resentencing to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law (see People v. Lingle, 16 NY3d 621; People v. Dozier, 134 AD3d 951; People v. Williams, 116 AD3d 719; People v. Harrison, 112 AD3d 967).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Jaquelle James, ap — (Ind. No. 14-00152)Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered August 18, 2014, convicting him of murder in the second 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 Alex Smith for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to the appellant’s new counsel assigned herein; and it is further,ORDERED that Kenyon C. Trachte, 372 Fullerton Avenue, Box #19, Newburgh, NY, 12550, 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 November 9, 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.The brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) was deficient. The statement of facts, which is one page long, did not sufficiently describe the plea allocution. In particular, the statement of facts did not review, in any detail, the Supreme Court’s advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the plea was knowingly and voluntarily entered, or the appellant’s responses to any of those advisements and inquiries (see People v. Deprosperis, 126 AD3d 997, 998; People v. Donovan, 124 AD3d 793, 794; People v. Sedita, 113 AD3d 638, 639-640). Furthermore, it did not provide any detail regarding the appellant’s factual admission as to the crime charged or the colloquy regarding the appellant’s purported waiver of his right to appeal (see People Ferretti, 148 AD3d 720, 721; People v. Swenson, 130 AD3d 848, 849; People v. Sedita, 113 AD3d at 639-640).In addition, the brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Deprosperis, 126 AD3d at 998; People v. Donovan, 124 AD3d at 794; People v. McNair, 110 AD3d 742; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). In this respect, the brief merely states, in conclusory fashion, that counsel has “not been able to find any nonfrivolous issues which could be raised on this appeal.” The brief does not discuss the basis, with reference to the facts of the case and legal authority, of counsel’s conclusion that the appeal is wholly frivolous (see Smith v. Robbins, 528 US 259, 278 n 10; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 257). Since the brief did not demonstrate that assigned counsel fulfilled his obligations under Anders v. California, we must assign new counsel to represent the appellant (see People v. Rivera, 142 AD3d 512, 513; People v. Parker, 135 AD3d 966, 968; People v. Sedita, 113 AD3d at 639-640; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Dominic Peterson, ap — (Ind. No. 1467-15)Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (William J. Condon, J.), rendered June 29, 2016, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Sharice Williams, ap — (Ind. No. 5760/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin Murphy, J.), rendered January 6, 2016, convicting her of criminal possession of a controlled substance in the fifth degree, upon her plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Michael Galloway, ap — (Ind. No. 10289/15)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin Murphy, J.), rendered August 24, 2016, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Selwyn Worrell, ap — (Ind. No. 4695/14)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Elizabeth Foley, J., at plea; Guy Mangano, Jr., J., at sentence), imposed August 6, 2015, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.Given the defendant’s age, experience, and background, it is not apparent from the face of the record that he fully appreciated the consequences or understood the nature of the waiver of the right to appeal (see People v. Bradshaw, 18 NY3d 257, 260-261; cf. People v. Sanders, 25 NY3d 337, 340). Accordingly, the defendant’s purported waiver of the right to appeal was invalid and, thus, does not preclude review of his excessive sentence claim. Nevertheless, the defendant has completed the term of imprisonment imposed and, thus, his contention that this portion of the sentence was excessive has been rendered academic (see People v. Stockinger, 131 AD3d 550, 551; People v. Russillo, 27 AD3d 493, 494). The period of postrelease supervision imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.PEOPLE, etc., res, v. David Stevenson, ap — (Ind. No. 13-00067)Bruce D. Townsend, Walden, NY, for appellant, and appellant pro se.David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered May 22, 2014, convicting him of murder in the second degree, arson in the second degree, criminal possession of a weapon in the third degree (two counts), and cruelty to animals, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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), 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; 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). Moreover, the defendant waived any contention that the verdict is repugnant or inconsistent, since his counsel consented to not having the matter resubmitted to the jury (see People v. Bess, 142 AD3d 1098, 1099; People v. Williams, 81 AD3d 861; People v. Cervantes, 242 AD2d 730, 731; see also People v. Maldonado, 11 AD3d 114, 117).The County Court providently exercised its discretion in qualifying an individual to testify as an expert in the field of forensic document analysis based on his formal training and experience (see People v. Battease, 124 AD2d 807, 809; People v. Donaldson, 107 AD2d 758, 759). Moreover, the lack of a license or certification does not, in and of itself, disqualify a witness from testifying as an expert (see Steinbuch v. Stern, 2 AD3d 709, 710).The County Court should not have admitted into evidence a photo of the victim taken while she was still alive, as her appearance or identity was not relevant to a material issue at trial (see People v. Thompson, 34 AD3d 852; People v. Rodriguez, 1 AD3d 386, 387). However, this error was harmless (see People v. Stevens, 76 NY2d 833, 836; People v. Crimmins, 36 NY2d 230).Further, the defendant’s contention that the County Court erred in permitting the prosecution to elicit hearsay testimony from two witnesses relating to the defendant’s motive is unpreserved for appellate review. In any event, this testimony was admissible under the “state-of-mind” exception to the hearsay rule (see People v. Leath, 98 AD3d 690, 691; People v. Damon, 78 AD3d 860; People v. Jean-Baptiste, 51 AD3d 1037, 1038).The defendant’s contention that certain remarks made by the prosecutor during his summation were prejudicial and should have resulted in a mistrial is unpreserved for appellate review (see CPL 470.05[2]; People v. Rivera, 130 AD3d 655, 656). In any event, the challenged remarks were either within the broad bounds of rhetorical comment permissible in closing arguments, were fair response to arguments made by defense counsel in summation, or were fair comment on the evidence (see People v. Halm, 81 NY2d 819, 821; People v. Galloway, 54 NY2d 396, 399-401), or were harmless (see People v. Crimmins, 36 NY2d at 241-242; People v. Mairena, 150 AD3d 1267; People v. Hill, 286 AD2d 777, 778).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contentions are without merit.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.OneWest Bank, FSB, res, v. Kenneth Berino, et al., appellants def — (Index No. 61472/13)Appeals from a decision of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated May 27, 2016, and an order of that court, also dated May 27, 2016. The order, insofar as appealed from, upon the decision, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Kenneth Berino and Eva Berino, to strike their answer, and for the appointment of a referee to compute the amount due under a note and mortgage, and, in effect, denied those defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509); and it is further,ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Kenneth Berino and Eva Berino, to strike their answer, and for the appointment of a referee to compute the amount due under the note and mortgage, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.In March 2003, the defendants Kenneth Berino and Eva Berino (hereinafter together the Berino defendants) borrowed the sum of $322,700 from IndyMac Bank, F.S.B. (hereinafter IndyMac). The loan was memorialized by a note and secured by a mortgage on certain real property in New Rochelle. The Berino defendants allegedly defaulted on the loan by failing to make the payment due on June 1, 2010. Thereafter, the Federal Deposit Insurance Corporation (hereinafter the FDIC), as receiver for IndyMac Federal Bank, FSB, successor by merger to IndyMac, assigned the mortgage, together with the note, to OneWest Bank, FSB (hereinafter OneWest).In February 2011, OneWest commenced an action to foreclose the mortgage against, among others, the Berino defendants. The Berino defendants interposed an answer, and moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. In an order dated September 4, 2012, the Supreme Court granted that branch of the Berino defendants’ motion.In June 2013, OneWest commenced this action to foreclose the same mortgage. After the Berino defendants joined issue, OneWest moved, inter alia, for summary judgment on the complaint insofar as asserted against them, to strike their answer, and for the appointment of a referee to compute the amount due. The Berino defendants opposed the motion, and cross-moved for summary judgment dismissing the complaint insofar as asserted against them, inter alia, for lack of standing. The Supreme Court granted those branches of OneWest’s motion and denied the Berino defendants’ cross motion. The Berino defendants appeal.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689). Additionally, “[w]here, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief” (Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, 628 [internal quotation marks omitted], affd 25 NY3d 355). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 361; U.S. Bank N.A. v. Handler, 140 AD3d 948, 949). ”Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 754).Here, OneWest failed to meet its prima facie burden of establishing that it had standing as the holder or assignee of the note at the time it commenced the action (see Wells Fargo Bank, N.A. v. Talley, 153 AD3d 583, 584; Arch Bay Holdings, LLC v. Albanese, 146 AD3d 849, 852). In support of its motion, OneWest submitted the affidavit of Jillian Thrasher, an employee of its loan servicer, who averred that OneWest was the holder of the note, which is endorsed in blank, and assignee of the mortgage at the time the action was commenced. However, OneWest failed to demonstrate the admissibility of the records that Thrasher relied upon under the business records exception to the hearsay rule (see CPLR 4518[a]), since she did not attest that she was personally familiar with OneWest’s record-keeping practices and procedures (see Arch Bay Holdings, LLC v. Albanese, 146 AD3d at 853; Aurora Loan Serv., LLC v. Baritz, 144 AD3d 618, 620; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 685; U.S. Bank N.A. v. Handler, 140 AD3d at 949; Aurora Loan Servs., LLC v. Mercius, 138 AD3d 650, 652). Insofar as the Supreme Court reached its determination that OneWest had standing by, sua sponte, “independently tak[ing] judicial notice of the FDIC website,” this Court has repeatedly cautioned against such independent Internet investigations, especially when conducted without providing notice or an opportunity for the parties to be heard (see First United Mtg. Banking Corp. v. Lawani, 147 AD3d 912, 913; HSBC Bank USA, N.A. v. Taher, 104 AD3d 815, 818). Since OneWest failed to meet its prima facie burden, the court should have denied the subject branches of its motion without regard to the sufficiency of the Berino defendants’ opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Nevertheless, the Supreme Court properly denied the Berino defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them for lack of standing, as they failed to make a prima facie showing that OneWest lacked standing (see Filan v. Dellaria, 144 AD3d 967, 975; Deutsche Bank Trust Co. Ams. v. Vitellas, 131 AD3d 52, 59-60).The Berino defendants’ remaining contentions are without merit.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Lewis J. McLean, Jr., ap — (Ind. No. 88/13)Neal D. Futerfas, White Plains, NY, for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered August 13, 2014, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s valid waiver of his right to appeal precludes review of his contentions that the County Court erred in denying that branch of his omnibus motion which was to suppress physical evidence and that the sentence imposed was excessive (see People v. Lopez, 6 NY3d 248, 255; People v. Kane, 151 AD3d 751; People v. Sanders, 148 AD3d 846, 846-847; People v. Contreras, 123 AD3d 1139; People v. Brown, 122 AD3d 133, 144-145).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.PEOPLE, res, v. Marlon Young, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated July 14, 2015, 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 was convicted of course of sexual conduct against a child in the second degree and endangering the welfare of a child. Prior to his release from prison, the Board of Examiners of Sex Offenders presumptively classified the defendant as a level two sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA). At a SORA hearing, the defendant argued in favor of a downward departure. The Supreme Court denied that application and designated the defendant a level two sex offender. The defendant appeals.“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, 686-687; see SORA: Risk Assessment Guidelines and Commentary [2006] [hereinafter Guidelines]; People v. Gillotti, 23 NY3d 841, 861; People v. Rocano-Quintana, 149 AD3d 1114). Here, the defendant failed to identify the existence of any such mitigating factor (see Guidelines; People v. Curry, __ AD3d __, 2017 NY Slip Op 09184 [2d Dept 2017]; People v. Warren, 152 AD3d 551; People v. Rocano-Quintuna, 149 AD3d at 1115; People v. Nieves, 149 AD3d 881; People v. Mercer, 148 AD3d 1187; People v. Rose, 146 AD3d 911; People v. Alexander, 144 AD3d 1008; People v. Vizcarra, 138 AD3d 815).The defendant’s remaining contention is without merit.Accordingly, the defendant was properly designated a level two sex offender.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Tejmitra Singh, ap — (Ind. No. 15-01140)Steven A. Feldman, Uniondale, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and William C. Milaccio of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered October 26, 2016, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that his plea of guilty was not knowingly, voluntarily, or intelligently entered is unpreserved for appellate review (see CPL 470.05[2]; People v. Linares, 116 AD3d 792; People v. Jackson, 114 AD3d 807; People v. Adio, 111 AD3d 757, 758). In any event, this contention is without merit. Contrary to the defendant’s contention, a court may attach reasonable conditions to its acceptance of a plea of guilty, including that the defendant agree to waive his or her right to appeal (see generally People v. Shervington, 25 AD3d 628). Further, the defendant’s contention that the plea was rendered involuntary because part of the plea allocution was conducted by the prosecutor is without merit. Here, the Supreme Court conducted the initial voir dire, and to the extent that the prosecution directed questions as part of the plea allocution, the court supervised such voir dire and it did not constitute an abrogation of the court’s responsibility (see People v. Johnson, 140 AD3d 1188, 1189; People v. Linares, 116 AD3d 792; People v. Adio, 111 AD3d at 758; People v. Bethune, 91 AD3d 966, 966-967). The defendant’s plea was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 NY3d 780; People v. Harris, 61 NY2d 9, 17; People v. Bennett, 122 AD3d 871, 872).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Carlton Brown, ap — (Ind. No. 15-00756)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered July 28, 2016, convicting him of manslaughter 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 Gerald Zuckerman 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 Randall Richards, 1428 Midland Avenue, Suite 6, Bronxville, NY, 10708, 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 January 24, 2017, 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.In reviewing an attorney’s motion to be relieved pursuant to Anders v. California (386 US 738), this Court must first “‘satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal’” (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 255, quoting Penson v. Ohio, 488 US 75, 83). As this Court explained in Matter of Giovanni S., “counsel must, at a minimum, draw the Court’s attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).Here, the brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) was deficient because it failed to analyze potential appellate issues with reference to relevant legal authority or highlight facts in the record that might arguably support the appeal (see People v. Randolph, 156 AD3d 818; People v. Rivera, 142 AD3d 512; People v. Parker, 135 AD3d 966, 968; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California (386 US 738), we must assign new counsel to represent the appellant (see People v. Sedita, 113 AD3d 638, 640; People v. McNair, 110 AD3d 742, 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Rivera, J.P.; Leventhal, Austin and Hinds-Radix, JJ.PEOPLE, etc., res, v. Kevin Pazmini, ap — (Ind. No. 1667/11)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 October 28, 2015 (People v. Pazmini, 132 AD3d 1015), affirming a judgment of the Supreme Court, Queens County, rendered June 12, 2013.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., LEVENTHAL, AUSTIN and HINDS-RADIX, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Duffy, JJ.PEOPLE, etc., res, v. Mark Wallace, ap — (Ind. No. 7/12)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 13, 2015 (People v. Wallace, 128 AD3d 866), affirming a judgment of the County Court, Dutchess County, rendered May 16, 2013.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).CHAMBERS, J.P., HINDS-RADIX, MALTESE and DUFFY, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.Milagros Cortes, res, v. Taravella Family Trust, ap — (Index No. 707651/14)Appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated December 21, 2016. The order denied the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff allegedly was injured when she tripped and fell due to a crack in the concrete floor of the defendant’s backyard in Queens. Thereafter, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that the crack at issue was trivial and therefore not actionable. The Supreme Court denied the motion, and the defendant appeals.Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 NY2d 976, 977). However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see id. at 977). In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (id. at 978 [internal quotation marks omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 77).“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 79; see Chojnacki v. Old Westbury Gardens, Inc., 152 AD3d 645, 646). Contrary to the defendant’s contention, it failed to establish, prima facie, that the alleged defective condition was trivial as a matter of law and therefore not actionable (see Craig v. Meadowbrook Pointe Homeowner’s Assn., Inc., __ AD3d __, 2018 NY Slip Op 00819 [2d Dept 2018]; Chojnacki v. Old Westbury Gardens, Inc., 152 AD3d at 646; Parente v. City of New York, 144 AD3d 1117, 1118). Accordingly, the Supreme Court properly denied its motion for summary judgment dismissing the complaint.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Roman, J.P., Sgroi, Connolly, Christopher, JJ.MATTER of Kadeem Drummonds, petitioner, v William Harrington, etc., et al., respondents.Seymour W. James, Jr., Brooklyn, NY (Rebecca Besdin and Laura Guthrie of counsel), for petitioner.Eric Gonzalez, District Attorney, Brooklyn, NY (Maria Schiavone of counsel), respondent pro se.Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the enforcement of an order of the respondent William Harrington, an Acting Justice of the Supreme Court, Kings County, dated October 20, 2017, in a criminal action entitled People v. Drummonds, pending in that court under indictment No. 7337/16, which granted the motion of the respondent District Attorney, Kings County, to compel the petitioner to submit to a buccal swab for the purpose of DNA testing, and application by the petitioner for poor person relief.ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.The petitioner was indicted for, inter alia, criminal possession of a weapon in the second degree and robbery in the first degree. The respondent Eric Gonzalez, District Attorney of Kings County, moved pursuant to CPL 240.40(2)(b)(v) to compel the petitioner to submit to a buccal swab, and the respondent William Harrington, an Acting Justice of the Supreme Court, Kings County, granted that motion. The petitioner then commenced the instant proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit enforcement of that order.The petitioner has failed to establish that Acting Justice Harrington lacked jurisdiction or acted in excess of his authorized powers (see Matter of Anonymous, 76 NY2d 766, 767-768; Matter of Holtzman v. Goldman, 71 NY2d 564, 569; Matter of Miller v. Foley, 145 AD3d 1011, 1011; Matter of Weissman v. Lange, 4 AD3d 478, 478-479). Inasmuch as the petitioner has adequate legal remedies in the pending criminal action in the form of motions or appellate review, prohibition does not lie to review a discovery order that directed him to provide a buccal swab pursuant to CPL 240.40 (see Matter of Miller v. Foley, 145 AD3d at 1011; Matter of Weissman v. Lange, 4 AD3d at 478-479). ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J., Mastro, Rivera, Dillon, Balkin, JJ.MOTION FOR REINSTATEMENT MATTER of Thomas Anthony Sirianni, a suspended attorney.(Attorney Registration No. 2954154) Motion by Thomas Anthony Sirianni for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Sirianni was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 14, 1999. By decision and order on motion of this Court dated May 15, 2012, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against Mr. Sirianni for acts of professional misconduct set forth in a verified petition dated February 28, 2012, and the issues raised were referred to the Honorable Georgia Tschiember, as Special Referee, to hear and report. By opinion and order of this Court dated September 10, 2014, Mr. Sirianni was suspended from the practice of law for a period of two years, commencing October 10, 2014. By decision and order on motion of this Court dated February 10, 2017, Mr. Sirianni’s motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on Mr. Sirianni’s character and fitness to practice law.Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is ORDERED that the motion is granted; and it is further,ORDERED that, effective immediately, Thomas Anthony Sirianni is reinstated as an attorney and counselor-at-law, and the Clerk of the Court is directed to restore the name of Thomas Anthony Sirianni to the roll of attorneys and counselors-at-law.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J., Mastro, Rivera, Dillon, Balkin, JJ.MOTION FOR REINSTATEMENTMATTER of Keith John Kalmus, a disbarred attorney. (Attorney Registration No. 2835577)  Motion by Keith John Kalmus for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Kalmus was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on August 20, 1997. By opinion and order of this Court dated February 27, 2007, Mr. Kalmus was disbarred based on his conviction of a felony, effective immediately, and his name was stricken from the roll of attorneys and counselors-at-law. By decision and order on motion of this Court dated January 11, 2017, Mr. Kalmus’s motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on his character and fitness to practice law.Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is ORDERED that the motion is granted; and it is further,ORDERED that, effective immediately, Keith John Kalmus is reinstated as an attorney and counselor-at-law, and the Clerk of the Court is directed to restore the name of Keith John Kalmus to the roll of attorneys and counselors-at-law.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Dillon, J.P., Balkin, Hall, Lasalle, JJ.The People, etc., ex rel. Mark A. Bederow, on behalf of John Giuca, petitioner, v. Warden of Anna M. Kross Correctional Facility at Rikers Island, etc., respondent.Mark A. Bederow, New York, NY, petitioner pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Diane R. Eisner of counsel), for respondent. Writ of habeas corpus in the nature of an application for bail reduction upon Kings County Indictment No. 8166/04 to release John Giuca on his own recognizance or to set reasonable bail. ADJUDGED that the writ is dismissed, without costs or disbursements. The determination of the Supreme Court, Kings County, did not violate “constitutional or statutory standards” (People ex rel. Klein v. Kruger, 25 NY2d 497, 499; see People ex rel. Rosenthal v. Wolfson, 48 NY2d 230). 

Motion List released on:February 28, 2018