Appellate Advocates (Laura B. Tatelman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle S. Fenn of counsel), for respondent.2015-798 Q CR. THE PEOPLE v. PEELS, GARY — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gia L. Morris, J.), rendered February 2, 2015. The judgment convicted defendant, upon his plea of guilty, of reckless endangerment in the second degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.Appellate Advocates (Golnaz Fakhimi and Benjamin Litman of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Keith Dolan and Arieh Schulman of counsel), for respondent.2015-1485 K CR. THE PEOPLE v. BROWN, LINETON — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), rendered May 29, 2015. The judgment convicted defendant, after a nonjury trial, of menacing in the third degree and harassment in the second degree.ORDERED that the judgment of conviction is affirmed.Following a nonjury trial, defendant was convicted of menacing in the third degree (Penal Law §120.15) and harassment in the second degree (Penal Law §240.26 [1]). Defendant’s contention that the evidence was legally insufficient is not preserved for appellate review as defense counsel only made a general motion for a trial order of dismissal (see People v. Carncross, 14 NY3d 319, 324-325 [2010]). In any event, viewing the evidence in a light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to sustain defendant’s convictions.In conducting an independent review of the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007]), this court accords great deference to the factfinder’s opportunity to view the witnesses, hear their testimony, and observe their demeanor. This court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. We must then determine, based on the credible evidence, whether a different result would have been unreasonable (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Mateo, 2 NY3d 383 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]; People v. Zephyrin, 52 AD3d 543 [2008]). Here, we are satisfied that the verdict was not against the weight of the credible evidence with respect to either of the charges.We reject defendant’s contention that he was denied the effective assistance of counsel. As the evidence is legally sufficient to support the convictions, counsel’s failure to move for a trial order of dismissal based upon the contentions now raised on appeal does not constitute ineffective assistance of counsel (see People v. Broomfield, 134 AD3d 1443, 1444 [2015]) since such a motion would have had little or no chance of success (see People v. Stultz, 2 NY3d 277, 287 [2004]; People v. Horton, 79 AD3d 1614, 1616 [2010]).Accordingly, the judgment of conviction is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018New York City Legal Aid Society (Joanne Legano Ross of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Keith Dolan of counsel), for respondent.2015-1833 K CR. THE PEOPLE v. CEIRO D. (ANONYMOUS) — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered June 30, 2015. The judgment adjudicated defendant a youthful offender, upon his plea of guilty to petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment adjudicating defendant a youthful offender is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Appellate Advocates (Laura B. Tatelman of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2015-1961 K CR. THE PEOPLE v. McMILLAND, KEVIN — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered July 9, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018Appellate Advocates (Anna Kou of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.2015-2130 K CR. THE PEOPLE v. MASSA, EDWIN — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered August 6, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of stolen property in the fifth degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur. February 2, 2018New York City Legal Aid Society (Joanne Legano Ross of counsel)Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle S. Fenn of counsel), for respondent.2015-2412 Q CR. THE PEOPLE v. XIN JIN — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Dorothy Chin Brandt, J.), rendered November 6, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted unlawful surveillance in the second degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Bruno, Gerbino & Soriano, LLP (Nathan Shapiro, Esq.), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard, Esq.), for respondent.2015-2732 K C. PRO-MED MED., P.C. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 1, 2015. The order denied defendant’s motion to vacate a judgment of that court entered October 3, 2001, upon defendant’s failure to appear or answer the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion, pursuant to, among other things, CPLR 5015 (a) (1), to vacate a default judgment entered on October 3, 2001, upon defendant’s failure to appear or answer the complaint.A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v. Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). Defendant’s motion was based upon allegations that it had first learned of the action in 2014 and first learned of the judgment in 2015, but those allegations were based neither on personal knowledge nor, apparently, on defendant’s records. Defendant’s claims manager alleged that defendant’s files had been scanned into a computer system in 2006 and implied that the documentation relevant to this claim had not been scanned. He specifically alleged that defendant “has no documentation whatsoever with which to evaluate this claim.” Thus, defendant has not demonstrated that it has a reasonable excuse for its default or a meritorious defense to the action. Defendant’s remaining contentions lack merit or were raised for the first time on appeal.Accordingly, the order is affirmed. WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Appellate Advocates (Benjamin S. Litman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Anastasia Spanakos of counsel), for respondent.2015-2754 Q CR. THE PEOPLE v. DOUGLAS, NICHOLAS L. — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered November 5, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018Appellate Advocates (Ronald Zapata of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Amy Appelbaum of counsel), for respondent.2015-2794 K CR. THE PEOPLE v. MEDINA, JORDAN — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered November 5, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), 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 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018Michael R. Curran, for undertenants-appellants. The Law Offices of Perry Ian Tischler, P.C. (Perry Ian Tischler), for respondent.2016-1014 Q C. EFAPLOMATIDIS v. AIRES MEXICANOS REST. CORP. — Appeal from an order of the Civil Court of the City of New York, Queens County (Donna Marie Golia, J.), dated April 15, 2016. The order, in effect, denied a motion by Jose Santamaria Cortez and Tropicana Corp. to vacate a final judgment and warrant, dismiss the petition, and be restored to possession in a nonpayment summary proceeding.ORDERED that the order is affirmed, without costs. The parties to this commercial nonpayment proceeding entered into a so-ordered, two-attorney stipulation of settlement in December 2012, which provided, among other things, for the payment of arrears, that Jose Santamaria Cortez and Tropicana Corporation (appellants) be “substituted into the caption, as named parties for all purposes,” and that they consented to the jurisdiction of the court and waived all defenses. The stipulation awarded landlord a final judgment of possession, with a warrant of eviction to issue forthwith, to be stayed pursuant to the terms of the stipulation. The stipulation also provided that, in the event of a default, landlord “may execute on Marshal’s Notice” after a five-day grace period and after an additional five-day cure period. By letter from his counsel dated December 4, 2015, landlord notified appellants of a default in rent and in the arrears payments for November and December 2015, and appellants were subsequently evicted. Thereafter, appellants moved to, among other things, vacate the final judgment and warrant and be restored to possession. Appellants appeal from an order of the Civil Court which denied their motion. On appeal, appellants contend that the Civil Court lacked subject matter jurisdiction on the ground, among others, that named tenant Aires Mexicanos Restaurant Corp. had “abandon[ed] the premises,” prior to the commencement of this proceeding, due to a temporary restraining order filed on December 9, 2010 in a Supreme Court action brought by appellant Jose Santamaria Cortez. This contention lacks merit.“Subject matter jurisdiction concerns a court’s competence to entertain a particular kind of application (see Matter of Fry v. Village of Tarrytown, 89 NY2d 714, 718 [1997]; Lacks v. Lacks, 41 NY2d 71, 75 [1976]; Thrasher v. United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]). A court’s power to entertain a particular kind of application is conferred by constitution or statute alone (see Matter of Fry v. Village of Tarrytown, 89 NY2d at 718)” (Saccheri v. Cathedral Props. Corp., 43 Misc 3d 20, 25 [App Term, 2d Dept, 9th & 10th Jud Dists 2014] [internal quotation marks and citation omitted]). By virtue of NY Constitution, article VI, §15, CCA 204, and RPAPL 701 and 711, the Civil Court had subject matter jurisdiction over this summary proceeding (see also Birchwood Towers #2 Assoc. v. Schwartz, 98 AD2d 699 [1983]). As to in personam and in rem jurisdiction, since appellants stipulated to be substituted as parties and waived all defenses, they waived any claim that jurisdiction over them or over the property had not properly been obtained (cf. Bay Ridge Chicken Grill, Inc. v. Cirrus Data Intl., LLC, 49 Misc 3d 133[A], 2015 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Appellants’ contention that the stipulation of settlement contained a “scrivener’s error” which caused a mathematical misunderstanding in the amount owed under the stipulation was not raised in their motion papers in the Civil Court, and, thus, is without support in the record. Accordingly, the order is affirmed. PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. (Virginia K. Trunkes), for appellant. Brooklyn Legal Services (Shannon Karam and Jane Landry Reyes), for respondent.2016-1792 K C. ANDREWS v. ACACIA NETWORK — Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Maria Ressos, J.), entered February 24, 2016. The final judgment, upon a decision of that court dated February 23, 2016, made upon stipulated facts, awarded possession to petitioner in an unlawful entry and detainer summary proceeding.ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.After he had been denied entry to a room he shared in a supportive living facility operated by Acacia Network (Acacia) for individuals with substance abuse problems (see generally 14 NYCRR ch 21, part 800 et seq.), petitioner commenced this unlawful entry and detainer proceeding (RPAPL 713 [10]) seeking to be restored thereto. Acacia answered, asserting that it was entitled to use self-help to regain possession since petitioner was a licensee and, in addition, that petitioner had signed a “Resident Attestation” in which he had agreed that he had no tenancy rights to the premises. In response, petitioner argued that, pursuant to RPAPL 711 and New York City Administrative Code §26-521, Acacia had been required to commence a summary proceeding to remove him. The Civil Court held that petitioner was a tenant, that the “Resident Attestation” was unenforceable and that Acacia was required to commence a summary proceeding to remove petitioner, and awarded petitioner a final judgment of possession.In the “Resident Attestation,” petitioner acknowledged that he had no tenancy rights. While “this court is not obligated to accept the parties’ characterization that [petitioner] was a licensee rather than a tenant (see 1 [Robert F.] Dolan, Rasch’s Landlord and Tenant—Summary Proceedings §4:1, at 170-173 [4th ed])” (Federation of Orgs., Inc. v. Bauer, 6 Misc 3d 10, 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]), here, Acacia did not grant petitioner exclusive dominion and control of a specifically identified portion of the premises, nor were there any locks on any of the dormitory-style rooms. Thus, petitioner is a licensee and not a tenant (see id.; see also David v. #1 Mktg. Serv., Inc., 113 AD3d 810 [2014] [residents of a three-quarter house were licensees, not tenants]; Coppa v. LaSpina, 41 AD3d 756 [2007] [residents of a facility providing mentally ill homeless adults with housing and rehabilitative services were licensees]). Since a licensee does not have “possession,” he cannot maintain an unlawful entry and detainer proceeding (RPAPL 713 [10]; see Napier v. Spielmann, 196 NY 575 [1909], affg on op of Houghton, J. 127 App Div 567 [1908]; P & A Bros. v. City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267 [1992]; Korelis v. Fass, 26 Misc 3d 133[A], 2010 NY Slip Op 50122[U] [App Term, 1st Dept 2010]).Contrary to the Civil Court’s determination, the unlawful eviction provisions of Administrative Code of the City of NY §26-521 do not operate to change a license or other nonpossessory interest into a possessory interest. While these provisions may “subject a violator to criminal liability and civil penalties, [they] do not provide an avenue through which [an occupant] can be restored to possession of an apartment (see Barclay v. Natoli, NYLJ, Dec. 30, 1998 [App Term, 2d & 11th Jud Dists])” (Clarke v. Copenhagen Leasing, L.P., 48 Misc 3d 27 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). The Civil Court also invoked RPAPL 711 in support of its determination that petitioner could maintain this proceeding. RPAPL 711 provides in pertinent part:“A tenant shall include an occupant of one or more rooms in a rooming house…who has been in possession for thirty consecutive days or longer.”As noted above, petitioner was not in “possession” of a room, and the supportive living facility in which he shared a room is not a “rooming house.” In any event, like the Administrative Code unlawful eviction provisions, RPAPL 711 does not operate to convert a license into a possessory interest (see generally Sasmor v. Powell, 11 Civ 4645, 2015 WL 5458020 [ED NY, Sept. 17, 2015]).The Civil Court’s reliance upon Cooper v. Back on Track Group, Inc. (45 Misc 3d 623 [Civ Ct, Kings County 2014]) in holding that the “Resident Attestation” is unconscionable and unenforceable as a waiver of petitioner’s rights under the RPAPL and the New York City Administrative Code was also misplaced. Cooper failed to address David (113 AD3d 810) and Coppa (41 AD3d 756), both of which hold that a waiver of rights under RPAPL 711 and New York City Administrative Code §26-521 is not unconscionable and is enforceable. Although Coppa, David, and Bauer all arose in slightly different contexts, they unequivocally establish that petitioner in the instant case, like residents in three-quarter housing who are not given exclusive dominion and control of a part of the premises, are licensees, and that “Resident Attestations” which waive any claim of tenancy are not per se invalid and unenforceable (contra Shearin v. Back on Track Group, Inc. (46 Misc 3d 910 [Civ Ct, Kings County 2014]).Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018Borah, Goldstein, Altschuler, Nahins & Goidel, P.C. (Virginia K. Trunkes), for respondent-appellant.David Soto, Jr., petitioner-respondent pro se (no brief filed).2016-2026 K C. SOTO v. PITKIN JUNIUS HOLDINGS, LLC — Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), entered July 15, 2016. The final judgment, insofar as appealed from, upon a decision of that court dated July 12, 2016, made upon stipulated facts, awarded possession to petitioner as against Acacia Network, Inc. in an unlawful entry and detainer summary proceeding.ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.After he had been denied entry to a room he shared in a supportive three-quarter house which was leased by Acacia Network, Inc. (Acacia) from Pitkin Junius Holdings, LLC (Pitkin) and operated by Acacia for individuals with substance abuse problems (see generally 14 NYCRR ch 21, part 800 et seq.), petitioner commenced this unlawful entry and detainer proceeding (RPAPL 713 [10]) seeking to be restored thereto. Pitkin did not answer the petition or appear in the proceeding. In its answer, Acacia asserted that it was entitled to use self-help to regain possession since petitioner was a licensee and, in addition, petitioner had signed a “Resident Attestation” in which he had agreed that he had no tenancy rights to the premises. In response, petitioner argued that, pursuant to RPAPL 711 and New York City Administrative Code §26-521, Acacia had been required to commence a summary proceeding to remove him. The Civil Court held that petitioner was a tenant, that the “Resident Attestation” was unenforceable and that Acacia was required to commence a summary proceeding to remove petitioner, and awarded petitioner a final judgment of possession.For the reasons stated in Andrews v. Acacia Network (__ Misc 3d ___, 2018 NY Slip Op ______ [appeal No. 2016-1792 K C], decided herewith), the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition. We note that while only Acacia appealed, the final judgment must be reversed in its entirety in order to grant complete relief to Acacia.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 2, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.2016-2307 K C. EAGLE SURGICAL SUPPLY, INC. v. COUNTRY-WIDE INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007. ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.Plaintiff commenced this action to recover assigned first-party no-fault benefits on January 8, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,131.68. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgement interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,131.68 and, among other things, no-fault statutory prejudgment interest from January 8, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 8, 2007.No-fault statutory prejudgment interest (see Insurance Law §5106 [a]) begins to accrue when the action is commenced (see 11 NYCRR 65-3.9 [c]), “unless the applicant unreasonably delays the…court proceeding” (11 NYCRR 65-3.9 [d]). While a significant amount of time elapsed between the commencement of this action and the trial, defendant did not adequately demonstrate to the Civil Court, and there was nothing in the record to indicate, the reason for the protracted delay or that it was plaintiff which had “unreasonably delay[ed]” the action (cf. Kew Gardens Med & Rehab, P.C. v. Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v. Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Aminov v. Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Accordingly, as there was no basis for the Civil Court to toll the accrual of no-fault statutory prejudgment interest, the judgment, insofar as appealed from, is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.2016-2309 K C. EAGLE SURGICAL SUPPLY, INC. v. COUNTRY-WIDE INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from January 29, 2006. ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2006. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $831.25. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $831.25 and, among other things, no-fault statutory prejudgment interest from January 29, 2006. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from January 29, 2006.For the reasons stated in Eagle Surgical Supply, Inc., as Assignee of Warlin Mordan v. Country-Wide Ins. Co. (____ Misc 3d _____, 2018 NY Slip Op _______ [appeal No. 2016-2307 K C], decided herewith), the judgment, insofar as appealed from, is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.2016-2310 K C. EAGLE SURGICAL SUPPLY, INC. v COUNTRY-WIDE INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from June 21, 2007. ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.Plaintiff commenced this action to recover assigned first-party no-fault benefits on June 21, 2007. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $1,462.33. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $1,462.33 and, among other things, no-fault statutory prejudgment interest from June 21, 2007. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from June 21, 2007.For the reasons stated in Eagle Surgical Supply, Inc., as Assignee of Warlin Mordan v. Country-Wide Ins. Co. (____ Misc 3d _____, 2018 NY Slip Op ______ [appeal No. 2016-2307 K C], decided herewith), the judgment, insofar as appealed from, is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Korsunskiy Legal Group, P.C. (Henry Guindi, Esq.), for respondent.2016-2837 K C. EAGLE SURGICAL SUPPLY, INC. v COUNTRY-WIDE INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 21, 2015. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff no-fault statutory prejudgment interest from August 17, 2006. ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2006. After a nonjury trial held on November 3, 2014, the Civil Court found in favor of plaintiff and awarded it the principal sum of $2,763.17. Defendant made an oral application to the court to toll the accrual of no-fault statutory prejudgment interest based upon plaintiff’s delay in the prosecution of the action. In the alternative, defendant sought to submit a posttrial brief on the tolling issue. The Civil Court denied defendant’s requests, and a judgment was entered on May 21, 2015 awarding plaintiff the principal sum of $2,763.17 and, among other things, no-fault statutory prejudgment interest from August 17, 2006. As limited by its brief, defendant appeals from so much of the judgment as awarded plaintiff no-fault statutory prejudgment interest from August 17, 2006.For the reasons stated in Eagle Surgical Supply, Inc., as Assignee of Warlin Mordan v. Country-Wide Ins. Co. (____ Misc 3d _____, 2018 NY Slip Op _______ [appeal No. 2016-2307 K C], decided herewith), the judgment, insofar as appealed from, is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 2, 2018By: Pesce, P.J., Aliotta, Solomon, JJ.2015-2102 K C. 1646 UNION, LLC v. HYNDMAN — Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, entered August 3, 2015, 2015, in effect, to restore the appeal to the general calendar, and to reinstate and continue a stay granted by decision and order on motion of this court dated November 12, 2015, and extended by decisions and orders on motion of this court dated March 14, 2016, July 8, 2016, January 24, 2017 and April 6, 2017, respectively. By decision and order on motion of this court dated October 27, 2017, the appeal was stricken from this court’s calendars, as the notice of appeal was defective. By order dated November 1, 2017, the Civil Court granted appellant’s motion to amend the notice of appeal, which was then re-served and filed.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking to restore the appeal to the general calendar is denied as unnecessary, as the appeal will automatically be restored to the general calendar once the record on appeal is received from the Civil Court; and it is further,ORDERED that the branch of the motion seeking to reinstate and continue the stay is granted on condition that appellant perfect the appeal by February 2, 2018 and continue to comply with the other conditions contained in the decision and order on motion of this court dated November 12, 2015; and it is further,ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days’ notice.February 2, 2018Ninth and TenthJudical DisTRICTSBy: Garguilo, J.P., Marano, Ruderman, JJ.Law Office of Robert DiDio (Danielle Muscatello of counsel), for appellant. Nassau County District Attorney (Daniel Bresnahan of counsel), for respondent.2016-251 N CR. THE PEOPLE v. CLERMONT, ADLER — Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered August 3, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny.ORDERED that the judgment of conviction is affirmed.Defendant was charged in a felony complaint with grand larceny in the third degree (Penal Law §155.35 [1]). On June 4, 2015, defendant pleaded guilty to the reduced charge of petit larceny (Penal Law §155.25), in satisfaction of three separate dockets that were before the District Court, and, on August 3, 2015, he was sentenced to six months in jail. On appeal, defendant contends that the waiver of his right to appeal is unenforceable and that the plea allocution was defective.We note, as a threshold matter, that a defendant may waive the right to appeal as a condition of a guilty plea (see People v. Lopez, 6 NY3d 248, 255 [2006]; People v. Seaberg, 74 NY2d 1, 10 [1989]; People v. Brown, 122 AD3d 133 [2014]). Generally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to “the very heart of the process” (Lopez, 6 NY3d at 255; see People v. Pacherille, 25 NY3d 1021, 1023 [2015]). However, a waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily, which occurs when a defendant has a full appreciation of the consequences of the waiver (see People v. Bradshaw, 18 NY3d 257, 264 [2011]; Lopez, 6 NY3d at 256; Brown, 122 AD3d at 136) and of the fact that this waiver is separate and distinct from those trial rights automatically forfeited upon a plea of guilty (see People v. Leach, 26 NY3d 1154 [2016]; Lopez, 6 NY3d at 256). Here, as conceded by the People, defendant’s waiver of his right to appeal was ineffective since the record failed to establish that he understood that the right to appeal was separate and distinct from his trial rights, which were automatically forfeited upon his plea of guilty (cf. People v. Bryant, 28 NY3d 1094 [2016]). Thus, since defendant did not have a full appreciation of the consequences of this waiver, it cannot be considered to have been made knowingly, intelligently and voluntarily. He is, therefore, not precluded from bringing this appeal.Nonetheless, by failing to move in the District Court either to withdraw his guilty plea (see CPL 220.60 [3]) or to vacate the judgment of conviction (see CPL 440.10), defendant failed to preserve the issues now raised on appeal pertaining to the validity of his plea (see People v. Williams, 27 NY3d 212 [2016]; Leach, 26 NY3d at 1154). As defendant was sentenced almost two months after he had entered his plea of guilty and, upon a review of the record, we find no suggestion from the allocution that the guilty plea was improvident or baseless since nothing said during the allocution cast significant doubt upon defendant’s guilt, negated an essential element of the crime, or called into question the voluntariness of the plea, the narrow exceptions to the preservation requirement do not apply here (see People v. Conceicao, 26 NY3d 375 [2015]; People v. Lopez, 71 NY2d 662, 666 [1988]; cf. People v. Louree, 8 NY3d 541 [2007]). We decline to review these issues in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]). Accordingly, the judgment of conviction is affirmed.GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 1, 2018By: Garguilo, J.P., Tolbert, Ruderman, JJ.Gregory G. Hoover, for appellant. Orange County District Attorney (Nicholas D. Mangold of counsel), for respondent.2016-1491 OR CR. THE PEOPLE v. NEWCOMB, ROBERT — Appeal from judgments of the Justice Court of the Town of Wallkill, Orange County (Joseph A. Owen, J.), rendered June 2, 2016. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and common-law driving while intoxicated. ORDERED that the judgments of conviction are affirmed.Following a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law §1192 [2]) and common-law driving while intoxicated (Vehicle and Traffic Law §1192 [3]). On appeal, defendant’s sole contention is that the judgments of conviction should be reversed because the Justice Court, following a combined Ingle/Dunaway/Huntley hearing, improperly determined that the stop of his vehicle was legal.A traffic stop is permissible when the ” ‘officer has probable cause to believe that the driver of an automobile has committed a traffic violation’ ” (People v. Guthrie, 25 NY3d 130, 133 [2015], quoting People v. Robinson, 97 NY2d 341, 349 [2001]). “Probable cause…’does not require proof…beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed’ ” (People v. Guthrie, 25 NY3d at 133, quoting People v. Bigelow, 66 NY2d 417, 423 [1985]; see People v. Robinson, 97 NY2d at 353-354; People v. White, 40 AD3d 535, 536 [2007]). In addition, “an automobile stop is lawful so long as it is demonstrated that a traffic violation occurred, and it is not necessary that [the] defendant be charged with the specific violation established at a…hearing” (People v. Gramajo, 49 Misc 3d 131[A], 2015 NY Slip Op 51435[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). ” ‘All that is required is that [the officer] have had a reasonable cause to believe that [the] defendant had violated [the] Vehicle and Traffic Law’ ” (People v. Gingras, 22 Misc 3d 22, 23 [App Term, 2d Dept, 9th & 10th Jud Dists 2008], quoting People v. Hiker, 133 AD2d 986, 988 [1987]; see also People v. Gramajo, 49 Misc 3d 131[A], 2015 NY Slip Op 51435[U], *2). At the hearing, a sheriff’s deputy testified that the speed limit was 45 miles per hour; that he had observed defendant’s vehicle traveling “at a high rate of speed…well above the speed limit”; and that, as he had followed defendant’s vehicle in his patrol car for a quarter or half mile, he had to exceed the speed limit in order to catch up to defendant’s vehicle. Following the hearing, the Justice Court, crediting the deputy’s testimony, found the stop to be lawful. It is well settled that the credibility determinations of a hearing court, which had the advantage of hearing and seeing the witnesses firsthand, are to be accorded great weight on appeal and should not be disturbed unless clearly erroneous (see People v. Prochilo, 41 NY2d 759, 761 [1977]; People v. Francis, 44 AD3d 788, 789 [2007]; People v. Turner, 53 Misc 3d 130[A], 2016 NY Slip Op 51368[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Under the circumstances presented (see People v. Bigelow, 66 NY2d at 423), we find that the Justice Court properly concluded that defendant’s vehicle had been lawfully stopped. The evidence established that the deputy had a reasonable belief that defendant had violated Vehicle and Traffic Law section 1180 (d) (see People v. White, 40 AD3d at 536), regardless of any other underlying motivation (see People v. Robinson, 97 NY2d at 349). Accordingly, the judgments of conviction are affirmed.GARGUILO, J.P., and RUDERMAN, J., concur.TOLBERT, J., taking no part.February 1, 2018
