345 East 69th Street Owners Corp., et al., Plaintiffs-Respondents, v. Platinum First Cleaners, Inc., doing business as Splendid Cleaners, et al.,Defendants, Kenneth Huang,Defendant-Appellant.Law Office of Mark Krassner, New York (Mark Krassner of counsel), for appellant. Press Koral LLP, New York (Matthew J. Press of counsel), for respondents. Judgment, Supreme Court, New York County (Barry R. Ostrager, J.), entered November 29, 2016, awarding plaintiffs damages as against defendant Kenneth Huang, unanimously modified, on the law, to reduce the award of lost rent from $196,811.88 to $124,811.88 and vacate the award for real estate escalation charges, and otherwise affirmed, without costs. The Clerk is directed to enter an amended judgment accordingly. Appeal from order, same court and Justice, entered on or about November 23, 2016, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.Plaintiff is a cooperative corporation. Defendant Kenneth Huang is a personal guarantor under a commercial sublease, in which plaintiff is the landlord. This action seeks damages against him after the subtenant prematurely vacated the demised premises. Partial summary judgment was granted on the issue of liability and, following a trial on damages, a judgment in the amount of $343,054.30 was entered against Huang. On this appeal Huang argues that the damages were incorrectly awarded on inadmissible, incompetent evidence. We agree in part.The trial court awarded damages consisting of $196,811.88 representing lost rent over the remainder of the sublease, $48,922.68 in real estate escalation charges, $5,694.18 for the cost of a new sign, $12,300 representing the costs of preparing the demised premises for rerental, and $21,204 representing the proportional real estate broker’s fee for obtaining a new tenant. The court also awarded plaintiff $15,000, representing the reasonable attorneys fees attributable to the prosecution of this action. We modify the damages to reduce the amount for lost rent to $124,811.88 and to vacate the award for real estate escalation charges. The award of damages is in all other respects affirmed. The only witnesses who testified at trial were Larry Kopp and Rahol Sharma, respectively the president and treasurer of plaintiff’s board of directors. Huang correctly argues that neither witness established that the records on which they relied to prove damages were plaintiff’s business records (see CPLR 4518; People v. Kennedy, 68 NY2d 569 [1986]). Nonetheless, the court was entitled to credit the testimony each witness gave concerning matters about which they had personal knowledge (see Tafari v. Fisher, 94 AD3d 1324, 1325 [3d Dept 2012], lv denied 19 NY3d 807 [2012]; People v. Baier, 73 AD2d 649, 650 [2nd Dept 1979]); Voisin v. Commercial Mut. Ins. Co., 60 App Div 139, 143 [1st Dept 1901]). Mr. Kopp testified that he was personally involved in arranging for new signage at the demised premises. He also testified that after the subtenant vacated the premises he was personally involved in hiring a contractor to make the space suitable for re-renting and a real estate broker to find a new tenant. The sublease requires the subtenant to pay these expenses, and the trial court properly found Mr. Kopp’s testimony on the amounts plaintiff actually paid for these items to be credible.Although Mr. Sharma is plaintiff’s treasurer, he did not establish any personal knowledge regarding the matters about which he testified. The monies Mr. Sharma testified were owed in lost rent were based upon an exhibit that was obviously prepared for litigation1. The trial court improperly permitted the schedule to come into evidence (see People v. Foster, 27 NY2d 47, 52 [1970]) and then improperly let Mr. Sharma testify to its contents. The court also incorrectly concluded that just because the amounts claimed owed were set forth in the plaintiff’s verified bill of particulars, Mr. Sharma could competently testify to those amounts. The function of a bill of particulars is to amplify a pleading, limit proof and prevent surprise at trial (CPLR 3041; State of New York v. Horseman’s Benevolent & Protective Assn. [N.Y. Div.], 34 AD2d 769 (1st Dept 1970]). A bill of particulars cannot be used to relieve a party of its evidentiary burden to prove the facts asserted therein (White Plains Towing Corp. v. State of New York, 187 AD2d 503 [2d Dept 1992]).With respect to the rent owed under the sublease, the record before the court established the following: the underlying sublease term was due to end June 30, 2014. The subtenant prematurely moved out June 2012. On October 25, 2012, plaintiff entered into a 15-year lease with a new tenant, Dr. Wine. Under the new lease, Dr. Wine’s rent commencement date “[is] the date which is the earlier to occur of one hundred and twenty (120) days from the Commencement Date and the date Tenant opens for business.” Although plaintiff claims that Dr. Wine did not start paying rent until March 2013 (the last date on which Dr. Wine could start paying rent under the lease), the applicable provision has a condition triggering earlier rent payments. No competent proof was adduced about when the condition precedent to the payment of rent was fulfilled or when Dr. Wine actually started paying rent. No rent ledgers or other probative documents were produced, nor could either witness competently testify about this issue. Mr. Sharma’s testimony concerning when Dr. Wine actually started paying rent was based upon what Dr. Wine had told him. Mr. Sharma’s testimony was inadmissible hearsay and insufficient to prove the underlying fact. Mr. Kopp did not provide any basis for his knowledge. The witnesses’ voluntary board positions with plaintiff corporation, without any information about their duties and/or responsibilities, did not provide the requisite basis for knowledge.The evidence adduced proved rent owed for the months of July, August, September and October 2012 in the base amount of $19,980.88 per month as reserved in the sublease, for a total of $79,923.52. The evidence also proved that for the remaining 20-month period, beginning November 2012 and ending June 30, 2014, plaintiff is entitled to additional damages in the amount of $44,888.36 representing the difference between the base rent the subtenant was required to pay under the sublease and the amount of base rent being charged Dr. Wine under the new lease.2 The damages for lost rent should be adjusted accordingly. The court, however, correctly credited Huang for the $36,000 security deposit that the subtenant had paid under the sublease.Plaintiff also failed to prove that it was entitled to additional rent based upon the real estate escalation provision in the sublease. Although the sublease entitles plaintiff to collect “additional rent” for real estate escalations, the calculation is required to be based upon a percentage of real estate taxes imposed on plaintiff, over and above a lease base year. No tax bill from any taxing authority or any other document proving the taxes actually imposed on plaintiff was ever produced at trial. In determining the amount owed for real estate escalations, the court improperly relied on Mr. Sharma’s testimony and the bill of particulars. As indicated, this proof did not provide a sufficient evidentiary basis for the monetary awards made.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
1. Plaintiff’s exhibit 16 was a schedule comparing and calculating rent differential between rent reserved in the sublease and rent reserved in the lease with the new tenant. It was not a business record prepared in any ordinary course of plaintiff’s business. Moreover it was factually incorrect in that it sought base rent for June 2012, which plaintiff had already conceded in July 1, 2012 correspondence had been paid.2. For the eight-month period November 1, 2012 through June 30, 2013, the rent differential is $15,847.04, calculated at $1980.88 per month ($19,980.88 less $18,000). For the four month period July 1, 2013 through October 31, 2013, the rent differential is $11,120.44, calculated at $2,780.11 per month ($20,780.11 less $18,000). For the eight month period November 1, 2013 through June 30, 2014, the rent differential is $17,920.88, calculated at $2240.11 per month ($20,780.11 less $18,540).By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York,Respondent, v. James Howard,Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered May 19, 2015, as amended May 19, 2016, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.The court providently exercised its discretion when it precluded defendant from cross-examining the police witnesses about a civil lawsuit he had filed against them after his arrest, in which he claimed that they used excessive force in making the instant arrest. The ruling did not deprive defendant of his right to cross-examine witnesses and present a defense (see Crane v. Kentucky, 476 US 683, 689-690 [1986]; Delaware v. Van Arsdall, 475 US 673, 678-679 [1986]). Defendant did not seek to cross-examine the officers about the underlying facts of the lawsuit (see People v. Smith, 27 NY3d 652 [2016]), which are essentially the same facts litigated at this trial, but about the lawsuit itself. Defendant has not demonstrated a “good faith basis” for the proposed cross-examination (People v. Spencer, 20 NY3d 954, 956 [2012]). The principal defense theory was that the officers’ account of this arrest was false from its inception. Defendant’s contention that the onset of the lawsuit gave the officers a new motive to create an even more fabricated version of the incident, because the officers had now acquired an incentive to insulate themselves from civil liability, is speculative and unsupported. Furthermore, any probative value would have been outweighed by the prejudicial effect of potentially misleading the jury about the significance of the lawsuit. Among other things, the jurors might not have been familiar with the effect of indemnification under General Municipal Law §50-k on the officers’ alleged “financial interest” in the case.The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations, including those relating to the injured officer’s descriptions of his level of pain (see People v. Guidice, 83 NY2d 630, 636 [1994]). The element of physical injury was satisfied by proof showing that the officer required a suture to the cut on his hand as well as pain medication, and that he experienced pain and tenderness the following two weeks, which prevented him from writing and grabbing with his thumb (see e.g. People v. Moye, 81 AD3d 408 [1st Dept 2011], lv denied 16 NY3d 861 [2011]; People v. Smith, 283 AD2d 208 [1st Dept 2001], lv denied 96 NY2d 907 [2001]; People v. Marsh, 264 AD2d 647 [1st Dept 1999], lv denied 94 NY2d 825 [1999]). The jury could have reasonably found that this cut went beyond mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 NY2d 198, 200 [1980]), and that it caused “more than slight or trivial pain” (People v. Chiddick, 8 NY3d 445, 447 [2007]). We find it unnecessary to address other forms of injury that the officer may have sustained.Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 NY2d 705, 709 [1988]; People v. Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v. Washington, 466 US 668 [1984]).We perceive no basis for directing, in the interest of justice, that defendant’s sentence be served concurrently with his sentence on his robbery conviction. Notably, we have already rejected defendant’s request for similar relief on his appeal from the robbery conviction (People v. Moye, 154 AD3d 546 [1st Dept 2017]), and we see no reason to depart from that determination.Defendant’s remaining contentions, including his challenges to the People’s summation, are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find that none of these arguments warrants reversal.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Ira Smulyan, Plaintiff-Appellant, v. New York Liquidation Bureau, et al.,Defendants-Respondents. Ira Smulyan, appellant pro se. Jackson Lewis P.C., White Plains (Michael A. Frankel of counsel), for New York Liquidation Bureau, respondent. Daren J. Rylewicz, Albany (Leslie C. Perrin of counsel), for Civil Service Employees Association, respondent. Hite & Beaumont, P.C., Albany (John H. Beaumont of counsel), for Allen C. DeMarco, respondent.Orders, Supreme Court, New York County (Shlomo Hagler, J.), entered April 19, 2016, which granted defendants’ motions to dismiss the complaint as against them, unanimously affirmed, without costs.The defamation claim against New York Liquidation Bureau (NYLB), plaintiff’s former employer, and Civil Service Employees Association (CSEA), the union of which he was formerly a member, is time-barred to the extent it is based on alleged instances of defamation that occurred before November 13, 2014 — more than one year before plaintiff commenced this action (see CPLR 215[3]). To the extent it is based on an alleged instance of defamation that occurred within the limitations period, the claim is wholly speculative (see Dillon v. City of New York, 261 AD2d 34, 38 [1st Dept 1999]). Plaintiff contends, based on nothing but conjecture, that the reason he did not receive a job offer from a third party that was considering him for employment is that the third party contacted NYLB for a reference, and NYLB defamed him.The fraud claims against NYLB and Alan C. DeMarco, the chairperson of its Performance Appraisal Appeal Board, allege collusion in connection with a 2009 grievance proceeding and plaintiff’s 2010 separation from employment. These claims were waived under the terms of a release executed by plaintiff on March 31, 2010, in connection with his separation from NYLB. The release provided that, in exchange for consideration, plaintiff released, among others, NYLB and its officers, employees and representatives “from any and all causes of action … of any nature whatsoever, whether known or unknown,” including “any claims arising out of or in connection with employment and/or termination of that employment,” and “any claims for … fraud.”The fraud claim against CSEA is based upon allegations that CSEA failed to properly represent plaintiff in 2009-10, during employee grievance and separation proceedings. This claim is duplicative of the claim for breach of the duty of fair representation, which, having been brought more than four months after plaintiff knew or should have known that the breach occurred, is untimely (CPLR 217[2][a]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Manzanet-Daniels J.P., Andrias, Kapnick, Moulton, JJ.James H. Brady, Claim No. 126067Plaintiff-Appellant, 126268 v. The New York County District Attorney’s Office, et al.,Defendants-Respondents. James H. Brady, Claimant-Appellant, v. The State of New York, et al.,Defendants-Respondents. James H. Brady, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Elizabeth N. Krasnow of counsel), for the New York County District Attorney’s Office, respondent. Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for City of New York, respondent. Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for State respondents.Order, Supreme Court, New York County (Margaret A. Chan, J.), entered November 30, 2015, which granted defendant District Attorney’s Office’s motion to dismiss the complaint, and dismissed the complaint as against the City of New York, unanimously affirmed, with costs. Order, Court of Claims (Thomas H. Scuccimarra, J.), entered February 10, 2016, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss Claim No. 126268 as against the State and the Attorney General’s Office, and dismissed Claim No. 126067 as against the State and the Attorney General’s Office, unanimously affirmed, with costs.In these actions, plaintiff/claimant, acting pro se, asserts claims under 42 USC §1983 and state law alleging that defendants’ refusal to investigate his allegations of judicial corruption constitutes gross negligence, willful misconduct, prima facie tort, negligent infliction of emotional distress, and a violation of the equal protection clause. To the extent any of these defendants can be sued at all, they are protected by absolute prosecutorial immunity, which applies to the decision whether or not to initiate a prosecution (see Imbler v. Pachtman, 424 US 409, 431 [1976]), as well to the investigative and administrative acts that are intertwined with this decision, such as the decision not to investigate a complaint (see Moore v. Dormin, 252 AD2d 421 [1st Dept 1998, Rosenberger, J., concurring], lv denied 92 NY2d 816 [1998]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, Respondent, v. Justin Merritt, Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Gregory Carro, J.), rendered October 21, 2015, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.Counsel for appellant is referred to §6606.5, Rules of the Appellate Division, First Department.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Moulton, JJ.Multibank, Inc., Plaintiff-Respondent, v. Access Global Capital LLC, et al.,Defendants-Appellants, Novel Commodities S.A., Defendant. Solomon & Cramer LLP, New York (Andrew T. Solomon of counsel), for appellants. Kaplan Rice LLP, New York (Michelle A. Rice of counsel), for respondent. Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 10, 2017, which, to the extent appealed from, denied defendants Access Global Capital LLC (Access), Global Commodities Group LLC (Global), and James Besch’s (together, defendants) motion to dismiss the breach of contract claim as against Access and Besch and the tortious interference with contract claim, unanimously affirmed, with costs.Plaintiff, a Panamanian bank, purchased a $4.9 million account receivable (A/R) from defendant Novel Commodities S.A. on Novel’s sale of beans to nonparty Cia Arrocera Covadonga S.A. de C.V. (Covadonga). The purchase was insured, at plaintiff’s insistence, and was secured by a promissory note. Defendant Access was engaged to assist Novel in procuring the insurance policies. Defendant Global was also involved in the structuring of the sale transaction. Access and Global are closely held LLCs, whose controlling principal is defendant Besch. This action was commenced after Covandoga defaulted on the A/R and plaintiff was denied insurance coverage proceeds due to the way the sale transaction was structured.Defendants failed to establish that the claims against them are time-barred. As the motion court noted, they did not provide the “substance of the foreign law relied upon” (CPLR 3016[e]) or “a printed copy of the statute or other written law” (CPLR 4511[d]). Nor did defendants provide a sufficient explanation for their contention that the breach of contract claim accrued on the dates on which the contracts were executed or that the Panamanian statute of limitations preempts the express language in one of the contracts that provided that the relevant statute of limitations would not expire until February 10, 2016, which renders the action timely.In any event, this Court declines — as did the motion court — to engage in a full analysis of the Panamanian and New York limitations periods and the accrual dates for each cause of action, in light of the express terms of a tolling agreement that, if operative, undisputedly renders plaintiff’s claims timely. Defendants contend that this tolling agreement does not apply to them. However, the circumstances surrounding its execution raise a number of issues of fact as to its applicability. For reasons that are disputed, Access did not sign the tolling agreement, but it participated in negotiating the agreement, was a named party to the agreement, and received benefits from the agreement.Defendants argue that they cannot be held liable to plaintiff for breach of contract because there was no privity of contract between them with respect to the contracts sued upon. However, the fact that the signature block for Access on the October 2010 “Finance Facility Contract” reflects that Access only “[a]cknowledged and confirmed” the contract does not compel a conclusion as a matter of law but raises an issue of fact as to Access’s obligations and whether it was bound as a party. The Finance Facility Contract refers to Access throughout, and, while Access does not make any express warranties to plaintiff in it, the contractual terms reflect that Access was responsible for procuring insurance and for ensuring compliance with the policy terms.With respect to the June 2010 administration agreement, to which Access and Novel were signatories, defendants acknowledge that privity of contract with plaintiff is not necessary to establish a breach of contract claim because plaintiff seeks recovery as a third-party beneficiary (see Aetna Health Plans v. Hanover Ins. Co., 116 AD3d 538, 539 [1st Dept 2014], affd 27 NY3d 577 [2016]). Contrary to defendants’ contention, plaintiff alleges that, like the Finance Facility Contract, the administration agreement required Access to strictly comply with the terms of the insurance policy and that the policy was procured specifically on plaintiff’s behalf. This allegation is supported by the record; the policy names plaintiff as an additional insured.Defendants argue that the complaint fails to state a cause of action for tortious interference with contract against Global. They argue primarily that Global cannot be held liable for tortious interference if it was acting on behalf of its principal, Novel, within the scope of its authority. However, the complaint alleges that Global was not acting in the best interest of its principal and received a pecuniary benefit for interfering with the principal’s contract (see e.g. Buckley v. 112 Cent. Park S., Inc., 285 App Div 331, 334 [1st Dept 1954]). The record supports plaintiff’s contention that Global was not acting in Novel’s best interest when it inserted itself into the three-legged sale transaction and that it realized that doing so could invalidate the insurance policy.We have considered defendants’ remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Anuragini Pandey, et al., Plaintiffs-Appellants, v. Paul Pierce, et al.,Defendants-Respondents. Kishner & Miller, New York (Scott Himes of counsel), for appellants. Cuttita LLP, New York (Scott A. Koltun of counsel), for respondents.Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered July 22, 2016, which denied plaintiffs’ motion for partial summary judgment on their first cause of action, alleging defendants’ breach of the lease, unanimously affirmed, with costs. Order, same court and Justice, entered March 29, 2017, which denied plaintiffs’ motion to dismiss defendants’ first counterclaim, for fraud, pursuant to CPLR 3211(a)(1), (a)(7) and CPLR 3016(b), unanimously affirmed, without costs. Plaintiffs established prima facie entitlement to partial summary judgment on their first cause of action based on the clear and unambiguous language contained in the rider to the lease, which expressly overrode any inconsistent provisions in the standard form lease (see Er-Loom Realty, LLC v. Prelosh Realty, LLC, 77 AD3d 546 [1st Dept 2010], lv denied 16 NY3d 710 [2011]; Home Fed. Sav. Bank v. Sayegh, 250 AD2d 646 [2d Dept 1998]). The rider provided that the residential lease term was for two years, and that defendants could cancel the lease during its second year upon 90 days prior written notice served personally upon the “owner” or sent to the owner by registered mail to the owner’s Singapore address. About 60 days before the first year of the lease ended, defendants verbally informed the brokers who were involved in securing the lease that they would be vacating the premises at the conclusion of the first year of the lease. Defendants vacated the premises at the end of the first year and paid all rental obligations that were due up to that point. Plaintiffs seek to recover, inter alia, approximately five months of unpaid rent from defendants for the period the condominium unit remained unoccupied, plus the shortfall in rent for the remaining seven months of the second lease term where the premises was relet at a lower rental rate to secure a replacement tenant.However, defendants established that triable factual issues exist as to whether the 2013 lease was void or voidable because it was executed only by the plaintiff husband, as “owner,” despite the fact that he had transferred his joint interest in the condominium to his wife in 2005, and the wife (also a plaintiff herein) became the sole owner of the premises at that time. There is no evidence in the record to show that the defendants, at the relevant times during the lease execution and defendants’ occupation of the unit, were aware of the wife, let alone of her legal interest in the condominium unit. The plaintiff husband, at all relevant times, held himself out as the true owner of the unit, submitted documentation to the condominium board for lease approval and had collected the checks for the rent and security deposit in his own name. At no time did plaintiff husband indicate he was acting as an agent on behalf of his wife during the lease. Those facts raise triable issues regarding the plaintiff husband’s ability to independently enforce the lease terms, inasmuch as he has not shown an ownership interest in the unit (as he so claimed in the lease) and issues also exist whether he acted in the capacity of agent on behalf of his wife during the transaction at issue. As for the plaintiff wife, she was not a signatory to the lease and cannot enforce its terms.The aforementioned facts, and reasonable inferences to be drawn therefrom, support defendants’ first counterclaim, which alleges a viable cause of action for fraud connected with plaintiff husband’s misrepresentations in the lease as the condominium owner, as well as his failure to return a security deposit that he was to hold in escrow and that he has not demonstrated a lawful right to retain (see generally Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Kaufman v. Cohen, 307 AD2d 113 [1st Dept 2003]). To the extent plaintiffs argue that justifiable reliance upon the husband’s alleged misrepresentations, as owner, could not be claimed since such information can be readily gleaned through an Internet search, we find that given the present record, no facts have been cited as would have reasonably alerted defendants to question the husband’s ownership claim, particularly given the plaintiffs’ broker’s conduct, which buttressed the husband’s ownership claim (see Port Parties, Ltd. v. ENK Intl. LLC, 84 AD3d 685 [1st Dept 2011]; Cervera v. Bressler, 126 AD3d 924 [2d Dept 2015]).We have considered plaintiffs’ remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, Respondent, v. Sassony Bryant,Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Eve Kessler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered November 10, 2015), convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of nine years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the prison component of the sentence to seven years, and otherwise affirmed.We find the sentence excessive to the extent indicated.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, 3493N/11Respondent, v. Salvador Fernandez, Defendant-Appellant.Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.Salvador Fernandez, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.Judgments, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered February 16, 2014, 2014, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first and third degrees, criminally using drug paraphernalia in the second degree, money laundering in the second degree (two counts) and bail jumping in the first degree, and sentencing him to an aggregate term of 8 to 21 years, unanimously affirmed. Defendant’s claim that his counsel rendered ineffective assistance with regard to the suppression proceedings in this case is unreviewable on direct appeal because it involves matters that are not fully explained by the record (see People v. Carver, 27 NY3d 418, 420-421 [2016]; People v. Rivera, 71 NY2d 705, 709 [1988]; People v. Love, 57 NY2d 998 [1982]). The Court of Appeals has observed that an attorney’s failure to pursue a particular suppression issue may be explained by, among other things, the attorney’s recognition that success would be a remote possibility (see People v. Gray, 27 NY3d 78, 82 [2016]). The attorney’s analysis would not necessarily be reflected in an unexpanded record. Here, the existing record is insufficient to establish that any of counsel’s alleged deficiencies in handling potential suppression issues was a product of his misunderstanding of the law. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.As an alternative holding, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713–714 [1998]; Strickland v. Washington, 466 US 668 [1984]). Defendant has not shown that any of counsel’s alleged deficiencies fell below an objective standard of reasonableness, or that they deprived defendant of a fair trial or affected the outcome of the case.Upon our in camera review of sealed materials, we find that there was probable cause for defendant’s arrest.Defendant’s legal sufficiency claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007]). There is no basis for disturbing the jury’s credibility determinations. The evidence supported the conclusion that defendant conducted a transaction within the meaning of the money laundering statute. Defendant also failed to preserve his claim that a court file admitted into evidence in support of the bail jumping charge did not qualify as a business record, and we decline to review it in the interest of justice. As an alternative holding, we find that the file was correctly admitted (see CPLR 4518).We have considered and rejected defendant’s pro se claims.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Ruby Nieves, Plaintiff-Respondent, v. The Trustees of Columbia University in the City of New York, et al.,Defendants-Appellants. Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for appellants. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 9, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for partial summary judgment on the issue of liability on her Labor Law §240(1) claim, unanimously reversed, on the law, without costs, and the motion denied.Triable issues of fact as to how the accident occurred warrant the denial of plaintiff’s motion. Plaintiff testified that she was injured when, while standing on a scaffold and constructing a wall, she fell from the scaffold to another platform several feet below. However, defendants submitted evidence showing that she never fell from the scaffold. Defendants submitted an affidavit from plaintiff’s foreman in which he stated that when he responded to the accident scene, he found plaintiff sitting on the scaffold platform on which she had been working and she had to be carried down (see Perez v. Folio House, Inc., 123 AD3d 519 [1st Dept 2014]). Furthermore, the accident reports also state that following the accident, plaintiff was found sitting on top of the scaffold (see Buckley v. J.A. Jones/GMO, 38 AD3d 461, 463 [1st Dept 2007]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.International Brain Research Foundation, Inc., Plaintiff-Appellant, v. John A. Cavalier, et al., Defendants-Respondents. Gregory A. Sioris, New York, for appellant. Cozen O’Conner, New York (Martin S. Bloor of counsel), for respondents.Order, Supreme Court, New York County (Kern, J.), entered on or about May 2, 2016, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3126, and denied plaintiff’s cross motion for sanctions pursuant to 22 NYCRR 130-1.1, unanimously affirmed, with costs.Defendants demonstrated that, despite their repeated requests, plaintiff failed to produce responsive, relevant documents, many of which were favorable to defendants, as was discovered when they were provided to defendants by a third party. This failure to disclose is sufficient to support an inference of willfulness (see Henderson-Jones v. City of New York, 87 AD3d 498, 504 [1st Dept 2011]; DiDomenico v. C & S Aeromatik Supplies, 252 AD2d 41, 52 [2d Dept 1998]; CPLR 3126[3]).Plaintiff failed to proffer an excuse for its failure to disclose (see Sage Realty Corp. v. Proskauer Rose, 275 AD2d 11, 18 [1st Dept 2000], lv dismissed 96 NY2d 937 [2001]). Its claim that a former employee stole the subject documents and deleted them from its servers is not credible. However, even if this claim were true, it would be unavailing, since plaintiff had failed to issue a litigation hold or take precautions to preserve the documents before the date of the alleged theft, which was well after the commencement of litigation, and failed to notify defendants upon discovery of the alleged theft.The fact that defendants ultimately obtained these documents from a third party does not diminish plaintiff’s culpability. Had the third party not come forward, defendants would never have known these documents existed. Moreover, it is impossible to know whether there are additional relevant documents that still have not been turned over.Contrary to its contention, plaintiff received sufficient notice and opportunity to be heard before the complaint was dismissed. Defendants made a motion to dismiss, which plaintiff had ample opportunity to oppose.Defendants also complied with the procedural requirements set forth in both the trial court and the local rules.Plaintiff’s cross motion for sanctions was properly denied, since there is no evidence in the record that defendants or their counsel knew that the documents provided by the third party were “stolen,” if this claim is even true.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Rubinald Pronk, Plaintiff-Respondent, v. The Standard Hotel a/k/a the Standard Highline Hotel, et al.,Defendants-Appellants. Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York (Christopher M. Yapchanyk of counsel), for appellants. Lewis Johs Avallone Aviles, LLP, Islandia (Michael T. Colavecchio of counsel), for respondent.Order, Supreme Court, New York County (Kern, J.), entered November 18, 2016, which, upon reargument, denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.Plaintiff cut his left foot on a glass votive candleholder while entering a spa pool in the “Le Bain Club,” which was owned by defendants the Standard Hotel a/k/a the Standard Highline Hotel and Andre Balazs Properties, and managed by defendant Hotels AB, LLC. There are triable issues of fact as to whether defendants breached their duty to maintain the premises in a reasonably safe condition by placing glass candleholders on tables in close proximity to the spa pool, where people could be expected to be walking barefoot, and whether that breach proximately caused plaintiff’s injuries (see Boderick v. R.Y. Mgt. Co., Inc., 71 AD3d 144, 147 [1st Dept 2009]).Additionally, defendants never met their initial burden to show that they lacked notice. In particular, defendants failed to show that they lacked actual notice of glass in the spa pool, because none of their witnesses testified or averred that they never received any complaints about the area before the accident (see O’Connor v. Restani Constr. Corp., 137 AD3d 672, 673 [1st Dept 2016]). Defendants failed to show that they lacked constructive notice, because their employee who was responsible for checking the spa pool averred that she did not check the pool for about five hours before the accident (see id.; see also Jahn v. SH Entertainment, LLC, 117 AD3d 473, 473 [1st Dept 2014]). Given defendants’ failure to meet their initial burden, the burden never shifted to plaintiff (see Sabalza v. Salgado, 85 AD3d 436, 438 [1st Dept 2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, Respondent, v. Wakasuyi Tshimanga,Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Judgment, Supreme Court, New York County (Anthony Ferrara, J.), rendered August 21, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Scott Miller, et al., Plaintiffs-Respondents, v. 177 Ninth Avenue Condominium, et al.,Defendants-Appellants, Chelsea Enclave Owners Corp., et al.,Defendants. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for appellants. Slater, Sgarlato & Cappello, P.C., Staten Island (Robert A. Sgarlato of counsel), for respondents.Order, Supreme Court, New York County (Ellen M. Coin, J.), entered August 24, 2017, which, insofar as appealed from as limited by the briefs, granted plaintiffs’ cross motion for summary judgment as to liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs. Plaintiffs established that the accident was proximately caused by the undisputed absence of safety devices affording adequate protection against the elevation-related risks that the injured plaintiff faced as he and another laborer hoisted a 300-pound laundry bin to empty the debris within it into a dumpster (see Harris v. City of New York, 83 AD3d 104, 109-110 [1st Dept 2011], citing Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). In light of the weight of the bin and the significant force it was capable of generating over the course of its five- to seven-foot fall, the height differential is not de minimis (see Runner, 13 NY3d at 605; Jordan v. City of New York, 126 AD3d 619 [1st Dept 2015]).We have considered defendants’ remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, Ind. 3159N/15Respondent, v. Julio Serrano, Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Natalie Rea of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered November 10, 2015, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of four years, unanimously affirmed.Defendant made a valid waiver of his right to appeal (see People v. Bryant, 28 NY3d 1094, 1096 [2016]; People v. Lopez, 6 NY3d 248 [2006]).Regardless of the validity of defendant’s waiver of the right to appeal, we perceive no basis for reducing the sentence, or remanding for resentencing. Defendant did not preserve his contention that his presentence report was deficient, or effectively a nullity, because he was not interviewed (see People v. Medero, 155 AD3d 469 [1st Dept 2017]; People v. Pinkston, 138 AD3d 431 [1st Dept 2016], lv denied 27 NY3d 1137 [2016], and we decline to review it in the interest of justice. As an alternative holding, we find defendant’s claim unavailing, because he received the sentence he was promised, he showed no inclination to seek even greater leniency, and had he wished to be interviewed, he could have requested an adjournment for such an interview instead of agreeing, through counsel, to proceed to sentencing without one (see People v. Rosa, 150 AD3d 442 [1st Dept 2017], lv denied 29 NY3d 1094 [2017]; People v. Davis, 145 AD3d 623 [1st Dept 2016], lv denied 28 NY3d 1183 [2017]; Pinkston, 138 AD3d at 432). This was not a case where no presentence report had been prepared at all (see People v. Andujar, 110 AD3d 606, 607 [1st Dept 1985]), and we reject defendant’s argument that the report here was so deficient as to be a nullity. Moreover, “there is no statutory requirement that a defendant be interviewed” (Medero, 155 AD3d at 469).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.The People of the State of New York, Respondent, v. David Cepeda,Defendant-Appellant. Law Office of Randall D. Unger, Bayside (Randall D. Unger of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at suppression hearing; A. Kirke Bartley, Jr., J. at jury trial and sentencing), rendered November 5, 2015, as amended December 9, 2015, convicting defendant of burglary in the first degree and robbery in the first and second degrees, and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed.The court properly denied defendant’s motion to suppress physical evidence and his statement to police. Probable cause for defendant’s arrest resulted from the totality of the circumstances, most notably the fact that the police found defendant hiding under garbage in a dumpster, in very close spatial and temporal proximity to a reported crime from which the suspects had fled (see generally People v. Shulman, 6 NY3d 1, 26 [2005]). Even without a description of the suspects, the only reasonable inference, from all the information known to the police, was that defendant was one of the participants (see People v. Santos, 41 AD3d 324, 326 [1st Dept 2007], lv denied 9 NY3d 926 [2007]).The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007]). Moreover, the evidence of defendant’s guilt was overwhelming. There is no basis for disturbing the jury’s credibility determinations. In addition to defendant’s spontaneous and highly incriminating statement to the police, there was extensive circumstantial evidence, including cell phone evidence and conduct displaying consciousness of guilt.The trial court providently exercised its discretion in admitting into evidence a handgun recovered near the crime scene, about 13 hours later (see e.g. People v. Sosa, 255 AD2d 236 [1st Dept 1998], lv denied 93 NY2d 979 [1999]). The pistol met the description of a weapon used in the crime, and it was found on a nearby rooftop under circumstances suggesting that one of the participants may have left it there.The court also providently exercised its discretion in precluding the defense from cross-examining a police witness about allegations of misconduct in a civil lawsuit filed against him and other officers involved in an allegedly false arrest, and subsequently settled by the City of New York. Defendant failed to identify “specific allegations that are relevant to the credibility of the law enforcement witness” (People v. Smith, 27 NY3d 652, 662 [2016]). There was no showing of this officer’s role in the underlying allegedly false arrest, other than signing a criminal complaint based on information received from a fellow officer. Defendant’s constitutional claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see Delaware v. Van Arsdall, 475 US 673, 678-679 [1986]).In any event, in light of the overwhelming evidence of defendant’s guilt, any error in the trial court’s rulings on the admission of the pistol into evidence and the limitation of defendant’s cross-examination was harmless (see People v. Crimmins, 36 NY2d 230, 243 [1975]).We perceive no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.Olga Shmuklyer, Plaintiff-Appellant, v. Feintuch Communications, Inc., Defendant-Respondent. Ira Daniel Tokayer, New York, for appellant. Lawrence W. Rader, New York, for respondent. Order, Supreme Court, New York County (David B. Cohen, J.), entered August 28, 2017, which granted defendant’s motion to vacate the default judgment against it, unanimously affirmed, with costs.“A defendant seeking to vacate a default under [CPLR 5015(a)] must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action” (Eugene Di Lorenzo, Inc. v. A. C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Moreover, “section 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).The court providently exercised its discretion in finding that defendant presented a reasonable excuse, based on counsel’s family crises, the particulars of which were explained in defendant’s papers, occurring at the time the answer was due. It is noteworthy too that plaintiff’s counsel, who had communicated several times with defendant’s counsel, and which communications made it clear that defense counsel was unaware of the pending default motion, chose to remain silent, thereby contributing to defendant’s default in opposing it. Additionally, contrary to plaintiff’s argument, the record does not support any finding of willful delay or neglect. Plaintiff has also waived any appellate review of defendant’s meritorious defense, by failing to make any mention of such defense until plaintiff’s reply brief (see Ginsberg v. Rudey, 280 AD2d 267 [1st Dept 2001], lv denied 96 NY2d 711 [2001]; Blech v. West Park Presbyt. Church, 102 AD3d 596, 597 [1st Dept 2013]). In any event, defendant demonstrated a sufficient a meritorious defense to the court below.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Renwick, J.P., Manzanet-Daniels, Andrias, Kapnick, Moulton, JJ.In re Hereford Insurance Company, Petitioner-Respondent, v. Virgen Vazquez, Respondent, New Rochelle Hyundai, et al., Proposed Additional Respondents, State Farm Insurance Company, Proposed Additional Respondent-Appellant. Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for appellant. Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for Hereford Insurance Company, respondent.Order, Supreme Court, Bronx County (Lizbeth González, J.), entered January 18, 2017, which, to the extent appealed from as limited by the briefs, granted petitioner Hereford Insurance Company’s application to stay arbitration pending a framed issue hearing on coverage and to add State Farm Insurance Company as an additional respondent, unanimously affirmed, without costs.Petitioner Hereford insured a vehicle that was hit in the rear by a Mercedes Benz that left the scene of the accident. After respondent Virgen Vazquez, a passenger in the Hereford vehicle, demanded uninsured motorist arbitration, Hereford commenced this proceeding seeking to stay the arbitration and add additional respondents, including State Farm and Kelly Lyons. Hereford alleged that, at the time of the accident, the Mercedes was owned by Lyons or others, and that State Farm had issued insurance policy number 596798N11 insuring the Mercedes. In opposition, State Farm neither admitted nor denied the allegations relating to coverage. In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v. Mobius Realty Holdings, LLC, 33 AD3d 380, 381-382 [1st Dept 2006]; Kelsol Diamond Co. v. Stuart Lerner, Inc., 286 AD2d 586, 587 [1st Dept 2001]; Jones v. Geoghan, 61 AD3d 638, 640 [2d Dept 2009]). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. [Russo], 199 AD2d 88 [1st Dept 1993]; see also Matter of Government Empls. Ins. Co. v. Albino, 91 AD3d 870, 871 [2d Dept 2012]).Since Hereford met its burden of showing “sufficient evidentiary facts” to establish a “genuine preliminary issue” justifying the stay, the motion court properly stayed arbitration pending a trial of the threshold issue of coverage (Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365, 366 [1st Dept 1986]; see also Matter of AIU Ins. Co. v. Cabreja, 301 AD2d 448, 449 [1st Dept 2003]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Cadman Williams, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (T. Charles Won of counsel), for respondent.Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered August 27, 2015, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 20 years, unanimously affirmed. Defendant’s challenges to the court’s justification charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The charge, viewed as a whole, conveyed the correct principles of law as applied to the particular facts, with regard to the issues of whether defendant used excessive force (see People v. Del-Debbio, 244 AD2d 195, 195 [1st Dept 1997], lv denied 91 NY2d 925 [1998]), and whether he was the initial aggressor (see People v. Valentin, 29 NY3d 57, 62 [2017]). Nothing in the charge prevented the jury from fairly assessing defendant’s justification defense under the facts presented.To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v. Washington, 466 US 668 [1984]).Defendant did not preserve his Confrontation Clause challenge to testimony by a forensic witness, based solely on test results conducted by others, that defendant’s DNA may have been on the revolver used in this homicide, and we decline to review this claim in the interest of justice. ”We note that where a defect may be readily corrected by calling additional witnesses or directing the People to do so, requiring a defendant to call the defect to the court’s attention at a time when the error complained of could readily have been corrected serves an important interest” (People v. Rios, 102 AD3d 473, 474-475 [1st Dept 2013], lv denied 20 NY3d 1103 [2013] [internal quotation marks and citation omitted]). As an alternative holding, we find that this testimony was inadmissible, but that the error was harmless (see People v. Crimmins, 36 NY2d 230 [1975]). The DNA evidence was only relevant to the issue of defendant’s identity as the person who shot the deceased. However, identity was both uncontested at trial and established by various other evidence (see e.g. People v. Lopez-Mendoza, 155 AD3d 526, 526 [1st Dept 2017]; People v. Suarez, 148 AD3d 606, 607 [1st Dept 2017], lv denied 29 NY3d 1037 [2017]).We have considered and rejected defendant’s arguments concerning low copy number and forensic statistic tool DNA evidence (see People v. Gonzalez, 155 AD3d 507 [1st Dept 2017]), and an incriminating phone call that defendant made while incarcerated (see People v. Cisse, 149 AD3d 435, 436 [1st Dept 2017], lv granted 29 NY3d 1124 [2017]). As noted, additional cumulative evidence on the uncontested issue of identity added nothing to the People’s case, so that had there been any error it would have been harmless. We find unpersuasive defendant’s suggestion that he may have chosen to concede identity and present a justification defense because of the presence of allegedly inadmissible evidence bearing on identity.We perceive no basis for reducing the sentence.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.In re Ramon Catala, Petitioner-Respondent, v. New York State Division of Housing and Community Renewal,Respondent-Appellant, Topping Ave Catch HDFC,Respondent. Mark F. Palomino, New York (Jack Kuttner of counsel), for appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Jeanne Schoenfelder of counsel), for respondent.Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about September 1, 2016, which granted the petition challenging a sua sponte determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated February 18, 2016, to revoke a final determination dated December 8, 2015, granting petitioner’s petition for administrative review, and ordered DHCR to reinstate the revoked order, unanimously reversed, on the law, without costs, the petition denied, the order to reinstate vacated, and the proceeding brought pursuant to CPLR article 78 dismissed.DHCR properly reopened petitioner tenant’s underlying proceeding challenging the rent set by the New York City Housing and Preservation Development (HPD). While DHCR had granted petitioner’s overcharge complaint, it subsequently denied the complaint of another tenant, in the same building, who had made identical claims. This irregularity in a vital matter warranted the reopening of petitioner’s overcharge proceeding, upon notice to the parties (see 9 NYCRR 2529.9; Matter of 60 E. 12th St. Tenants’ Assn. v. New York State Div. of Hous. & Community Renewal, 134 AD3d 586, 588 [1st Dept 2015], affd 28 NY3d 962 [2016]; Matter of Sherwood 34 Assoc. v. New York State Div. of Hous. & Community Renewal, 309 AD2d 529, 532 [1st Dept 2003]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.SIBA Contracting Corp., Plaintiff-Appellant, v. Stantec Inc., a/k/a Stantec Consulting Services, Inc.,Defendant-Respondent, Westchester Fire Insurance Company, Inc.,Defendant. Morrison Law Offices of Westchester, P.C., New York (Arthur Morrison of counsel), for appellant. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondent.Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 18, 2016, which granted defendant Stantec Inc.’s motion to dismiss the complaint as against it, unanimously affirmed, with costs.The motion court correctly determined that plaintiff assigned its claims to defendant Westchester Fire Insurance Company under the parties’ indemnification agreement, and accordingly has no standing to bring this action against Stantec (James McKinney & Son v. Lake Placid 1980 Olympic Games, 61 NY2d 836, 838 [1984]).We have considered plaintiff’s remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.Dorothy Jones, Plaintiff-Appellant, v. New York Presbyterian Hospital a/k/a Columbia University Medical Center, et al.,Defendants-Respondents. Pollack, Pollack Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondents.Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about August 25, 2017, which granted defendant’s motion to reduce the jury’s damages awards, and ordered a new trial on damages unless plaintiff stipulated to reduce the award for past pain and suffering from $600,000 to $150,000 and the award for future pain and suffering over a five-year period from $400,000 to $150,000, unanimously modified, on the facts, to order a new trial on damages for past pain and suffering unless plaintiff stipulates, within 30 days after entry of this order, to reduce the award for such damages to $400,000, and otherwise affirmed, without costs.As a result of defendant’s negligence, plaintiff suffered a comminuted proximal humerus fracture, which healed in a misaligned manner. The injury resulted in chronic pain and a permanent reduction in plaintiff’s range of motion and has had a significant impact on plaintiff’s quality of life, as she remains unable to care for herself.Under these circumstances, an award for past pain and suffering in excess of $400,000 deviates materially from what would be reasonable compensation (see CPLR 5501[c]), and we modify Supreme Court’s order accordingly.In light of plaintiff’s age (84 when injured and 89 at the time of trial), Supreme Court correctly determined that an award for future pain and suffering in excess of $150,000 deviates materially from what would be reasonable compensation (see Konfidan v. FF Taxi, Inc., 95 AD3d 471 [1st Dept 2012]; Elescano v. Eighth-19th Co., LLC, 17 AD3d 250 [1st Dept 2005]; Holland v. Gaden, 260 AD2d 604 [2d Dept 1999]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, SCI 2511/15Respondent, v. Mark McClennon, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered October 14, 2015, convicting defendant, upon his plea of guilty, of perjury in the first degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed. Defendant made a valid waiver of his right to appeal, which forecloses his right to challenge his sentence as excessive (see People v. Bryant, 28 NY3d 1094 [2016). Regardless of whether defendant validly waived his right to appeal, we find no basis for running his mandatory minimum sentence nunc pro tunc to May 1, 2014, which is the only relief requested on appeal. Defendant's argument that the court "reneged" on its original promise to run the sentence nunc pro tunc to the 2014 date would, if meritorious, go to the issue of voluntariness, but defendant expressly declines any vacatur of the plea. In any event, this claim is without merit because, during the course of the plea proceeding, the court and parties realized that the correct date was May 1, 2015, and defendant's plea was entered after the correction was made.We also find no basis for changing the nunc pro tunc date in the interest of justice. The May 2015 date gave defendant the proper amount of jail time credit, as the parties agreed, and applying the 2014 date would give defendant an undeserved windfall.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Derrick Reliford, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Paul A. Anderson of counsel), for respondent.An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Raymond Bruce, J.), rendered November 16, 2016, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to §606.5, Rules of the Appellate Division, First Department.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.Elena Santos, Plaintiff-Respondent, v. Drain King LLC,Defendant-Appellant-Respondent, A.R.O. Construction Corp., et al.,Defendants-Respondents-Appellants, No. 604 Fifth Avenue Restaurant, Inc., et al.,Defendants, 604 Fifth Owner, LLC,Defendant-Respondent. Appeals having been taken to this Court by the above-named appellants from an order of the Supreme Court, New York County (Paul Wooten, J.), entered on or about June 27, 2016, And said appeals having been argued by counsel for the respective parties; and due deliberation having been had thereon, and upon the stipulation of the parties hereto dated January 31, 2018, It is unanimously ordered that said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.Michael Puchades, Plaintiff-Respondent, v. Taube Management Realty LLC, et al.,Defendants-Respondents, H.J Development LLC, et al.,Defendants, Triumph Construction Corp.,Defendant-Appellant. [And Third-Party Actions] Consolidated Edison Company of New York, Fourth-Party Plaintiff-Respondent, v. Triumph Construction Corp., Fourth-Party Defendant-Appellant. Barry, McTiernan & Moore LLC, New York (Laurel A. Wedinger of counsel), for appellant. Hach & Rose, LLP, New York (Robert F. Garnsey of counsel), for Michael Puchades, respondent. Mischel & Horn, P.C., New York (Lauren Bryant of counsel), for Taube Management Realty LLC and 211-51 Property, LLC, respondents. Law Office of Nadine Rivellese, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, respondent.Order, Supreme Court, New York County (Gerald Lebovits, J.), entered January 12, 2017, which, insofar as appealed from as limited by the briefs, denied defendant and fourth-party defendant Triumph Construction Corp.’s (Triumph) motion for summary judgment dismissing the complaint, all cross claims and the fourth-party action against it, unanimously modified, on the law, to grant Triumph’s motion to the extent of dismissing the complaint and all cross claims (except the fourth-party action), as against it, and, upon a search of the record, to grant summary judgment to defendant/fourth-party plaintiff Consolidated Edison Company of New York (Con Ed) dismissing the complaint and all cross claims against it, and otherwise affirmed, without costs.Triumph met its burden of showing entitlement to summary judgment by showing that, by applying an expanding foam to fill the void between conduits which it installed and preexisting sleeves transiting the wall of the subject building, it exercised care to prevent the precise hazard of which plaintiff complains, namely, infiltration of water into the building resulting in flooding and slippery conditions. In opposition, plaintiff, via his expert, offered only conclusory speculation that the sealing foam must have failed. This is not enough to show negligence (see Villa-Capellan v. Mendoza, 135 AD3d 555, 556 [1st Dept 2016]; Murchison v. Incognoli, 5 AD3d 271, 271 [1st Dept 2004]).The record shows that, as Con Ed’s contractor, Triumph performed the excavation work which plaintiff contends led to his injury; no party claims otherwise. Thus, if Triumph is not liable for plaintiff’s injury, then Con Ed cannot be liable either (see Burke v. Hilton Resorts Corp., 85 AD3d 419, 420 [1st Dept 2011]; Whitehead v. Riethoffer Shows, 304 AD2d 754, 755 [2d Dept 2003]). Accordingly, upon our search of the record, we grant summary judgment to Con Ed to the extent indicated. We note, however, that our modification leaves in place Con Ed’s fourth-party action against Triumph for contractual indemnification and its pending motion for summary judgment.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Jose Duran,Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Marc Whiten, J.), rendered March 11, 2015, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to §6606.5, Rules of the Appellate Division, First Department.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.5669 Marilyn Hendricks, et al., Plaintiffs-Appellants, v. Transcare New York, Inc., et al., Defendants-Respondents. Law Office of Nicholas Rose, PLLC, Forest Hills (Jill B. Savedoff of counsel), for appellants. Lewis Brisbois Bisgaard & Smith LLP, New York (Meredith Drucker Nolen of counsel), for Transcare New York, Inc. and Adriana Catus, respondents. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for American United Transportation Inc. and Franklin Martinez, respondents.Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about February 10, 2017, which, insofar as appealed from as limited by the briefs, granted defendants’ motions for summary judgment dismissing plaintiffs Marilyn Hendricks and Livanessa Martinez’s complaint based on their inability to satisfy the serious injury threshold of Insurance Law §5102(d), and plaintiff Victor Rodriguez’s claim that he suffered serious injury to his right knee within the meaning of Insurance Law §5102(d), unanimously modified, on the law, to deny the motions as to Hendricks’s claims for injuries to her cervical and lumbar spine and right knee, Martinez’s claims for injuries to her cervical spine and right knee, and Rodriguez’s claim for injuries to his right knee, and otherwise affirmed, without costs.Although defendants carried their initial burden of establishing a prima facie entitlement to judgment, plaintiffs’ submissions in opposition raised triable issues as to whether they suffered serious injuries within the meaning of Insurance Law §5102(d) as a result of the subject accident, to the extent indicated. Plaintiffs’ physician submitted an affirmation opining that the subject injuries were traumatic in origin, based on his examinations, surgical observations and review of MRI films. The medical experts’ conflicting opinions on the cause and extent of these injuries raise issues of fact that must be resolved at trial (see Perl v. Meher, 18 NY3d 208, 218-219 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Roberto Roman, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent. Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered February 8, 2017, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, or were outweighed by the egregiousness of the underlying crime and defendant’s criminal history.Even without the disputed assessment of 10 points for failure to accept responsibility, defendant would remain a level three offender with a score of 125. In any event, we find that the points at issue were correctly assessed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.SCI The People of the State of New York, Respondent, v. Anonymous,Defendant-Appellant. Law Office of Murray Richman, New York (Murray Richman of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.Judgments, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered July 5, 2012, convicting defendant, upon his pleas of guilty, of criminal sale of a controlled substance in the third degree, robbery in the first degree and tampering with physical evidence, and sentencing him, as a second violent felony offender, to an aggregate term of 15 years, unanimously affirmed. Defendant’s claim that he should have received the originally-promised sentence in accordance with his plea agreement, or an evidentiary hearing on the issue of his degree of cooperation, is unpreserved because defendant neither requested a hearing nor moved to withdraw his plea before sentence was imposed (see e.g. People v. Saxon, 28 AD3d 330, 331 [1st Dept 2006], lv denied 7 NY3d 763 [2006]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court properly imposed an enhanced sentence, regardless of defendant’s level of cooperation, because evidence properly before us shows that he violated the plea agreement by undisputedly committing new crimes.We further reject defendant’s claim that his counsel’s failure to request an evidentiary hearing constituted ineffective assistance. Given defendant’s clear violation of the plea agreement, there was no factual dispute that required a hearing (see e.g. People v. Malaj, 69 AD3d 487 [1st Dept 2010], lv denied 15 NY3d 776 [2010]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.Debra Milano, as Administratrix of the Estate of Keith Mastronardi, Deceased, et al., Plaintiffs-Appellants, v. 340 East 74th Street Owners Corp., et al.,Defendants-Respondents. Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellants. Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for respondents.Order, Supreme Court, New York County (George J. Silver, J.), entered July 13, 2016, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.Decedent fell to his death through the window of his fifth floor apartment, while intoxicated. It was undisputed that decedent’s three children, all under 10 years of age, lived in the apartment, which was not equipped with window guards in violation of New York City Health Code §131.15(a)(1). Plaintiffs also contend that defendants violated 24 RCNY 12-10(g), mandating window stops on windows with window guards.Supreme Court properly concluded that defendants had no statutory or common-law duty to decedent to install window guards or stops in the apartment since the window guard regulation does not impose a duty on owners to adults injured by the failure to install the guards (see Rodriguez v. City of New York, 272 AD2d 68 [1st Dept 2000], lv dismissed in part and denied in part 95 NY2d 919 [2000]; Ramos v. 600 W. 183rd St., 155 AD2d 333 [1st Dept 1989]). Moreover, since there was no duty to install window guards to protect adults, there was similarly no duty owed to decedent to install window stops. Defendants also had no duty under Multiple Dwelling Law §78 or the common law to install window guards or stops to protect decedent, since no evidence was presented that the window or ledge was in need of repair (see Rivera v. Nelson Realty, LLC, 7 NY3d 530, 535 [2006]). Even if the window or ledge were viewed as a dangerous condition, the duty to eliminate the danger by installing guards or stops was imposed on the tenant, not the landlord, under the common law (see Ramos at 334-335). The court properly concluded that decedent’s completion of the Notice to Tenants form mandated by the City concerning the window guard requirement did not constitute a written request for a window guard. It is further noted that defendants established that it was decedent’s own action of leaning out the subject window to smoke while highly intoxicated that was the proximate cause of the accident (see e.g. Rivera v. St. Nicholas 184 Holding, LLC, 135 AD3d 496 [1st Dept 2016]), and plaintiffs failed to raise a triable issue of fact in this regard.We have considered plaintiffs’ remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Hurbert Tyler, Defendant-Appellant. Rosemary Herbert, Office of the Appellate Defender, New York (Christina A. Swarns of counsel), for appellant. Judgment, Supreme Court, Bronx County (Robert Torres, J.), rendered December 14, 2015, unanimously affirmed.Application by defendant’s counsel to withdraw as counsel is granted (see Anders v. California, 386 US 738 [1967]; People v. Saunders, 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant’s assigned counsel that there are no non-frivolous points which could be raised on this appeal.Pursuant to Criminal Procedure Law §460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order.Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.In re Empire State Beer Distributors Association, Inc., et al., Petitioners-Respondents, v. New York State Liquor Authority,Respondent-Appellant, Costco Wholesale Corporation, et al., respondents-Intervenors-Appellants.Christopher R. Riano, Albany (Mark D. Frering of counsel), for New York State Liquor Authority, appellant.Nolan & Heller, LLP, Albany (Richard L. Burstein of counsel), for Costco Wholesale Corporation and BJ’s Wholesale Club, Inc., appellants.Gerstman Schwartz & Malito, LLP, Garden City (Ian-Paul A. Poulos of counsel), for respondents.Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered October 3, 2016, granting the petition to the extent of directing respondent New York State Liquor Authority (NYSLA) to disclose unredacted copies of stipulations entered into between NYSLA and respondents-intervenors Costco Wholesale Corporation and BJ’s Wholesale Club, Inc., requested by petitioners pursuant to the Freedom of Information Law (FOIL), unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78, dismissed.NYSLA’s determination denying petitioner’s FOIL request was not “affected by an error of law” (CPLR 7803[3]; see Mulgrew v. Board of Educ. of the City School Dist. of the City of N.Y., 87 AD3d 506 [1st Dept 2011], lv denied 18 NY3d 806 [2012]). Respondents met their burden of establishing that disclosure of the redacted portions of NYSLA’s separate stipulations with the two intervenors “would cause substantial injury to the competitive position of the subject enterprise[s]” (Public Officers Law § 87[2][d]). Although NYSLA’s promise to keep the stipulations does not automatically exempt them from FOIL (see Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557, 567 [1984]), under the particular circumstances of this case, disclosing the stipulation terms at issue, would likely deter some customers from patronizing those stores, leading to economic loss (see Matter of New York State Elec. & Gas Corp. v. New York State Energy Planning Bd., 221 AD2d 121, 125 [3d Dept 1996], appeal withdrawn 89 NY2d 1031 [1997]). Contrary to petitioners’ argument, intervenors met their burden of presenting “specific, persuasive evidence that disclosure will cause [them] to suffer a competitive injury,” and did not “merelyrest on a speculative conclusion that disclosure might potentially cause harm” by leading to negative publicity (Matter of Markowitz v. Serio, 11 NY3d 43, 51 [2008]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.The People of the State of New York, Respondent, v. Jose Melenciano,Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (James Hubert, J.), rendered November 17, 2015, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.Counsel for appellant is referred to §6606.5, Rules of the Appellate Division, First Department.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.Tertiary, Inc., Plaintiff-Respondent, v. Liberty Mutual Fire Insurance Company, et al.,Defendants-Appellants.Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellants. Pillsbury Winthrop Shaw Pittman, LLP, New York (Alexander D. Hardiman of counsel), for respondent.Order, Supreme Court, New York County (Kelly O’Neill Levy, J.), entered July 19, 2016, which granted plaintiff’s motion for a default judgment and denied defendants’ motion to compel acceptance of an answer, unanimously reversed, on the law and the facts, and in the exercise of discretion, without costs, plaintiff’s motion denied, and defendants’ motion granted.Plaintiff failed to establish prima facie that it is entitled to a default judgment declaring that defendants are obligated to defend and indemnify it in a personal injury action (see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; AMEC Constr. Mgt., Inc. v. City of New York, 132 AD3d 547, 549 [1st Dept 2015]), since it has not been sued in that action (see QBE Ins. Corp. v. Adjo Contr. Corp., 121 AD3d 1064, 1080 [2d Dept 2014]; Sirignano v. Chicago Ins. Co., 192 F Supp 2d 199, 206 [SD NY 2002]).In view of defendants’ excuse for their default in answering the complaint, namely, that a clerical error prevented the matter from reaching the appropriate individuals in the companies, as well as the absence of willfulness, the fact that plaintiff has not claimed prejudice, and counsel’s prompt action upon discovering the error, we find that the motion to compel should be granted (see e.g. Interboro Ins. Co. v. Perez, 112 AD3d 483, 483 [1st Dept 2013]; Gamiel v. Sullivan & Liapakis, 254 AD2d 96 [1st Dept 1998]; Elkman v. Southgate Owners Corp., 243 AD2d 356 [1st Dept 1997]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Sweeny, Kahn, Gesmer, Singh, JJ.5678N- 5678NA Eli Cabinetry, Inc., etc., et al. Plaintiffs, v. P.C. Consulting Management Corp., et al.,Defendants-Appellants, SP 103 E 86 LLC,Defendant-Respondent, “John Doe,” etc.,Defendant. P.C. Consulting Management Corp., Plaintiff-Appellant, v. SP 103 E 86 LLC, et al.,Defendants-Respondents. Rabinowitz, Galina & Rosen, Mineola (Gayle A. Rosen of counsel), for appellants. Greenberg Traurig, LLP, New York (Michael P. Manning of counsel), for respondents.Order, Supreme Court, New York County (Michael L. Katz, J.), entered on or about January 14, 2016, as amended by order entered February 5, 2016, which, among other things, granted the motion of SP 103 E 86 LLC (defendant in both actions) and the Guarantee Company of North America-USA (defendant in the second action) and the cross motion of Eli Cabinetry, Inc. (plaintiff in the first action) to strike the answer of P.C. Consulting Management Corp. (defendant in the first action and plaintiff in the second) and Paul Gambino (defendant in the first action); granted judgment in favor of SP 103 and Eli Cabinetry on their claims against P.C. Consulting and Gambino; directed an inquest on damages, attorney’s fees and expenses; and dismissed P.C. Consulting’s complaint; and cancelled a $360,778 undertaking, unanimously affirmed, without costs. Appeal from so-ordered transcript, same court (Donna M. Mills, J.), entered December 22, 2015, unanimously dismissed, without costs.The motion court providently exercised its discretion in granting the motion and cross motion to strike the pleadings of P.C. Consulting and Paul Gambino (together, appellants) on the ground that they willfully and contumaciously failed to comply with their discovery obligations set forth in the court’s order entered July 20, 2015 (see G.M. Data Corp. v. Potato Farms, LLC, 95 AD3d 592, 593 [1st Dept 2012]; Toribio v. J.D. Posillico, Inc., 268 AD2d 394, 395 [1st Dept 2000]).We have considered appellants’ remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.By Friedman J.P, Andrias, Kapnick, Gesmer, JJ.AlbaniaBEG Ambient Sh.p.k., Plaintiff-Respondent, v. Enel S.p.A., et al.,Defendants-Appellants. Davis Polk & Wardwell LLP, New York (Antonia J. Perez-Marques of counsel), for appellants. Quinn Emanuel Urquhart & Sullivan, LLP, New York (Tai-Heng Cheng of counsel), for respondent.Order, Supreme Court, New York County (Paul Wooten, J.), entered October 22, 2014, reversed, on the law, without costs, and the motion to dismiss granted. The Clerk is directed to enter judgment accordingly.By Opinion by Friedman, J.P. All concur.Order filed.
