Appellate Division Second Department Hand Down List decided on: February 14, 2018 By Dillon, J.P.; Chambers, Cohen and Iannacci, JJ.

Maureen Caffrey, etc., res, v. North Arrow Abstract & Settlement Services, Inc. def, Eric Nelson, ap — (Index No. 102525/09)APPEAL from a judgment of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated March 13, 2015. The judgment, insofar as appealed from, upon a decision dated December 5, 2013, made after a nonjury trial, is in favor of the plaintiff and against the defendant Eric Nelson in the principal sum of $115,000.Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrera & Wolf, LLP, Brooklyn, NY (Michael A. Coscia of counsel), for appellant.Crawford, Bringslid, Vander, Neut, LLP, Staten Island, NY (Allyn J. Crawford of counsel), for respondent.DILLON, J.P.We address two related issues concerning subject matter jurisdiction that have not previously been addressed by our Court. The first is whether a court with subject matter jurisdiction, which pursuant to CPLR 325(d) has erroneously transferred an action to a lower court lacking subject matter jurisdiction to adjudicate the matter, may retransfer the action to itself after the lower court has already tried the matter and rendered a judgment. The second question is whether, upon a retransfer of the action to a court with subject matter jurisdiction pursuant to CPLR 325(b), the court may adopt the findings of fact and conclusions of law of the lower court and thereupon substitute the lower court’s judgment with its own judgment. We answer the first question in the affirmative and the second question in the negative.I. FactsThis appeal presents an unfortunate and tortured procedural history.In October 2009, the plaintiff, Maureen Caffrey, individually and as a shareholder of the defendant North Arrow Abstract & Settlement Services, Inc. (hereinafter North Arrow), commenced this shareholder derivative action in the Supreme Court, Richmond County, against North Arrow and the defendant Eric Nelson, to recover damages for, inter alia, corporate mismanagement. The complaint asserted equitable causes of action alleging misappropriation of funds, breach of fiduciary obligations, corporate waste, conversion, the failure to maintain a proper accounting, fraud, and unjust enrichment, and sought injunctive relief and a declaratory judgment. Nelson interposed an answer dated April 20, 2010, denying the material allegations of the complaint.The action was referred by the Administrative Judge of Richmond County “for assignment to a Judicial Hearing Officer/Court Attorney Referee to conduct a nonjury trial.” By order dated August 5, 2011, the Supreme Court, rather than assigning the matter to a judicial hearing officer or referee as directed, sua sponte, transferred the action pursuant to CPLR 325(d) to the Civil Court of the City of New York for trial. There was no order designating any particular judge of the Civil Court to hear the action as an Acting Justice of the Supreme Court.By order dated January 9, 2012, the Civil Court denied the parties’ respective motions for summary judgment. The order was signed By Orlando Marrazzo, Jr., as “Judge, Civil Court.”Thereafter, the action was tried without a jury in the Civil Court for 11 nonconsecutive days spanning the course of several months. In a decision dated December 5, 2013, the Civil Court found that Caffrey established her 50 percent ownership of North Arrow and that Nelson had breached obligations to her, misappropriated funds to himself, and diverted business to another entity which he owned. The Civil Court calculated Caffrey’s damages at $115,000.^* The decision was signed by Judge Marrazzo, in this instance, as “Acting Justice, Supreme Court,” which is the first time in the chronology of events that the term “Acting Justice” appears in the case. On January 17, 2014, a judgment was filed in the Civil Court, Richmond County, in favor of Caffrey and against Nelson in the principal sum of $115,000, plus statutory interest, costs, and disbursements, for a total sum of $192,995.21.Nelson appealed the Civil Court judgment to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts. Nelson argued before the Appellate Term that the judgment was void, as the Civil Court was without subject matter jurisdiction to hear the equitable causes of action alleged in Caffrey’s complaint.During the pendency of Nelson’s appeal to the Appellate Term, Caffrey moved by order to show cause in the Supreme Court, Richmond County, to retransfer the action from Civil Court to Supreme Court, pursuant to CPLR 325(b). Caffrey also requested that, upon the retransfer, the Supreme Court vacate the Civil Court judgment and enter, in its place, a Supreme Court judgment consistent with the trial decision of Judge Marrazzo.In an order entered February 25, 2015, the Supreme Court granted Caffrey’s motion, retransferred the action from the Civil Court to the Supreme Court pursuant to CPLR 325(b), and vacated the Civil Court judgment. On March 13, 2015, the Supreme Court entered the judgment appealed from, with updated statutory interest, in the total sum of $205,307.35. The Supreme Court judgment referred to Judge Marrazzo as an “Acting Justice of the Supreme Court” during the dates of the trial. In light of the entry of the Supreme Court judgment, Nelson’s appeal of the Civil Court judgment to the Appellate Term was dismissed as academic.The parties agree that the initial transfer of the action to the Civil Court for trial pursuant to CPLR 325(d) was jurisdictionally erroneous and procedurally improper. The parties dispute whether the Supreme Court had the authority to retransfer the action to itself after the Civil Court judgment had already been entered. They also dispute the authority of the Supreme Court to, in effect, adopt the findings of fact and conclusions of law of the Civil Court trial judge and to concomitantly substitute the Civil Court judgment with a Supreme Court judgment based on the same trial proceeding.II. Judicial Notice_Of Trial_Judge’s StatusThe record on appeal contains no document conferring upon Civil Court Judge Marrazzo the authority of an Acting Justice of the Supreme Court for this case. Nelson argues in his appellate brief, as he had previously argued at the Appellate Term, that the Civil Court was without subject matter jurisdiction to adjudicate the action and render judgment, since Civil Courts generally cannot hear actions sounding in equity. Nelson further argues that the trial judge did not have the authority of an Acting Justice of the Supreme Court, as he expressly issued the order dated January 9, 2012, denying the parties’ respective motions for summary judgment, as a “Judge, Civil Court.”In response, Caffrey circumvents the issue of the Civil Court’s purported jurisdictional infirmity to hear by instead arguing that any infirmity was cured by the Supreme Court’s retransfer of the action to itself under CPLR 325(b) and the subsequent entry of a Supreme Court judgment. Notably, the decision dated December 5, 2013, rendered after trial, was executed by the presiding judge as “Acting Justice, Supreme Court,” but at oral argument of this appeal, neither of the parties’ counsel could explain the presence of the Acting Justice designation.After oral argument of this appeal, this Court contacted the Office of Court Administration (hereinafter OCA) to inquire whether the authority of an Acting Justice of the Supreme Court had been conferred upon Judge Marrazzo in 2012-2014, the years when the action was tried and decided and when the Civil Court judgment was entered. OCA advised that, pursuant to an Administrative Order of the Chief Administrative Judge dated January 5, 2012, Civil Court Judge Marrazzo had, in fact, been designated as an “Acting Justice of the Supreme Court, to serve in the Supreme Court, Thirteenth Judicial District, Civil Term” (Admin Order of Chief Admin Judge of Cts AO/227/2012). The designation was administratively extended for subsequent relevant years. Thus, when Judge Marrazzo denied the parties’ motions for summary judgment on January 9, 2012, he had already been designated an Acting Justice of the Supreme Court.As a general rule, the factual review power of the Appellate Divisions is confined to the content of the record compiled before the court of original instance and does not include matter dehors the record (see CPLR 5526; Flagstar Bank, FSB v. Titus, 120 AD3d 469, 470; Brandes Meat Corp. v. Cromer, 146 AD2d 666, 667; Mi Suk Buley v. Beacon Tex-Print, 118 AD2d 630, 631; Broida v Bancroft, 103 AD2d 88, 93). However, the general rule is not inviolate, as courts may take judicial notice of a record in the same court of either the pending matter or of some other action (see Matter of Currier [Woodlawn Cemetery], 300 NY 162, 170; Matter of Khatibi v. Weill, 8 AD3d 485, 485-486; Matter of Allen v. Strough, 301 AD2d 11, 18; Ptasznik v. Schultz, 247 AD2d 197, 199; Casson v. Casson, 107 AD2d 342; Broida v. Bancroft, 103 AD2d at 93; Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 AD2d 901, 903 [Weinstein, J., concurring], affd 64 NY2d 1107; Schmidt v. Magnetic Head Corp., 97 AD2d 151, 158 n 3; Rossbach v. Rosenblum, 260 App Div 206, affd 284 NY 745; Jerome Prince, Richardson on Evidence §30 at 18 [10th ed]). Judicial notice may be taken by a court at any stage of the litigation, even on appeal (see Cooper v. Morin, 91 Misc 2d 302, 313 [Sup Ct, Monroe County], mod sub nom 64 AD2d 130, mod 49 NY2d 69; Associated Gen. Contrs. of Am., N.Y. State Ch. v. Lapardo Bros. Excavating Contrs., 43 Misc 2d 825, 826 [Sup Ct, Albany County]; 9-R511 Weinstein-Korn-Miller, NY Civ Prac CPLR ¬∂4511.01).In Ptasznik, Justice Albert Rosenblatt, writing then for the Appellate Division, Second Department, cautioned that only certain court documents are eligible for judicial notice—that “prior orders or kindred documents” may be judicially noticed, while unauthenticated or unreliable documents that happen to repose in a court’s file, such as polygraph test results, are not appropriate for judicial notice (Ptasznik v. Schultz, 247 AD2d at 199, citing Matter of Sowa v. Looney, 23 NY2d 329; see Matter of Allcity Ins. Co. [Kondak], 66 AD2d 531, 533; People v. Singleton, 36 AD2d 725; People ex rel. Bloom v. Collins, 277 App Div 21, 23, affd 302 NY 603; cf. Sleasman v. Sherwood, 212 AD2d 868, 870).Nevertheless, a court should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content (see CPLR 4511[a], [b]; cf. Tirado v. Miller, 75 AD3d 153, 160). In recognizing the potential centrality and significance of any order designating the Civil Court judge as an Acting Justice of the Supreme Court for this matter, we afforded the parties to this appeal an opportunity to submit simultaneous post-argument letter briefs on the issue and have considered their responses.The determination of whether to judicially notice a court-generated document ultimately rests upon whether the document is reliable, the accuracy and veracity of which cannot be disputed. Court-generated orders from the Chief Administrative Judge, designating a jurist of one court as an acting jurist in another court, satisfy the requisite reliability, accuracy, and veracity as to be uncontestable for judicial notice. Consequently, in rendering our decision on this appeal, we recognize that as of January 5, 2012, Judge Marrazzo was designated as an Acting Justice of the Supreme Court.III. Retransfer Of_The Action_To Supreme_CourtNelson argues that, since the Civil Court had concluded the action by the filing of a final judgment, there was no longer any action actually pending for retransfer to the Supreme Court under CPLR 325(b).The transfer of actions and proceedings between courts is addressed and permitted in article VI, §19(a) of the New York State Constitution. The mechanics of such transfers are statutorily set forth in CPLR 325. Subdivision (b) of CPLR 325 expressly provides that when a court “in which an action is pending” does not have the jurisdiction to grant the relief to which the parties are entitled, a court having such jurisdiction may remove the action to itself upon motion.Conversely, actions may be transferred from a court in which an action is pending to a lower court (see CPLR 325[d]). Where the transfer of an action to a lower court is on consent of the parties, they are bound by the monetary jurisdictional limits of the transferee court (see CPLR 325[c]; Hoboken Wood Flooring Corp. v. Fischoff, 10 Misc 3d 1065[A], 2005 NY Slip Op 52154[U] *1 [Sup Ct, Nassau County]). By contrast, where, as here, the transfer is not on consent of the parties, the transferee court may render a verdict or judgment to the extent of the monetary jurisdiction of the transferor court (see CPLR 325[d]; Delaine v. Finger Lakes Fire & Cas. Co., 23 AD3d 1143, 1145; Tobias v. New York Hosp., 279 AD2d 374; Samuels v. Cauldwell-Wingate Co., 262 AD2d 178, 179; see also 22 NYCRR 202.13[a]). Notably, the precise language of CPLR 325(d) confers upon the lower court the right to render a verdict or judgment in excess of its “monetary jurisdiction” but which, by statutory construction, does nothing to expand the lower court’s nonmonetary jurisdiction. Thus, the lower court must independently possess nonmonetary subject matter jurisdiction over the case in controversy in order to properly act upon the transfer (see Lex 33 Assoc. v. Grasso, 283 AD2d 272, 273; Doo Soon Chung v. Doo Nam Kim, 170 AD2d 232, 233; Philadelphia Indem. Ins. Co. v. Goggins-Starr, 30 Misc 3d 459, 461 [Nassau Dist Ct]; Briscoe v. White, 8 Misc 3d 1, 3 [App Term, 2d Dept]; Bess v. Fordham Rd. Stor. Partners, 195 Misc 2d 674, 676 [Sup Ct, Bronx County]; Lambs, Inc. v. Diven, 2001 NY Slip Op 40700[U] [Civ Ct, NY County]; BLF Realty Holding Corp. v. Kasher, 183 Misc 2d 953, 954 [App Term, 1st Dept]; Spinnell v. Doris L. Sassower, P.C., 155 Misc 2d 147, 150 [Civ Ct, NY County]), regardless of the amount of monetary damages that may be awarded.All of the parties in this action correctly acknowledge that in this instance, the Civil Court was without subject matter jurisdiction to entertain the plaintiff’s causes of action in equity (see NY Const, art VI, §15[b]; NY City Civ Ct Act §§201-209, 212, 213).In rare prior instances where, as here, the Supreme Court erroneously transferred an action to a Civil Court that lacked subject matter jurisdiction, this Court and other Appellate Divisions have held that a retransfer to the Supreme Court under CPLR 325(b) is appropriate (see Priel v. Linarello, 44 AD3d 835; Feierstein v. Moser, 306 AD2d 27, 28; Zuckermann v. Spector, 287 AD2d 402, 402-403; Decana, Inc. v. Ross Intl., 227 AD2d 208). Indeed, “[i]t was not the legislative intent that an action once removed to a lower court may not ever be re-transferred” (Huston v. Rao, 74 AD2d 127, 130; see Bess v. Fordham Rd. Stor. Partners, 195 Misc 2d at 676; Gordon v. Board of Educ. of City of New York, 134 Misc 2d 284, 286-287 [Civ Ct, Kings County]; see also Moran v. Regency Sav. Bank, F.S.B., 30 AD3d 237, 238). The circumstances of the retransfer that occurred here fall squarely within the enabling language of CPLR 325(b).The foregoing analysis, however, does not necessarily address the related question raised by Nelson of whether a CPLR 325(b) retransfer may occur after the lower court has entered a final judgment MATTER, since CPLR 325(b) states that an action must be pending for a court with jurisdiction to remove an action to itself from a court that lacks jurisdiction. There appears to be no reported case directly confronting this issue. Under the circumstances present here, we find that the action in the Civil Court was still pending and had not fully concluded at the time it was retransferred to the Supreme Court.The first and most basic reason the action was still pending is that the Civil Court judgment was rendered in the absence of subject matter jurisdiction. A judgment rendered by a court without subject matter jurisdiction is void as a matter of law (see Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d 200, 203; Lacks v. Lacks, 41 NY2d 71, 75; Matter of Metropolitan Transp. Auth., 32 AD3d 943, 944-945; ERA Realty Co. v. RBS Props., 185 AD2d 871, 872-873). Itfollows that if the Civil Court judgment is void, then the action was never disposed of and remained pending.A second and more nuanced reason that Caffrey’s action had not concluded by the time of its retransfer to the Supreme Court involves the appeal that had been taken to the Appellate Term. Although a judgment had been entered by the Clerk of the Civil Court on January 17, 2014, that judgment was the subject of an appeal still pending in the Appellate Term as of February 25, 2015, the date of the order by which the Supreme Court removed the Civil Court action to itself. The action may therefore be deemed an active and continuing one at the time of its retransfer to Supreme Court (cf. Hart v. General Motors Corp., 129 AD2d 179, 187 n 7).Our holding that the Civil Court action was still viable and pending in order for the Supreme Court to remove it to itself is consistent with cases determined in analogous CPLR contexts. For example, in actions involving the six-month window for re-commencing certain actions pursuant to CPLR 205(a) that would otherwise be time-barred, the Court of Appeals has held that the termination of a prior action from which the six months is measured occurs when appeals as of right are exhausted (see Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519; Lehman Bros. v. Hughes Hubbard & Reed, 92 NY2d 1014, 1016-1017) or when discretionary appellate review is granted, upon final determination of the discretionary appeal (see Joseph Francese, Inc. v. Enlarged City School Dist. of Troy, 95 NY2d 59, 64; see also Malay v. City of Syracuse, 25 NY3d 323, 325). The First Department has interpreted the meaning of the phrase “termination of the action” in connection with CPLR 203(e). That statute provides that the time the action was commenced and the time the action was terminated is not to be counted as part of the time to commence an action to recover upon a defense or counterclaim. The First Department defined “termination of the action” as including the exhaustion of discretionary appeals (Britt v. Nestor, 145 AD3d 544, 545). By analogy, the appeal of the Civil Court’s judgment meant that this action had not concluded at the time it was retransferred to the Supreme Court.Accordingly, the Supreme Court was within its discretionary authority to remove the parties’ action to itself under CPLR 325(b), notwithstanding the entry of the Civil Court judgment.IV. The Authority_Of An_Acting Supreme_Court JusticeCaffrey argues in her postargument submission that Judge Marrazzo, upon being designated an Acting Justice of the Supreme Court, possessed the jurisdiction to hear any action, anywhere, that fell within the subject matter jurisdiction of the Supreme Court, citing the New York State Constitution, article VI, §26 and People v. Correa (15 NY3d 213). By contrast, Nelson argues in his postargument submission that, since Judge Marrazzo heard the trial in Civil Court by virtue of the CPLR 325(d) transfer, the Civil Court lacked subject matter jurisdiction regardless of the fact that he had been designated an Acting Supreme Court Justice, citing Matter of Nolan v. Lungen (61 NY2d 788) and People v. McCarthy (250 NY 358). We therefore address the following question: Does the designation as an Acting Justice of the Supreme Court attach to the jurist and follow that jurist wherever he or she professionally travels, or is the designation triggered only when the jurist is assigned at the relevant time to preside over Supreme Court cases?Our State Constitution provides in article VI, §28(a), that the Chief Judge of the Court of Appeals is the chief judicial officer of the unified court system. Further, with the advice and consent of the Administrative Board comprised of the Chief Judge and the presiding justices of the four appellate divisions, the Chief Judge shall appoint a Chief Administrator of the courts (see id.). Article VI, §28(b) of the New York Constitution defines the administrative authority of the Chief Administrator as including, rather expansively, “such powers and duties as may be delegated to him or her by the chief judge” (see 22 NYCRR 80.1, 81.1[a]). The Chief Judge, upon consultation with the Administrative Board, shall establish standards and administrative policies for general application to the unified court system, which specifically include the “transfer of judges and causes among the courts” (Judiciary Law §211[1][a]). The transfer of judges by the Chief Judge, or by delegation of the authority to the Chief Administrator, has been limited only by the requirement that doing so be in accordance with the promulgated standards and administrative policies required by the Judiciary Law (see Judiciary Law §212[2][c]; Matter of Morgenthau v. Cooke, 56 NY2d 24, 31-32). Otherwise, the Chief Administrator’s powers are complete, and he or she “may employ them fully when and while and to the extent that they have been delegated to him” (Corkum v. Bartlett, 46 NY2d 424, 429).The New York Constitution, article VI, §26 permits the temporary assignment of jurists between courts, and section 26(g) specifically authorizes the assignment of an elected judge of the Civil Court to the Supreme Court in the judicial department of his or her residence. Once a judge is temporarily assigned, in the authorized manner described above, he or she acquires all of the powers, duty, and jurisdiction of the judge or justices of the court of assignment (see People v. Rodriguez y Paz, 58 NY2d 327, 337; People v. Burgos, 103 AD2d 751; Matter of Moritt v. Nadjari, 51 AD2d 754, 756).Decisional authority has recognized that the Chief Administrative Judge is vested with wide discretion when temporarily assigning jurists between courts. In People v. Correa, the Court of Appeals upheld the rules of the Chief Judge that established Integrated Domestic Violence Parts (IDV Parts), by which certain misdemeanor cases typically handled in lower criminal courts are transferred to a County Court or Supreme Court for trial with related domestic relations matters, and County Court or Supreme Court justices are designated to hear them (see id. at 229-231). Similarly, the authority of an Administrative Judge of a Judicial District to unilaterally assign 15 related complex matters to a single Justice of the Supreme Court was upheld and found not to be a violation of due process (see Bankers Trust Co. v. Braten, 101 Misc 2d 227, 231-232 [Sup Ct, NY County]). The court noted in Bankers Trust that “[o]nly the Administrative Judge, and not any single Justice sitting in Special or Trial Term, has an over-all view of the needs and requirements of the whole court, and the relative availability of individual Justices to make the necessary decision on assignment” (id. at 232). The same reasoning applies to the creation of, and judicial assignments to, specialized parts such as commercial, matrimonial, tax certiorari, medical malpractice, and criminal plea parts.Recognizing, as we do, that the Chief Administrative Judge may temporarily assign Civil Court judges to the Supreme Court, it logically follows that such discretionary designations may be subject to conditions and restrictions. Here, Administrative Order 227/2012, of which we take judicial notice, and which designated Civil Court Judge Marrazzo as an Acting Justice of the Supreme Court, was not unrestricted and open-ended, but instead was subject by its expressed terms to a crucial limitation; namely, the judge was assigned “as an Acting Justice of the Supreme Court, to serve in the Supreme Court, Thirteenth Judicial District, Civil Term” (emphasis added). Although Judge Marrazzo was not divested of his authority to function as a Civil Court judge in the Civil Court, the Administrative Order only permitted him to act in the additional capacity of Acting Justice of the Supreme Court for matters pending in the Supreme Court itself, having Supreme Court captions and index numbers. Conversely, Administrative Order 227/2012 did not address or confer Acting Supreme Court status on Judge Marrazzo to hear and adjudicate matters pending elsewhere, such as in the Civil Court. It is also beyond cavil that an Administrative Order cannot expand the subject matter jurisdiction of the Civil Court that does not otherwise exist under the State’s Constitution.We have considered, but reject, the notion that Judge Marrazzo had “in effect” self-transferred the action back to Supreme Court for trial, rendering the trial and judgment jurisdictionally valid. The decision rendered after the trial reflected the Civil Court’s index number (300061-2011) rather than the original index number of the Supreme Court (102525/09). An “in effect” retransfer at the time of trial is inconsistent with the filing of a posttrial judgment in the Civil Court, and inconsistent with Caffrey’s later motion to retransfer the action to Supreme Court, which was contested by the parties and decided by the Supreme Court on its merits.We suspect, giving the Civil Court the credit and good faith it is due, that the instant matter may have been selectively assigned to Judge Marrazzo, recognizing that the plaintiff’s complaint interposed equitable causes of action and further recognizing that Judge Marrazzo had been granted Acting Supreme Court status. Yet, given the limiting language of that designation in the Administrative Order, we cannot hold that the Administrative Order cured the subject matter jurisdictional infirmity afflicting the action as a result of its erroneous transfer to the Civil Court under CPLR 325(d). Subject matter jurisdiction is a concept that is absolute—it either exists in its entirety or it does not exist at all. A defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (see Financial Indus. Regulatory Auth., Inc. v. Fiero, 10 NY3d 12, 17; Matter of Rougeron, 17 NY2d 264, 271; Strunk v. New York State Bd. of Elections, 126 AD3d 777, 779; Matter of Hart Family, LLC v. Town of Lake George, 110 AD3d 1278, 1280; Burke v. Aspland, 56 AD3d 1001, 1003; Morrison v. Budget Rent A Car Sys., 230 AD2d 253, 260; Matter of Anthony J., 143 AD2d 668, 668-669). Similarly, defects in subject jurisdiction may never be waived (see Nash v. Port Auth. of N.Y. & N.J., 22 NY3d 220, 229; Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d at 203; Editorial Photocolor Archives v. Granger Collection, 61 NY2d 517, 523; Lacks v. Lacks, 41 NY2d at 74-75). While Judge Marrazzo, by virtue of his designation as an Acting Justice of the Supreme Court, would have been authorized to preside over the trial of this matter had it been pending in the Supreme Court, the same cannot be said for the trial in the Civil Court where the Administrative Order had no administrative or substantive relevance.Where subject matter jurisdiction is concerned, courts, including our own, may not cut corners. As a matter of both constitutional adherence and public policy, the Appellate Division must guard against courts acting outside of their subject matter jurisdiction, even if they do so unwittingly, in good faith, or in furtherance of judicial economy. Accordingly, we hold that the duties of an Acting Justice of the Supreme Court directed to matters pending in the Supreme Court operate only as to actions and proceedings pending in that particular court, and not for cases litigated elsewhere. In other words, a judge of the Civil Court with a limited Acting Supreme Court Justice designation has no authority in an action pending at the Civil Court to exceed the nonmonetary subject matter jurisdiction of that court, regardless of whatever more expansive authority he or she may possess for other assignments pending in the Supreme Court.Further, since the Civil Court was without jurisdiction to try the instant matter, rendering the trial and judgment void, its findings of fact and conclusions of law cannot as a matter of comity, res judicata, law of the case, or otherwise, be recognized by the Supreme Court upon its CPLR 325(b) removal of the action, and cannot provide a basis for the Supreme Court judgment presently on appeal.V. MiscellaneousIn light of the jurisdictional infirmities discussed, Nelson’s remaining contentions raised on appeal regarding the trial itself have been rendered academic.Accordingly, the judgment dated March 13, 2015, is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings consistent herewith.CHAMBERS, COHEN and IANNACCI, JJ., concur.ORDERED that the judgment dated March 13, 2015, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings consistent herewith.By Balkin, J.P.; Hinds-Radix, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Nicholas Rampersad, ap — (Ind. No. 938/08)Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered June 23, 2010, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence, and (2) a resentence of the same court imposed July 15, 2010. The appeals bring up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his written statement to law enforcement officials.ORDERED that the judgment and the resentence are affirmed.Contrary to the defendant’s contention, the Supreme Court properly denied suppression of a gun recovered from him and his written statement to law enforcement officials. At the suppression hearing, a police officer testified that he observed the defendant toss litter from the driver’s side of his vehicle, which was stopped, but with the motor running. This testimony, which the hearing court credited, established that the officer and his partner had probable cause to believe that the defendant was committing a traffic violation (see Vehicle and Traffic Law §1220[a]). Upon approaching the defendant’s vehicle, the officers detected the odor of burning marijuana emanating from inside. Given the information they had, the officers had discretion to direct the defendant to get out of his car, and they directed him to do so (see        People v. Patron, 141 AD3d 545, 546; People v. Sanchez, 192 AD2d 562, 563). When the officers saw the defendant fidgeting with his pants and then grabbing his pants pocket as he was getting out of the car, they had grounds for reasonable suspicion that he was armed. Accordingly, they were permitted to perform a protective pat-down search, and to remove the gun they found in his pants (see CPL 140.50[3]; People v. Batista, 88 NY2d 650, 653-654; People v. Robinson, 74 NY2d 773, 774; People v. Patron, 141 AD3d at 546; People v. Grant, 83 AD3d 862, 863). Contrary to the defendant’s contention, the testifying officer’s hearing testimony was not manifestly untrue or patently tailored to overcome constitutional objections, and there is no basis in the record upon which to disturb the hearing court’s credibility determination (see People v. McKenzie, 148 AD3d 936, 937; People v. Page, 137 AD3d 817, 817; People v. Boyd, 136 AD3d 935, 936; People v. Cruz, 131 AD3d 706).Although the Supreme Court erred in denying the defendant’s request for a missing witness charge as to two detectives who separately interviewed him, but did not testify at trial (see        People v. Hall, 18 NY3d 122, 132; People v. Gonzalez, 68 NY2d 424, 427), the error was harmless, as there was overwhelming evidence of the defendant’s guilt, the defendant received ample latitude to comment on the witnesses’ absence, and there is no significant probability that the error contributed to his conviction (see        People v. Hall, 18 NY3d at 132; People v. Fraser, 134 AD3d 734, 736; People v. Wilkins, 75 AD3d 847, 849).The defendant’s remaining contention is unpreserved for appellate review (see People v. Garay, 25 NY3d 62, 67; People v. Angelo, 88 NY2d 217, 222; People v. Settles, 28 AD3d 591, 591) and, in any event, without merit (see People v. Aponte, 28 AD3d 672, 672; People v. Platt, 21 AD3d 1124, 1124).BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of JP Morgan Chase Bank, N.A., petitioner-res; Lisa Kyle objectants-ap; Clifford Meirowitz nonparty-res — (Index No. 27940/08)Appeals from two orders of the Supreme Court, Kings County (Edgar G. Walker, J.), both dated February 27, 2015, and from stated portions of a third order of that court, also dated February 27, 2015. The first order dated February 27, 2015, in effect, denied that branch of the objectants’ motion which was for leave to reargue and renew their opposition to the prior motions of nonparty Susan Iannelli to quash subpoenas served upon her by the objectants, which, in effect, were granted in an order of that court dated October 10, 2014, to the extent of directing the objectants to pay her costs of complying with the subpoenas. The second order dated February 27, 2015, in effect, denied that branch of the objectants’ motion which was for leave to reargue and renew their opposition to the prior cross motion of nonparty Clifford Meirowitz to quash a subpoena served upon him by the objectants, which, in effect, was granted in the order dated October 10, 2014, to the extent of directing the objectants to pay his costs of complying with the subpoena. The third order dated February 27, 2015, inter alia, denied that branch of the objectants’ motion which was for the appointment of a referee or a judicial hearing officer to supervise the petitioner’s deposition.ORDERED that the appeals from so much of the first two orders dated February 27, 2015, as, in effect, denied those branches of the objectants’ motion which were for leave to reargue are dismissed, as no appeal lies from an order denying leave to reargue; and it is further,ORDERED that the first two orders dated February 27, 2015, are affirmed insofar as reviewed; and it is further,ORDERED that the third order dated February 27, 2015, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the petitioner.In this proceeding to settle a judicial account, two nonparties moved to quash subpoenas which had been served upon them by the objectants. The Supreme Court, in effect, granted those motions to the extent of directing the objectants to pay the nonparties’ costs of responding to the subpoenas. The objectants subsequently moved, inter alia, for leave to reargue and renew their opposition to the motions to quash, and for the appointment of a referee or a judicial hearing officer to supervise the petitioner’s deposition. The court, inter alia, in effect, denied those branches of the objectants’ motion in three orders dated February 27, 2015. The objectants appeal.The Supreme Court properly denied those branches of the objectants’ motion which were for leave to renew their opposition to the nonparties’ prior motions, as those branches of the motion were not based upon either new facts not offered in opposition to the prior motions that would change the prior determinations, or a change in the law that would change the prior determinations (see CPLR 2221[e]). Furthermore, the court’s determinations with regard to the petitioner’s deposition, which set reasonable terms and conditions for disclosure, were not an improvident exercise of discretion (see Mattocks v. White Motor Corp., 258 AD2d 628, 629).The objectants’ remaining contentions are without merit.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.Yonkers Lodging Partners, LLC ap, v. Selective Insurance Company of America, res, et al., def — (Index No. 52306/13)In an action, inter alia, for a judgment declaring that the defendant Selective Insurance Company of America is obligated to defend and indemnify the plaintiff Yonkers Lodging Partners, LLC, in an underlying action entitled Benitez v. Cali South West Realty Associates, L.P., pending in the Supreme Court, Dutchess County, under Index No. 4117/10, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Westchester County (Connolly, J.), dated June 21, 2015, which granted the cross motion of the defendant Selective Insurance Company of America for leave to serve and file an amended answer, denied their motion for summary judgment, in effect, declaring that the defendant Selective Insurance Company of America is obligated to defend and indemnify the plaintiff Yonkers Lodging Partners, LLC, in the underlying action, and, upon searching the record, awarded summary judgment to the defendant Selective Insurance Company of America, declared that the defendant Selective Insurance Company of America is not obligated to defend and indemnify the plaintiff Yonkers Lodging Partners, LLC, in the underlying action, and, in effect, dismissed the complaint insofar as asserted against the defendant Selective Insurance Company of America.ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof which, upon searching the record, awarded summary judgment to the defendant Selective Insurance Company of America, declared that the defendant Selective Insurance Company of America is not obligated to defend and indemnify the plaintiff Yonkers Lodging Partners, LLC, in the underlying action, and, in effect, dismissed the complaint insofar as asserted against the defendant Selective Insurance Company of America; as so modified, the order and judgment is affirmed, without costs or disbursements, and the complaint is reinstated insofar as asserted against the defendant Selective Insurance Company of America.The plaintiff Yonkers Lodging Partners, LLC (hereinafter YLP), entered into a contract with the defendant Tritec Hospitality, LLC (hereinafter Tritec), to perform construction services on YLP’s premises and the premises of the adjacent property owner, the defendant Mack-Cali South West Realty Associates, LLC (hereinafter Mack-Cali). Tritec subsequently entered into a subcontract with the defendant Lea Rome, Inc. (hereinafter Lea Rome), pursuant to which Lea Rome agreed to, among other things, perform asphalt paving for the construction project. Pursuant to the subcontract, Lea Rome agreed to indemnify and hold harmless Tritec and YLP for any claims arising out of the performance of the subcontracted work, but only to the extent caused by the negligence or omission of Lea Rome. Additionally, Lea Rome was required to procure and maintain a commercial general liability insurance policy naming YLP and Tritec as additional insureds.The defendant Selective Insurance Company of America (hereinafter Selective) issued a policy to Lea Rome which contained an exclusion for bodily injury or property damage liability assumed under a contract. However, this section further stated that “[t]his exclusion does not apply to liability for damages:… [a]ssumed in a contract or agreement that is an ‘insured contract.’” The policy’s definition of an “insured contract” included, inter alia, “[t]hat part of any other contract or agreement pertaining to your business… under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” The policy also included an endorsement entitled “Blanket Additional Insureds—Broad Form Vendors—As Required By Contract” specifying that “Who Is An Insured is amended to include as an additional insured any person or organization with whom you have agreed in writing in a contract, agreement or permit that such person or organization be added as an additional insured on your policy.”In April 2009, Carlos Benitez, and his wife suing derivatively, commenced an action against Tritec and Mack-Cali to recover damages for personal injuries he allegedly sustained while he was working at the construction site as an employee of Lea Rome. In October 2010, Tritec commenced a third-party action against Lea Rome for contractual indemnity, common-law indemnity, and contribution. In June 2011, Mack-Cali commenced a second third-party action against, among others, YLP, alleging that it had breached a contract pursuant to which it agreed to indemnify and hold Mack-Cali harmless for claims arising out of the performance of the construction work and to procure insurance.Thereafter, YLP and its insurance carrier, Citizens Insurance Company of America (hereinafter together the plaintiffs), commenced this action, inter alia, for a judgment declaring that Selective is obligated to defend and indemnify YLP in the underlying action as an additional insured and reimburse Citizen for the defense costs the plaintiffs incurred in defending the second third-party action. In its answer, Selective, among other things, admitted that YLP was an additional insured, but asserted that the contractual exclusion applied. The plaintiffs moved for summary judgment, in effect, declaring that Selective was obligated to defend and indemnify YLP in the underlying action as an additional insured. Selective cross-moved for leave to serve an amended answer to deny that YLP was an additional insured. In opposition to the plaintiffs’ motion for summary judgment, Selective argued that YLP did not qualify as an additional insured. The Supreme Court granted Selective’s cross motion for leave to serve an amended answer, denied the plaintiffs’ motion for summary judgment, and, upon searching the record, awarded summary judgment to Selective, declared that Selective was not obligated to defend and indemnify YLP in the underlying action, and, in effect, dismissed the complaint insofar as asserted against Selective.The Supreme Court providently exercised its discretion in granting Selective’s cross motion for leave to serve an amended answer. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d 673; Markowits v. Friedman, 144 AD3d 993, 995; Galanova v. Safir, 127 AD3d 686, 687). A determination whether to grant such leave is within the court’s discretion, and the exercise of that discretion will not be lightly disturbed (see Civil Serv. Empls. Assn. v. County of Nassau, 144 AD3d 1075, 1076; Lending, LLC v. Nurse, 120 AD3d 739, 741). Here, the plaintiffs failed to demonstrate that any prejudice or surprise would result from the proposed amendment, and the proposed amendment was not palpably insufficient or patently devoid of merit.Upon granting Selective’s motion for leave to serve an amended answer, the Supreme Court properly determined that YLP did not qualify as an additional insured, as there was no written agreement between it and Lea Rome pursuant to which Lea Rome agreed to procure insurance naming YLP as an additional insured (see Harco Constr., LLC v. First Mercury Ins. Co., 148 AD3d 870, 872; Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 153; Structure Tone, Inc. v. National Cas. Co., 130 AD3d 405, 406; Kel-Mar Designs, Inc. v. Harleysville Ins. Co. of N.Y., 127 AD3d 662, 663; Mayo v. Metropolitan Opera Assn., Inc., 108 AD3d 422, 425; AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc., 102 AD3d 425, 426; Linarello v. City Univ. of N.Y., 6 AD3d 192, 195). Accordingly, the court properly denied the plaintiffs’ motion for summary judgment, in effect, declaring that Selective is obligated to defend and indemnify YLP in the underlying action as an additional insured.However, the Supreme Court erred by searching the record and awarding summary judgment to Selective. Although YLP does not qualify as an additional insured, the Selective policy contains an exception to the contractual exclusion for liability assumed pursuant to an insured contract. There are triable issues of fact as to Selective’s obligations to YLP under Lea Rome’s insured contract with Tritec. Accordingly, on this record, Selective was not entitled to a declaration that it is not obligated to defend and indemnify YLP in the underlying action, or dismissal of the complaint insofar as asserted against it.The parties’ remaining contentions are without merit.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Lakisha Hurk-McLeod, plf-res, v. Slope Park Associates, LLC, defendant third-party/third third-party plaintiff-appellant-res, Young Mens Christian Association of Greater New York, defendant second third-party plaintiff-appellant-res; City of New York, third-party def; Brooklyn 9th Street CVS, Inc., second third-party defendant-respondent-ap; Mc Gowan Builders, Inc., third third-party def-res — (Index No. 3463/11)Appeals and cross appeal from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated May 27, 2015. The order, insofar as appealed from by Slope Park Associates, LLC, granted that branch of the motion of Mc Gowan Builders, Inc., which was for summary judgment dismissing the third third-party complaint. The order, insofar as cross-appealed from, denied the motion of Brooklyn 9th Street CVS, Inc., for summary judgment dismissing the second third-party complaint and all cross claims asserted against it and for conditional summary judgment on its cross claim against Slope Park Associates, LLC.ORDERED that the appeal by Young Men’s Christian Association of Greater New York is dismissed as abandoned for failure to perfect the appeal in accordance with the rules of this Court (see 22 NYCRR 670.8[c], [e]); and it is further,ORDERED that the order is affirmed insofar as appealed from by Slope Park Associates, LLC, and insofar as cross-appealed from, with one bill of costs payable by Slope Park Associates, LLC, to Mc Gowan Builders, Inc., and one bill of costs payable by Brooklyn 9th Street CVS, Inc., to Slope Park Associates, LLC.The plaintiff commenced this action against Slope Park Associates, LLC (hereinafter Slope Park), and Young Men’s Christian Association of Greater New York (hereinafter the YMCA) to recover damages for personal injuries she allegedly sustained when she fell on a portion of the sidewalk along 8th Street in Brooklyn abutting the properties of Slope Park and the YMCA. According to the plaintiff, the sidewalk was defective and there was snow and ice present along the curb line.The YMCA commenced a second third-party action against Brooklyn 9th Street CVS, Inc. (hereinafter CVS), which occupied the property owned by Slope Park, seeking common-law indemnification and contribution. CVS asserted a cross claim against Slope Park for indemnification and contribution. Slope Park commenced a third third-party action for contribution and indemnification against Mc Gowan Builders, Inc. (hereinafter Mc Gowan Builders), the contractor hired by the YMCA to construct an aquatic center on the portion of its property abutting the 8th Street sidewalk.Mc Gowan Builders moved, inter alia, for summary judgment dismissing the third third-party complaint. CVS moved for summary judgment dismissing the second third-party complaint and all cross claims asserted against it and for conditional summary judgment on its cross claim against Slope Park. The Supreme Court granted that branch of Mc Gowan Builders’ motion and denied CVS’s motion. Slope Park appeals, and CVS cross-appeals.Mc Gowan Builders established its prima facie entitlement to judgment as a matter of law dismissing the third third-party complaint. Contrary to Slope Park’s contention, Mc Gowan Builders established, prima facie, that it did not create any alleged dangerous condition or entirely displace the abutting property owners’ duty to maintain the sidewalk on or before the date of the subject accident, which would give rise to a duty of care on its part (see Torres v. 63 Perry Realty, LLC, 123 AD3d 911, 913; Roach v. AVR Realty Co., LLC, 41 AD3d 821; see generally Espinal v. Melville Snow Contrs., 98 NY2d 136, 140). In opposition, Slope Park failed to raise a triable issue of fact.CVS failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the second third-party complaint and all cross claims asserted against it. CVS failed to make a prima facie showing that it made no efforts to clear snow and ice from the sidewalk on which the plaintiff fell prior to the accident. Further, CVS failed to make a prima facie showing that any snow and ice removal efforts undertaken by it or by persons on its behalf did not exacerbate the hazardous condition which allegedly contributed to the plaintiff’s accident (see Bleich v. Metropolitan Mgt., LLC, 132 AD3d 933, 935; Forlenza v. Miglio, 130 AD3d 567, 568). Moreover, since CVS failed to make a prima facie showing that it was free from negligence in the happening of the plaintiff’s accident, CVS was not entitled to conditional summary judgment on its cross claim against Slope Park (see Dow v. Hermes Realty, LLC, 155 AD3d 824; Bleich v. Metropolitan Mgt., LLC, 132 AD3d at 935).The parties’ remaining contentions either are without merit or need not be reached in light of our determination.Accordingly, the Supreme Court properly granted that branch of Mc Gowan Builders’ motion which was for summary judgment dismissing the third third-party complaint, and properly denied CVS’s motion for summary judgment dismissing the second third-party complaint and all cross claims asserted against it and for conditional summary judgment on its cross claim against Slope Park.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Estate of Michael Reid, res, v. Irene Reid, ap — (Index No. 28888/11)Tor Jacob Worsoe, Jr., Holtsville, NY, for appellant.Fuchs & Eichen, Harrison, NY (Linda A. Eichen of counsel), for respondent.Appeal from stated portions of a judgment of divorce of the Supreme Court, Queens County (Elizabeth A. Anderson, Ct. Atty. Ref.), entered July 2, 2015. The judgment, upon an order of that court entered January 17, 2014, inter alia, sua sponte, setting aside a stipulation of settlement, and upon an amended decision of that court dated April 20, 2015, made after a nonjury trial, inter alia, equitably distributed the marital property of Michael Reid and the defendant.ORDERED that the judgment of divorce is reversed insofar as appealed from, on the law, with costs, so much of the order entered January 17, 2014, as, sua sponte, set aside the stipulation of settlement is vacated, and the stipulation of settlement is reinstated.Michael Reid (hereinafter the decedent) and Irene Reid (hereinafter the defendant) were married in 1984. In December 2011, the decedent commenced this action for a divorce and ancillary relief. On June 6, 2013, in open court, the decedent and the defendant, represented by their respective counsel, announced that they had entered into a comprehensive stipulation of settlement of all outstanding issues regarding, inter alia, the equitable distribution of the marital property (hereinafter the stipulation). After an inquiry on the grounds for divorce, the Supreme Court granted the decedent a divorce and satisfied itself that the stipulation had been knowingly, voluntarily, and intelligently entered into by both parties. The stipulation, which was executed on the same date, was duly notarized and contained specific acknowledgments that it had been read by the parties and was understood by them, that the parties had an opportunity to discuss it with counsel, and that it was not the result of fraud, duress, or undue influence.In November 2013, the decedent moved, inter alia, to reform certain provisions of the stipulation and to enforce other provisions of the stipulation. The defendant opposed the motion and cross-moved, in January 2014, to enforce the terms of the stipulation. On January 15, 2014, the parties appeared before the Supreme Court to argue their respective motions. After hearing from both sides, the court, sua sponte, and over the defendant’s objection, set aside the stipulation. The transcript was so-ordered by the court on January 17, 2014. Following a nonjury trial, the court issued a judgment of divorce. The defendant appeals from stated portions of the judgment.As an initial matter, the order entered January 17, 2014, is properly brought up for review on the appeal from the judgment of divorce (see CPLR 5501[a][1]).The defendant contends that the Supreme Court erred in, sua sponte, setting aside the stipulation. We agree. Neither the decedent nor the defendant requested that the court set aside the stipulation (see Barany v. Barany, 71 AD3d 613, 614-615; Davis v. New York City Hous. Auth., 300 AD2d 531, 532; Matter of Young v. Young, 299 AD2d 783, 784; Binensztok v. Bello, 285 AD2d 619). Moreover, stipulations of settlement are favored by the courts and not lightly cast aside. ”Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (Hallock v. State of New York, 64 NY2d 224, 230; see Davis v. New York City Hous. Auth., 300 AD2d at 532; Binensztok v. Bello, 285 AD2d 619; Joseph Crenshaw Bldrs., Inc. v. Summit Gen. Contr. Corp., 259 AD2d 595). Here, the court did not conclude that any of these grounds were present.Accordingly, the judgment of divorce must be reversed insofar as appealed from, so much of the order entered January 17, 2014, as, sua sponte, set aside the stipulation must be vacated, and the stipulation must be reinstated.In light of our determination, we do not reach the parties’ remaining contentions.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.PEOPLE, etc., res, v. Philip G. Sarner, ap — (Ind. No. 38/16)Steven A. Feldman, Uniondale, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Brian Witthuhn of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), rendered February 4, 2016, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the record demonstrates that his waiver of the right to appeal was knowing, intelligent, and voluntary (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337; People v. Lopez, 6 NY3d 248). The defendant’s valid waiver of the right to appeal precludes review of his claim that the Supreme Court abused its discretion in denying his request at sentencing to direct his enrollment in a comprehensive alcohol and substance abuse treatment program (see Penal Law §60.04[6]; People v. Nasworthy, 67 AD3d 1201, 1202).The defendant’s remaining contention does not require reversal.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Dillon, J.P.; Leventhal, Hinds-Radix and Lasalle, JJ.HSBC Bank USA, National Association, as trustee for MHL 2007-2, res, v. Samuel Ehrenthal appellants def — (Index No. 9308/09)Appeal from an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), entered January 26, 2016. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Samuel Ehrenthal and Frimet Ehrenthal, to dismiss the affirmative defenses of those defendants, in effect, for leave to amend the caption to name HSBC Bank USA National Association, as trustee for MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage Pass-Through Certificates, as the plaintiff, and for an order of reference, and denied the cross motion of the defendants Samuel Ehrenthal and Frimet Ehrenthal for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Samuel Ehrenthal and Frimet Ehrenthal, to dismiss the affirmative defenses of those defendants, in effect, for leave to amend the caption to name HSBC Bank USA, National Association, as trustee for MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage Pass-Through Certificates, as the plaintiff, and for an order of reference, and substituting therefor a provision denying those branches of the plaintiff’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.In June 2007, the defendant Samuel Ehrenthal borrowed $800,000 from 25 MortgageIT, Inc. (hereinafter MortgageIt). The note and mortgage on the subject property were delivered to Mortgage Electronic Registration Systems, Inc., as nominee for MortgageIT. The mortgage was subsequently securitized and assigned to HSBC Bank USA, National Association, as trustee for MHL 2007-2 (hereinafter the plaintiff).In August 2009, the plaintiff commenced this mortgage foreclosure action against, among others, Samuel Ehrenthal and his wife Frimet Ehrenthal (hereinafter together the defendants). After the defendants served an answer raising the issue of standing to sue, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to dismiss the defendants’ affirmative defenses, in effect, for leave to amend the caption to name HSBC Bank USA, National Association, as trustee for MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2, Mortgage Pass-Through Certificates (hereinafter HSBC), as the plaintiff, and for an order of reference. The defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. The Supreme Court granted the motion and denied the cross motion.Where, as here, a plaintiff’s standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see Flagstar Bank, FSB v. Mendoza, 139 AD3d 898, 899; LaSalle Bank, N.A. v. Zaks, 138 AD3d 788; Aurora Loan Servs., LLC v. Mercius, 138 AD3d 650, 651). In a foreclosure action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; One W. Bank, FSB v. Albanese, 139 AD3d 831, 832; Aurora Loan Servs., LLC v. Mercius, 138 AD3d at 651).Here, the plaintiff failed to meet its prima facie burden of establishing that it had standing to commence the action. In support of its motion, the plaintiff relied upon the affidavit of Mahilet Ayalew, a vice president of the loan servicer, who stated that HSBC had possession of the note prior to and at the time of the commencement of the action. In the absence of an allegation and evidence that HSBC was the same entity as the plaintiff, that affidavit was insufficient to establish standing.Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants, to dismiss the defendants’ affirmative defenses, in effect, for leave to amend the caption to name HSBC as the plaintiff, and for an order of reference.The Supreme Court properly denied the defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. ”[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied” (Deutsche Bank Trust Co. Ams. v. Vitellas, 131 AD3d 52, 59-60; see Aurora Loan Servs., LLC v. Mercius, 138 AD3d at 652). Here, the defendants, who merely relied upon the plaintiff’s submissions, failed to make a prima facie showing that the plaintiff lacked standing (see Aurora Loan Servs., LLC v. Mercius, 138 AD3d at 652; Deutsche Bank Trust Co. Ams. v. Vitellas, 131 AD3d at 59-60).DILLON, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Diana Faulknor, res, v. Ginas Trucking, Inc., et al., appellants def — (Index No. 62389/15)In a consolidated action to recover damages for personal injuries, the defendants Gina’s Trucking, Inc., and Rory J. Jenkins appeal from an order of the Supreme Court, Westchester County (Wood, J.), dated March 7, 2016, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Gina’s Trucking, Inc., and Rory J. Jenkins for summary judgment dismissing the complaint insofar as asserted against them is granted.On July 7, 2015, the plaintiff allegedly was walking on a sidewalk in an easterly direction in Westchester. After she stepped off the sidewalk onto the street, her right foot came into contact with the rear of a tractor-trailer that was making a right turn. According to the defendant Rory J. Jenkins, the operator of the tractor, he had completed approximately 85 percent of the turn at the time of the contact with the plaintiff. The trailer attached to the tractor was 48 feet long. The plaintiff allegedly did not see the tractor-trailer prior to the impact. The plaintiff allegedly sustained personal injuries as a result of the incident, and she commenced this action against, among others, the defendants Gina’s Trucking, Inc., the owner of the tractor-trailer, and Jenkins (hereinafter together the appellants). The appellants moved for summary judgment dismissing the complaint insofar as asserted against them, and the Supreme Court denied the motion.The appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was the sole proximate cause of the accident (see Stern v. Schwartz, 65 AD3d 1130; Rogers v. City of New York, 52 AD3d 589, 590; Carrasco v. Monteforte, 266 AD2d 330, 331). The evidence submitted in support of the appellants’ motion established that the plaintiff failed to see what was there to be seen and walked into the path of the rear of the tractor-trailer. In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court should have granted the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Priscilla Hall, J.P.; Roman, Sgroi and Hinds-Radix, JJ.MATTER of State of New York, res, v. Richard S. (Anonymous), ap — (Index No. 180/12)Appeal from an order of the Supreme Court, Queens County (Kenneth C. Holder, J.), entered August 19, 2014. The order, upon a finding, made after a jury trial, that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law §10.03(i), and upon a determination, made after a dispositional hearing, that he is a dangerous sex offender requiring civil confinement, granted the petition pursuant to Mental Hygiene Law article 10 and directed that the appellant be committed to a secure treatment facility for care and treatment. By decision and order dated November 12, 2015, this Court remitted the matter to the Supreme Court, Queens County, for the purpose of conducting a Frye hearing (see Frye v. United States, 293 F 1013 [DC Cir]) to resolve the question of whether the diagnosis of paraphilia not otherwise specified (nonconsent) has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible, and thereafter to report to this Court, and held the appeal in abeyance in the interim (see Matter of State of New York v. Richard S., 133 AD3d 672). The Supreme Court, Queens County, has now filed its report.ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of mental abnormality and, if necessary, a new dispositional hearing.The State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant, a convicted sex offender. Prior to trial, a psychologist evaluated the appellant at the State’s request and issued a report in which he diagnosed the appellant as suffering from paraphilia not otherwise specified (nonconsent) (hereinafter paraphilia NOS [nonconsent]). The appellant moved for a Frye hearing (see Frye v. United States, 293 F 1013 [DC Cir]) to determine whether the diagnosis of paraphilia NOS (nonconsent) has achieved general acceptance in the psychiatric and psychological communities. The Supreme Court denied the motion. After a jury trial at which evidence of the paraphilia NOS (nonconsent) diagnosis was admitted, the appellant was found to suffer from a “mental abnormality” as that phrase is defined in Mental Hygiene Law §10.03(i). At the conclusion of a dispositional hearing, the court determined that the appellant is currently a dangerous sex offender requiring civil confinement. The appellant appeals from an order granting the petition and directing that he be committed to a secure treatment facility for care and treatment.By decision and order dated November 12, 2015, this Court remitted the matter to the Supreme Court, Queens County, for the purpose of conducting a Frye hearing to resolve the question of whether the diagnosis of paraphilia NOS (nonconsent) has achieved general acceptance in the psychiatric and psychological communities, and thereafter to report to this Court, and held the appeal in abeyance in the interim (see Matter of State of New York v. Richard S., 133 AD3d 672). The Supreme Court has now filed its report, in which it found that the State failed to establish that the diagnosis of paraphilia NOS (nonconsent) is generally accepted in the psychiatric and psychological communities. The parties submitted supplemental briefing to this Court regarding, inter alia, the correctness of the Supreme Court’s Frye determination.The long-recognized rule of Frye is that “expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field” (People v. Wesley, 83 NY2d 417, 422, quoting Frye v. United States, 293 F at 1014). In Frye, the court stated: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (Frye v. United States, 293 F at 1014 [emphasis added]). ”The burden of proving general acceptance rests upon the party offering the disputed expert testimony” (Ratner v. McNeil-PPC, Inc., 91 AD3d 63, 71). ”The general acceptance of novel scientific evidence such as a psychological syndrome may be established through texts and scholarly articles on the subject, expert testimony, or court opinions finding the evidence generally accepted in the relevant scientific community” (People v. Wernick, 215 AD2d 50, 52, affd 89 NY2d 111).Here, the record supports the Supreme Court’s conclusion that the State failed to establish that the diagnosis of paraphilia NOS (nonconsent) is generally accepted in the psychiatric and psychological communities. The evidence at the Frye hearing showed that there was no clear definition or criteria for the diagnosis, the diagnosis could not be reliably distinguished from other motivations for rape, the articles offered in support of the diagnosis did not reflect a wide, significant, or well-rounded body of research supporting the validity of the diagnosis, and the diagnosis was repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) or in the DSM appendix (see Matter of State of New York v. Donald DD., 24 NY3d 174, 186-187; Matter of State of New York v. Kareem M., 51 Misc 3d 1205[A], 2016 NY Slip Op 50427[U] [Sup Ct, NY County]; Matter of State of New York v. Jason C., 51 Misc 3d 553 [Sup Ct, Kings County]). Thus, evidence of the paraphilia NOS (nonconsent) diagnosis should not have been admitted at trial. Since the error was not harmless, the matter must be remitted to the Supreme Court, Queens County, for a new trial on the issue of mental abnormality, excluding evidence of the paraphilia NOS (nonconsent) diagnosis, and, if necessary, a new dispositional hearing.HALL, J.P., ROMAN, SGROI and HINDS-RADIX, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.MATTER of Anthony Mogilski, ap, v. Westbury Union Free School District res — (Index No. 5215/16)Appeal from a judgment of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered December 7, 2016. The judgment, in effect, denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to, among other things, reinstate the petitioner to his position of Supervisor of School Facilities and Operations for the Westbury Union Free School District.ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and the respondents are directed to reinstate the petitioner to his position of Supervisor of School Facilities and Operations for the Westbury Union Free School District with back pay and all benefits of his employment.On September 21, 2015, the petitioner was hired by the respondents, Westbury Union Free School District, Board of Education of the Westbury Union Free School District (hereinafter the Board of Education), and Mary A. Lagnado, Superintendent of Schools of the Westbury Union Free School District (hereinafter collectively the District), as a Supervisor of School Facilities and Operations. The position came with a 26-week probationary period which was scheduled to end on March 21, 2016. On February 2, 2016, the District informed the petitioner that his probationary period was being extended for 12 days due to school closings for holidays, which, according to a letter sent by Lagnado to the petitioner, extended the probationary term until April 6, 2016. The District’s request for the extension was approved by the Nassau County Civil Service Commission (hereinafter the Commission). On March 28, 2016, the Board of Education adopted a resolution terminating the petitioner’s employment “effective the last day of his probationary period, which is March 29, 2016.” A termination of employment letter was delivered to the petitioner on March 29, 2016. According to an affidavit by Lagnado, that same day, the District was informed by the Commission that it had incorrectly authorized the extension for 12 days when the extension should have been 6 days, thereby making the petitioner’s probationary term end on March 29, 2016.The petitioner commenced this proceeding pursuant to CPLR article 78 to reinstate him to his position, alleging that the District exceeded its jurisdiction, and acted arbitrarily and capriciously and irrationally in extending his probation. Specifically, the petitioner asserted that Rule XIX.2 of the Commission, which requires a probationer’s term to be extended for authorized or unauthorized absences on “workdays,” does not authorize an extension for school closings on holidays. The petitioner also contended that the District failed to give him at least one week notice of his termination as required by Rule XIX.6 of the Commission. The District answered the petition and contended that the 12-day extension was proper and necessary to give it a full 26-week observation of the petitioner’s work. The District noted that the extension was approved by the Commission. The District also contended that it “substantially complied” with the one-week notice requirement because it was operating under the belief that the petitioner’s probation ended April 6, 2016, until the Commission notified it of its error.The Supreme Court denied the petition and dismissed the proceeding upon determining it was not capricious, unreasonable, or an abuse of discretion for the District to treat “holiday” school closings the same as sick leave, vacation, and jury duty for purposes of extending a probationer’s term. The court also determined, in effect, that the District substantially complied with the one-week notice requirement because the petitioner previously had been notified orally and in writing of his work deficiencies and neither alleged nor established prejudice as a result of the short notice. The petitioner appeals, and we reverse.The plain language of Rule XIX.2 indicates that it is proper to extend a probationary term by the number of “workdays” an employee is “absent” or “workdays” an employee missed due to sick leave, vacation, or jury duty (see Matter of Murray v. New York State Dept. of Mental Health, 151 AD2d 763; Matter of Schwartz v. Cuomo, 111 AD2d 759; Matter of Mathis v. New York State Dept. of Correctional Servs., 81 AD3d 1435; Matter of Fischer v. Hongisto, 75 AD2d 973). Indeed, this Court previously has stated that it is rational to interpret “workdays” to include “all of those days when the petitioner’s presence would normally have been required” (Matter of Sheffield v. Howe, 223 AD2d 544, 545). A school closing due to a holiday is not a day when the petitioner’s presence would normally have been required. Accordingly, the District’s interpretation of Rule XIX.2 is irrational and the extension of the petitioner’s probationary period was improper.Further, contrary to the District’s contentions, it did not substantially comply with the one-week written notice of termination requirement of Rule XIX.6. Prior decisions have established that substantial compliance existed where the employee received written notice prior to the date of termination and received oral notification of poor performance prior to termination (see Matter of Schuman v. Westchester County Health Care Corp., 304 AD2d 585; Matter of Glenn v. State Univ. of N.Y., Purchase Coll., 243 AD2d 712; Matter of Harper v. Director of Bronx Dev. Ctr., 134 AD2d 197; Matter of Rosenberg v. Wickham, 36 AD2d 881). Here, the District delivered the written notice of termination of the petitioner’s employment on the day of the termination of the petitioner’s employment. Further, there is insufficient evidence in the record that the petitioner was orally notified of his deficient performance prior to the termination of his employment.In light of our determination, we need not reach the petitioner’s remaining contention that the determination to terminate his employment was arbitrary and capricious.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.Antonia Palaia, ap, v. Vincent Palaia, res — (Index No. 13372/97)Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated December 4, 2015. The order, insofar as appealed from, granted those branches of the defendant’s motion which were, in effect, for determinations that, pursuant to the parties’ stipulation of settlement dated August 22, 1997, which was incorporated but not merged into a judgment of divorce dated October 9, 1997, the plaintiff was entitled to a 50 percent share of the value of one of his 401(k) accounts as of the date of the execution of the stipulation of settlement, and was not entitled to any share of the value of his supplemental employee retirement plan, and denied the plaintiff’s cross motion to enforce the stipulation of settlement by directing the defendant to pay her a 50 percent share of the value of the subject 401(k) account and the supplemental employee retirement plan as of the date of his retirement, with interest at the statutory rate from the date of his retirement.ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the defendant’s motion which were, in effect, for determinations that, pursuant to the parties’ stipulation of settlement, the plaintiff was entitled to a 50 percent share of the value of the subject 401(k) account as of the date of the execution of the stipulation of settlement, and was not entitled to any share of the value of his supplemental employee retirement plan, and substituting therefor provisions denying those branches of the defendant’s motion, and (2) by deleting the provisions thereof denying those branches of the plaintiff’s cross motion which were to enforce the stipulation of settlement by directing the defendant to pay her a 50 percent share of the value of the subject 401(k) account and the supplemental employee retirement plan as of the date of his retirement, and substituting therefor provisions granting those branches of the plaintiff’s cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.The parties were divorced by judgment dated October 9, 1997. They had entered into a stipulation of settlement dated August 22, 1997, which was incorporated but not merged into the judgment of divorce. The stipulation provided, in relevant part, that the defendant had a 401(k) account “with a value as of 12/31/96 of $77,146.00; the [plaintiff] shall be entitled to one half of the aforesaid sum under a Qualified Domestic Relations Order to be prepared by the [plaintiff]‘s attorney.” The stipulation further provided that the defendant had a supplemental employee retirement plan (hereinafter SERP), and that the plaintiff “shall be entitled to one half of the value of said plan as of 12/31/96 under a Qualified Domestic Relations Order to be prepared by the [plaintiff]‘s attorney.”In 2002, the Supreme Court entered a qualified domestic relations order (hereinafter QDRO). The QDRO stated that “[t]he parties consent to the submission of this order to the Court,” and it was signed by the court and the attorneys for both parties. As relevant, the QDRO provided that the plaintiff would be entitled to a portion of the accumulation of assets in the subject 401(k) account and SERP, based on a Majauskas-type formula (see Majauskas v. Majauskas, 61 NY2d 481). The QDRO provided that those benefits were to be paid to the plaintiff in a “lump sum” upon the actual retirement of the defendant.In 2014, the defendant moved, inter alia, in effect, for a determination that, pursuant to the stipulation of settlement, the plaintiff was entitled to a 50 percent share of the value of the subject 401(k) account as of the date of the execution of the stipulation of settlement. He also contended that the plaintiff was entitled to a 50 percent share of the value of the SERP as of the date of the execution of the stipulation of settlement, and that, since the SERP had no value on the date of the execution of the stipulation of settlement, the plaintiff was not entitled to any portion of the SERP. He also argued that the SERP was not marital property subject to distribution. The plaintiff cross-moved to enforce the stipulation of settlement by directing the defendant to pay her a 50 percent share of the value of the subject 401(k) account and the SERP as of the date of his retirement, with interest at the statutory rate from the date of his retirement on March 1, 2014. In the order appealed from, the Supreme Court granted those branches of the defendant’s motion, and denied the plaintiff’s cross motion. The plaintiff appeals.“A stipulation of settlement is a contract, enforceable according to its terms” (Stein v. Stein, 130 AD3d 604, 605; see Klein v. Klein, 134 AD3d 1066, 1068). Where a stipulation of settlement is susceptible of differing interpretations and is thus ambiguous, a court is “entitled to rely upon the language of the entire agreement and the circumstances surrounding its execution in construing the provision” (Noren v. Babus, 144 AD3d 762, 764; see Springer v. Springer, 125 AD3d 842, 843; Kurtz v. Johnson, 54 AD3d 904, 905).Here, the stipulation of settlement, which provides that “the [plaintiff] shall be entitled to one half of the value of [the SERP] as of 12/31/96 under a Qualified Domestic Relations Order,” is ambiguous. On the one hand, since the SERP, by definition, did not fund until the date of the defendant’s retirement, and had a zero balance as of December 31, 1996, that language could be construed to mean that the plaintiff’s share of the SERP was one-half of zero, entitling her to nothing. On the other hand, that language could be construed to mean that the plaintiff was to receive a rough Majauskas share of the SERP upon the defendant’s eventual retirement, pursuant to a QDRO, based on the length of the parties’ marriage to a December 31, 1996, cut-off. Indeed, the plaintiff and the defendant each advocate these competing interpretations here.Courts must interpret matrimonial stipulations of settlement using the standards of contract interpretation (see Rainbow v. Swisher, 72 NY2d 106, 109; Kraus v. Kraus, 131 AD3d 94, 100; Penavic v. Penavic, 88 AD3d 671, 672). A QDRO can only convey rights agreed upon by the parties in their underlying stipulation of settlement (see McCoy v. Feinman, 99 NY2d 295, 304; Kraus v. Kraus, 131 AD3d at 100; Berardi v. Berardi, 54 AD3d 982, 985). Courts “cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation” (Cohen-Davidson v. Davidson, 291 AD2d 474, 475; see Tamburello v. Tamburello, 113 AD3d 752; Cappello v. Cappello, 286 AD2d 360; Tinter v. Tinter, 96 AD2d 556, 557). Here, however, the parties assented to a reformation of their stipulation of settlement in a manner that resolves the ambiguity of its SERP language by mutually consenting to the language of the QDRO that was entered by the Supreme Court in 2002. The QDRO states that the parties “consent[ed] to the submission of th[e] order,” and it was signed by the attorneys representing both parties. The QDRO directed the use of a standard Majauskas formula for dividing, inter alia, the SERP. While the terms of a QDRO must ordinarily yield to the terms of an underlying matrimonial stipulation of settlement or judgment (see Kraus v. Kraus, 131 AD3d at 100-101; Berardi v. Berardi, 54 AD3d at 986), here, the circumstances warrant otherwise as the QDRO resolved an ambiguity in the language of the underlying stipulation, and further, was submitted for entry upon the consent of both parties.Our conclusion is consistent with Olivo v. Olivo (82 NY2d 202). In Olivo, the Court of Appeals held that an ex-wife was not entitled to a marital portion of her ex-husband’s social security bridge payment or a separation incentive payment from his employer, as the bridge and separation incentive programs did not exist until after the parties had divorced (see id. at 208). In contrast, here, the defendant’s SERP, while not yet “funded” during the marriage, did exist during and after the marriage, subject to its later vestiture, with the plaintiff’s entitlement to her marital share confirmed by the parties’ QDRO, entered on consent.Likewise, the provision in the stipulation of settlement regarding the subject 401(k) account is ambiguous. It can be read to entitle the plaintiff to a one-half share of a fixed sum that existed at the time the stipulation was prepared, or alternatively, its reference to the preparation of a QDRO allows for an interpretation that the parties intended a Majauskas division of the value of that account on the date of the defendant’s retirement. As with the SERP, the ambiguity of the language was resolved by the QDRO, entered on the consent of the parties, which specified that the plaintiff was entitled to a standard Majauskas share of the 401(k) account.Accordingly, the Supreme Court should have interpreted the stipulation of settlement in light of the 2002 QDRO, which granted to the plaintiff a one-half share, as per the formula set forth therein, in the subject 401(k) account and SERP as of the date of the retirement of the defendant (see Noren v. Babus, 144 AD3d at 764; Springer v. Springer, 125 AD3d at 843; Kurtz v. Johnson, 54 AD3d at 905).The Supreme Court properly denied that branch of the plaintiff’s cross motion which sought interest at the statutory rate from the date of the defendant’s retirement (see O’Donnell v. O’Donnell, 153 AD3d 1357; Lundon v. Lundon, 120 AD3d 1395, 1397).The defendant’s remaining contention is without merit.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.MATTER of Justine R. (Anonymous). Administration for Childrens Services, ap; Cara T. (Anonymous) res — (Proceeding No. 1)MATTER of Jenya R. (Anonymous). Administration for Childrens Services, ap; Cara T. (Anonymous) res — (Proceeding No. 2)MATTER of William R. (Anonymous). Administration for Childrens Services, ap; Cara T. (Anonymous) res — (Proceeding No. 3) (Docket Nos. N-2555-16, N-2556-16, N-2557-16)Austin I. Idehen, Jamaica, NY, for respondent Cara T.Joel Borenstein, Brooklyn, NY, for respondent William R.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Patricia Colella of counsel), attorney for the children.Appeals from (1) a decision of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated October 27, 2016, and (2) an order of that court, also dated October 27, 2016. The order, upon the decision, made after a fact-finding hearing, and upon the granting of the separate motions of the respondents, Cara T. and William R., made at the close of the petitioner’s case, to dismiss the petitions for failure to make a prima facie case, dismissed the petitions.ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Matter of Ania N. [Marzena N.], 138 AD3d 862; Schicchi v. J.A. Green Constr. Corp., 100 AD2d 509); and it is further,ORDERED that the order is reversed, on the law, without costs or disbursements, the respondents’ separate motions are denied, the petitions are reinstated, and the matter is remitted to the Family Court, Richmond County, for further proceedings in accordance herewith.The respondent William R. (hereinafter the father) is the father of the three subject children. In 2013, the father and the children began living with the father’s girlfriend, the respondent Cara T., and her son Vito C. On June 19, 2016, Vito C., who was approximately 19 years of age, broke down the front door of their home, punched one of the children in the face, and threatened to get a knife. When the police arrived at the scene, Vito C. was standing on the roof of the home, brandishing a knife. Once the police were able to coax him down, he was brought to a hospital.Shortly after the June 19, 2016, incident, the petitioner interviewed family members, revealing that, over a two-year period, Vito C.’s behavior toward the father and the subject children had progressively worsened. Vito C. was alleged to have, inter alia, punched holes in the walls, urinated and defecated on the floor, urinated in the father’s water bottle, put cigarettes out on the furniture, and smoked marijuana in the home. After Cara T. refused to acknowledge Vito C.’s mental health condition, the petitioner filed three petitions against her, one as to each of the children, pursuant to Family Court Act article 10, alleging that she had neglected the children based on inadequate supervision or guardianship. On June 24, 2016, after ascertaining that the father failed to obtain orders of protection on behalf of the children, the petitioner obtained temporary orders of protection on behalf of the children against Cara T. and Vito C. About one month later, the petitioner amended the petitions to include the father as a respondent.The matter proceeded to a fact-finding hearing, and at the close of the petitioner’s case, the respondents separately moved to dismiss the petitions, arguing that the petitioner failed to present a prima facie case of neglect. The Family Court granted the motions and dismissed the petitions. The petitioner appeals.A child is deemed to be neglected if the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent or other person legally responsible for his [or her] care to exercise a minimum degree of care… in providing the child with proper supervision or guardianship” (Family Ct Act §1012[f][i][B]). Where a motion is made by a respondent at the close of the petitioner’s case to dismiss a neglect petition, the Family Court must determine whether the petitioner presented a prima facie case of neglect, viewing the evidence in a light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the proof presented (see Matter of Giovanni S. [Jasmin A.], 98 AD3d 1054, 1056).Here, contrary to the Family Court’s determination, viewing the evidence in the light most favorable to the petitioner, and affording it the benefit of every favorable inference which could be reasonably drawn from the evidence (see Matter of Isiah L. [Terry C.], 154 AD3d 697), the petitioner presented a prima facie case of neglect. The evidence at the fact-finding hearing established that Vito C. was exhibiting violent, erratic behavior, which escalated over two years prior to the incident on June 19, 2016. In addition to the caseworker’s testimony that she was told by various family members that Vito C. was dangerous, the petitioner introduced photographs of Vito C.’s bedroom, which corroborated the father’s statements to the caseworker that Vito C. had punched holes in the walls of his bedroom, broke the mirror in his room, and filled the father’s water bottle with urine. Yet, despite their awareness of Vito C.’s worsening behavior, the father and Cara T. continued to allow the children to reside together with Vito C. in the same household. This evidence established a prima facie case of neglect against the respondents.Accordingly, the Family Court should have denied the respondents’ separate motions to dismiss the petitions. Since the court terminated the proceedings at the close of the petitioner’s direct case upon an erroneous finding that a prima facie case of neglect had not been established, we remit the matter for a new hearing and, thereafter, a new determination of the petitions (see Matter of Jaivon J. [Patricia D.], 148 AD3d 890, 892).SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Mican Brooks, res, v. Shaniqwa Hall, ap — (Docket Nos. V-18014-13, V-20107-13)Jennifer Arditi, Maspeth, NY, for appellant.Anthony Augustus, Jamaica, NY, for respondent.Thomas R. Villecco, Jericho, NY, attorney for the child.Appeal from an order of the Family Court, Queens County (Craig Ramseur, Ct. Atty. Ref.), dated March 21, 2016. The order, insofar as appealed from, awarded sole legal and physical custody of the parties’ child to the father.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.In 2013, the mother and the father each filed petitions for custody of their child. After a hearing, the Family Court awarded sole legal and physical custody of the child to the father. The mother appeals.The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Klein v. Theus, 143 AD3d 984, 985; Matter of Gooler v. Gooler, 107 AD3d 712; Matter of Julie v. Wills, 73 AD3d 777). Inasmuch as a court’s custody determination is dependent to a large extent upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court’s exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Pena v. Cordero, 152 AD3d 697, 698; Matter of Supangkat v. Torres, 101 AD3d 889, 890; Matter of Reyes v. Polanco, 83 AD3d 849, 850). Here, the Family Court’s determination that the child’s best interests would be served by awarding sole legal and physical custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Scott v. Davidson, 137 AD3d 923, 924; Matter of Manfredo v. Manfredo, 53 AD3d 498, 500; Baker v. Baker, 66 AD3d 722, 723).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Isiah M. (Anonymous). Community Counseling and Mediation respondents; Teresa M. (Anonymous) ap — (Proceeding No. 1)MATTER of Jerome W. M. (Anonymous). Community Counseling and Mediation respondents; Teresa M. (Anonymous) ap — (Proceeding No. 2) (Docket Nos. B-3862-12, B-3863-12)Appeals from two orders of fact-finding and disposition of the Family Court, Kings County (Amanda White, J.) (one as to each child), both dated September 20, 2016. The orders, made after fact-finding and dispositional hearings, found that the mother and the father permanently neglected the subject children, terminated their parental rights, and transferred guardianship and custody of the children to the Commissioner of Social Services of the City of New York and to Coalition for Hispanic Family Services for the purpose of adoption.ORDERED that the appeals from so much of the orders of fact-finding and disposition as terminated parental rights, upon the default by the mother and the father in appearing at the dispositional hearing, are dismissed, without costs or disbursements; and it is further,ORDERED that the orders of fact-finding and disposition are affirmed insofar as reviewed, without costs or disbursements.The two subject children, born in April 2004 and in June 2006, respectively, were placed in foster care in August 2006, released to their parents on a trial discharge in March 2011, and returned to foster care in April 2011, upon, inter alia, reports that the father was abusing drugs in the home. In February 2012, the petitioner commenced these proceedings pursuant to Social Services Law §384-b to terminate the parental rights of the mother and the father on the basis of permanent neglect and mental illness. Following a fact-finding hearing, the Family Court found that the mother and the father permanently neglected the children by, among other things, failing to plan for the children’s future, although physically and financially able to do so, notwithstanding the petitioner’s diligent efforts to encourage and strengthen the parental relationship. At the subsequent dispositional hearing, the mother and the father failed to appear on the last day, and the court proceeded in their absence without the participation of their attorneys. Thereafter, the court determined that the mother and the father permanently neglected the children, terminated their parental rights, and transferred guardianship and custody of the children for the purpose of adoption. The mother and the father appeal.The Family Court properly found that the mother and the father permanently neglected the children. The petitioner established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship (see Social Services Law §384-b[7][a]; Matter of Syasiah A.-M.L. [Valisha A.N.], 154 AD3d 755, 755; Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d 1119, 1119-1120; Matter of Lierre J.M. [Melissa L.D.], 150 AD3d 1009, 1010; Matter of Hector V.P. [Marianna V.], 146 AD3d 889, 890). These efforts included, inter alia, facilitating visitation, providing transportation assistance and other financial support, supporting the release of the children on a trial discharge and providing 24-hour homemaking services, individual and family counseling, and mental health services, and encouraging the parents to comply with the programs available to them (see Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d at 1119-1120; Matter of Lierre J.M. [Melissa L.D.], 150 AD3d at 1010; Matter of Hector V.P. [Mariana V.], 146 AD3d at 890). Despite these efforts, the mother and the father failed to plan for the children’s future by failing to gain insight in their respective behavior and the problems that caused the children to be placed in foster care (see Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d at 1119-1120; Matter of Elijah M.A. [Mohammed A.], 135 AD3d 744, 746; Matter of Victoria C. [Cassandra C.], 106 AD3d 1084, 1085; Matter of Ajuwon H., 18 AD3d 752, 753).Further, the appeals by the parents from the dispositional portions of the orders of fact-finding and disposition must be dismissed in light of their default in appearing at the dispositional hearing (see Matter of Kolsuma B. [Nosira B.], 154 AD3d 842, 843; Matter of Anastasia E. Mc. [Troy Mc.], 147 AD3d 955, 956). Accordingly, the mother’s remaining contention regarding the disposition is not properly before us.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.MATTER of Ketty Baalla, res, v. Noreddine Baalla, ap — (Docket Nos. V-04297-14, V-05550-15)Rhonda R. Weir, Brooklyn, NY, for appellant.Karen P. Simmons, Brooklyn, NY (Lee Tarr and Janet Neustaetter of counsel), attorney for the child.Appeal from an order of the Family Court, Kings County (Judith Waksberg, J.), dated June 21, 2016. The order, insofar as appealed from, after a hearing, granted the mother’s petition to modify the parties’ stipulation of settlement so as to award her sole legal custody of the parties’ child.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties, who were married in 2006, separated in 2008, and divorced in 2009, have one child, who was born in 2006. Prior to the marriage, the mother was Christian and the father was Muslim, but the mother converted to Islam and they were married in a religious ceremony. When the parties separated, the mother returned to Christianity.Pursuant to the parties’ stipulation of settlement and their judgment of divorce, the parties had joint legal custody of the child and the mother had primary physical custody of the child, who was approximately 2  years old when the parties separated. The stipulation stated that the parties would consult with each other regarding the child’s religious training, but did not specify in which religious tradition the child would be raised. As the child’s primary custodian, the mother taught the child Christian values and practices in accordance with her beliefs.When the child was approximately 7  years old, she complained to the mother that the father was pressuring her to adopt Muslim practices and had threatened to abscond with her to his native Morocco, where he retained citizenship in addition to his US citizenship, if she failed to follow Muslim practices and customs. The child asked the mother to call the police and also sought help from school personnel. The mother responded by filing a petition seeking sole legal custody of the child. The father thereafter petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.After a hearing, the Family Court granted the mother’s petition for sole legal custody but granted the father liberal visitation, including on all major Muslim holidays. The father appeals.“‘In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child’” (Gentile v. Gentile, 149 AD3d 916, 918, quoting Matter of Fallarino v. Ayala, 41 AD3d 714, 714; see Matter of Scheiner v. Henig, 155 AD3d 874, 874; Weisberger v. Weisberger, 154 AD3d 41, 50; Matter of Nixon v. Ferrone, 153 AD3d 625, 626; Matter of Perez v. Brown, 150 AD3d 1011, 1011). Here, the parties’ inability to agree on the child’s religious training, which was an issue that had not been addressed in the parties’ July 2009 stipulation of settlement, constituted a change in circumstances. The change in the child’s relationship with the father based on the child’s fear of his displeasure if she were not a “true Muslim,” and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification (see Matter of Shehata v. Shehata, 31 AD3d 773, 774; Matter of Oddy v. Oddy, 296 AD2d 616, 617).“In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child” (Matter of Jules v. Corriette, 76 AD3d 1016, 1017; see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Maxwell v. Watt, 152 AD3d 693, 693; Matter of Perez v. Brown, 150 AD3d at 1011; Matter of McQueen v. Legette, 125 AD3d 863; Matter of McKoy v. Vatter, 106 AD3d 1090; Matter of Roldan v. Nieves, 76 AD3d 634; Pierre-Paul        v. Boursiquot, 74 AD3d 935, 936; Mohen v. Mohen, 53 AD3d 471, 472-473; Matter of Fallarino v. Ayala, 41 AD3d at 714-715). ”The best interests of the child are determined by a review of the totality of the circumstances” (Matter of Scheiner v. Henig, 155 AD3d at 874; see Matter of Nixon v. Ferrone, 153 AD3d at 626).Here, the record supported the conclusion of the Family Court that it was in the child’s best interests to award sole legal custody to the mother. With regard to the child’s medical care and education, the father had already ceded authority to the mother and admittedly trusted her judgment and expertise in making those decisions. The evidence established that the only issue on which the parents disagreed was the religion in which the child should be raised and to what degree she should be expected to observe the tenets of each parent’s religion. The award to the mother of sole decision-making authority with respect to religion is in the child’s best interests, and the award of parenting time to each parent on his or her respective religious holidays will continue to allow the child to be exposed to both parents’ religions (see Matter of Waldron v. Dussek, 48 AD3d 471, 472-473).Similarly, the father’s actual or perceived insistence that the child follow Islam and actual or perceived threats to abscond to Morocco with the child had a serious adverse effect on the child’s relationship with him and, thus, made an award of sole custody to the mother appropriate. The child was 10 years old at the time of the hearing and, accordingly, the Family Court properly considered her wishes, weighed in light of her age and maturity (see Matter of Hutchinson v. Johnson, 134 AD3d 1115, 1116).RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Autumn O. (Anonymous). Administration for Childrens Services, ap; Noah O. (Anonymous) res — (Docket Nos. N-5730-16, N-1737-17)Deana Balahtsis, New York, NY, for respondent Noah O.Larry S. Bachner, New York, NY, for respondent Tiavana C.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and John A. Newbery of counsel), attorney for the child.Appeals from (1) an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated April 6, 2017, and (2) an order of that court dated April 11, 2017. The order dated April 6, 2017, sua sponte, dismissed without prejudice a petition alleging that the parents neglected the subject child. The order dated April 11, 2017, sua sponte, dismissed so much of a second petition alleging that the parents neglected the subject child as contained allegations that were asserted in the petition dismissed in the order dated April 6, 2017.ORDERED that the appeal from the order dated April 6, 2017, is dismissed, without costs or disbursements, as that order was superseded by the order dated April 11, 2017; and it is further,ORDERED that the order dated April 11, 2017, is reversed, on the law, without costs or disbursements, the order dated April 6, 2017 is vacated, those portions of the second petition designated as paragraphs 1a and 1b are reinstated, and the matter is remitted to the Family Court, Richmond County, for a fact-finding hearing on the allegations in those paragraphs and, if necessary, a dispositional hearing thereafter.The mother and the father are the parents of the subject child. On December 30, 2016, the Administration for Children’s Services (hereinafter ACS) filed a neglect petition (hereinafter the first petition) against the parents, alleging that they failed to provide the child with medical care. In an order dated April 6, 2017, the Family Court, sua sponte, dismissed the first petition, without prejudice, for failure to state a cause of action. On April 7, 2017, ACS filed a second neglect petition, which contained the same allegations in the first petition, as well as an additional allegation of medical neglect. In an order dated April 11, 2017, the court, sua sponte, dismissed so much of the second petition as contained the allegations in the first petition, which had been dismissed in the order dated April 6, 2017. ACS appeals from both orders.In determining whether to dismiss a petition in a child protective proceeding, the court must accept the allegations set forth in the petition as true and afford the petitioner the benefit of every favorable inference that can be drawn therefrom (see Matter of Keira O., 44 AD3d 668, 670; Matter of Alan FF., 27 AD3d 800, 801). Applying this standard here, the allegations set forth in the first petition were facially sufficient to state a cause of action alleging neglect and to warrant that this matter proceed to a fact-finding hearing on those allegations. Pursuant to Family Court Act § 1012(f)(i)(A), a child is neglected where the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a result of a parent’s failure to exercise a minimum degree of care “in supplying the child with adequate… medical… care.” Parents have a “nondelegable affirmative duty to provide their child with adequate medical care” (Matter of Hofbauer, 47 NY2d 648, 655). ”To find medical neglect, there must be a determination that the parent did not seek or accept medical care, and that such failure placed the child in imminent danger of becoming impaired” (Matter of Shawndel M., 33 AD3d 1006, 1006).Here, the first petition alleged that the child had been diagnosed with asthma at birth, and that despite being advised that the child had to be seen by her pediatrician every two months to monitor her condition, as of December 30, 2016, the parents had missed six appointments with the pediatrician since September 2016. In addition, the first petition alleged that the child’s immunizations were not up to date, and that on December 6, 2016, the child was brought to the emergency room in respiratory distress, and despite the fact that the child was wheezing audibly, the mother left the hospital with the child against medical advice and before the child received treatment, and failed to follow up with the child’s pediatrician. These allegations were sufficient to state a cause of action alleging medical neglect (see generally Matter of Mia G. [William B.], 146 AD3d 882, 883; Matter of Richard S. [Lacey P.], 130 AD3d 630, 633; Matter of Kinara C. [Jerome C.], 89 AD3d 839, 840).Moreover, with respect to the second petition, the Family Court erred in determining that the allegations of neglect that had been alleged in the first petition were barred by the doctrine of law of the case, since the dismissal of the first petition was not on the merits (see Matter of Mark C. v. Patricia B., 41 AD3d 1317, 1317; Brownrigg v. New York City Hous. Auth., 29 AD3d 721, 722). Accordingly, we reinstate those portions of the second petition designated as paragraphs 1a and 1b, and remit the matter to the Family Court, Richmond County, for a fact-finding hearing on the allegations of neglect contained in those paragraphs and, if necessary, a dispositional hearing thereafter.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Qwin L. X. P. (Anonymous). Jewish Child Care Association of New York respondents; Leonard P. (Anonymous), ap — (Docket No. B-7719-14)Cheryl Charles-Duval, Brooklyn, NY, for appellant.James M. Abramson, PLLC, New York, NY (Rachel Ambats of counsel), for respondent Jewish Child Care Association of New York.Karen P. Simmons, Brooklyn, NY (Chai Park and Janet Neustaetter of counsel), attorney for the child.Appeal from an order of the Family Court, Kings County (Lillian Wan, J.), dated November 16, 2016. The order denied the father’s motion to vacate an order of fact-finding and disposition of that court dated July 29, 2016, which, inter alia, upon his failure to appear at an inquest, found that he had permanently abandoned the subject child, terminated his parental rights, and freed the child for adoption.ORDERED that the order dated November 16, 2016, is affirmed, without costs or disbursements.On or about February 3, 2016, the Jewish Child Care Association of New York filed an amended petition, inter alia, to terminate the father’s parental rights with respect to the subject child. On July 14, 2016, the Family Court held an inquest, at which the father did not appear. Following the inquest, in an order of fact-finding and disposition dated July 29, 2016, entered upon the father’s default, the court found that the father had permanently neglected the subject child, terminated the father’s parental rights, and freed the child for adoption. The father moved to vacate the order of fact-finding and disposition, and the court denied the motion. The father appeals, contending that he had a reasonable excuse for his failure to appear at the inquest, and a meritorious defense to the allegations in the amended petition.The determination whether to relieve a party of a default is a matter left to the sound discretion of the Family Court (see Matter of Deyquan M.B. [Lashon H.], 124 AD3d 644; Matter of Raphanello J.N.L.L.        [Rasheem L.], 119 AD3d 580). In seeking to vacate his default, the father was required to show that he had a reasonable excuse for his default and that he had a potentially meritorious defense (see CPLR 5015[a][1]; Matter of Raphanello J.N.L.L. [Rasheem L.], 119 AD3d at 580). Here, the court providently exercised its discretion in denying the father’s motion, as he failed to establish a reasonable excuse for his failure to appear at the inquest. Although the father claimed that he was unable to attend the inquest due to an appointment related to housing, he submitted no documentary or other supporting evidence to establish that he actually attended this appointment on the date of the inquest (see Matter of Paul G.D.H. [Yvonne H.], 147 AD3d 699; Matter of Raphanello J.N.L.L. [Rasheem L.], 119 AD3d at 580; Matter of Tyieyanna L. [Twanya McK.], 94 AD3d 494).In any event, the father failed to set forth a potentially meritorious defense to the allegations in the amended petition. The conclusory assertions in his affidavit, which were not supported by the documentary evidence he submitted, without more, were insufficient to establish the existence of a potentially meritorious defense (see Matter of Raphanello J.N.L.L. [Rasheem L.], 119 AD3d at 580-581; Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942). Rather, the father’s own admissions evinced an intent to forego his parental rights and obligations by his failure for a period of six months to contact or communicate with the child or the person having legal custody of the child (see Domestic Relations Law §111[2][a]; Matter of Ashley P., 31 AD3d 767, 768; Matter of Clair, 231 AD2d 842).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.Bank of America National Association, res, v. Samir Masri, appellant def — (Index No. 4964/13)Buckley Madole, P.C., New York, NY (Brian P. Scibetta of counsel), for respondent.Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered February 26, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Samir Masri and for an order of reference.ORDERED that the order is affirmed insofar as appealed from, with costs.The defendant Samir Masri (hereinafter the appellant) executed a note in the sum of $799,600 in favor of JPMorgan Chase Bank, N.A. (hereinafter JPMorgan Chase), which was secured by a mortgage on residential property located in Great Neck. By an assignment dated November 26, 2011, JPMorgan Chase assigned the mortgage to the plaintiff. In April 2013, the plaintiff commenced this action against the appellant, among others, to foreclose the mortgage. The appellant served an answer in which he asserted as affirmative defenses that the plaintiff lacked standing and that the plaintiff, in bad faith, falsely promised a loan modification. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellant and for an order of reference. The appellant opposed the motion. In the order appealed from, the Supreme Court granted those branches of the motion.Where a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; U.S. Bank, N.A. v. Noble, 144 AD3d 786, 787; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753-754). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726; U.S. Bank N.A. v. Saravanan, 146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861, 862).Here, the plaintiff established, prima facie, its standing to commence the action by submitting the affidavit of Lynn Benedict, an assistant secretary of JPMorgan Chase, successor by merger to Chase Home Finance, LLC (hereinafter Chase Home Finance), attorney-in-fact for the plaintiff. Benedict stated that the original note was delivered to JPMorgan Chase prior to the commencement of the action, that JPMorgan Chase held the original note on behalf of the plaintiff, and that two allonges were affixed to the note, one containing an endorsement from JPMorgan Chase, as the original lender, to Chase Home Finance, and the other containing an endorsement in blank from Chase Home Finance (see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890, 891; Wells Fargo Bank, N.A. v. Gallagher, 137 AD3d 898, 899). In opposition, the appellant failed to raise a triable issue of fact.Contrary to the appellant’s contention, the Supreme Court did not err in failing to deny the motion as premature, as the appellant offered mere hope and speculation that evidence sufficient to defeat the plaintiff’s motion may be uncovered during the discovery process (see Cortes v. Whelan, 83 AD3d 763, 764).Furthermore, the appellant failed to raise an issue of fact as to whether a hearing pursuant to CPLR 3408(f) should be held to determine whether the plaintiff, in bad faith, delayed in determining his application for a loan modification.Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the appellant and for an order of reference.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.John Paul Valente, etc., ap, v. Dave & Busters of New York, Inc. respondents defendants (and a third-party action). (Index No. 7782/12)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered August 24, 2015, as granted that branch of the motion of the defendants Dave & Buster’s of New York, Inc., Dave & Buster’s, Inc., and Dave & Buster’s Management Corporation, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from, with costs.On October 8, 2010, the plaintiff was stabbed while at a restaurant and entertainment complex owned and operated by the defendants Dave & Buster’s of New York, Inc., Dave & Buster’s, Inc., and Dave & Buster’s Management Corporation, Inc. (hereinafter collectively the respondents). The plaintiff commenced this action, alleging, among other things, that he was injured as a result of the respondents’ inadequate security. The respondents moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and the Supreme Court granted that branch of their motion.The respondents had a duty to take minimal security precautions to protect members of the public from reasonably foreseeable criminal acts by third parties (see Sandra M. v. St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d 875, 878; Ayeni v. County of Nassau, 18 AD3d 409, 410; Williams v. Citibank, 247 AD2d 49, 51; Kirkman v. Astoria Gen. Hosp., 204 AD2d 401, 402). Here, the respondents established their prima facie entitlement to judgment as a matter of law by showing that the criminal assault of the plaintiff was not foreseeable (see Kumar v. Farber, 115 AD3d 567; Kranenberg v. TKRS Pub, Inc., 99 AD3d 767, 768). In opposition, the plaintiff failed to raise a triable issue of fact.The plaintiff’s remaining contentions regarding the respondents’ failure to provide adequate security need not be addressed in light of our determination that the assault was not foreseeable.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.MATTER of Edmund DeGennaro, appellant- res, v. Julie DeGennaro, res-res — (Docket No. V-16823-16/16A)Appeal and cross appeal from an order of the Family Court, Suffolk County (Caren Loguercio, J.), dated February 10, 2017. The order, insofar as appealed from, granted those branches of the mother’s motion which were to dismiss those branches of the father’s petition which were to hold the mother in civil contempt for her willful violation of the visitation provision in the parties’ stipulation of settlement and for a downward modification of his child support obligation. The order, insofar as cross-appealed from, denied that branch of the mother’s motion which was for an award of an attorney’s fee.ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.In March 2016, the parties executed a stipulation of settlement, whereby they agreed that the mother would have custody of the partes’ child and the father would have visitation at any time he and the child mutually agreed. The mother waived child support in exchange for a distributive award of specified portions of the father’s retirement accounts. The stipulation of settlement was incorporated, but not merged, into the parties’ judgment of divorce dated July 28, 2016.Thereafter, the father commenced this proceeding in the Family Court, inter alia, to hold the mother in civil contempt for her willful violation of the visitation provision of the stipulation of settlement and for a downward modification of his child support obligation, consisting of the transfer of retirement account funds to her. The father sought to hold the mother in civil contempt in connection with her alleged interference with his visitation with the child. The mother moved, inter alia, to dismiss those branches of the petition which were to hold her in contempt and for a downward modification of the father’s child support obligation, and for an award of an attorney’s fee. The court granted those branches of the mother’s motion which were to dismiss those branches of the petition which were to hold her in contempt and for a downward modification of the father’s child support obligation, and denied that branch of the mother’s motion which was for an award of an attorney’s fee. The father appeals, and the mother cross-appeals.The Family Court properly granted that branch of the mother’s motion which was to dismiss that branch of the petition which was to hold her in civil contempt. The father failed to establish that the mother willfully violated a clear and unequivocal order of the court and that he was prejudiced by any such violation (see Matter of Chichra v. Chichra, 148 AD3d 883, 885; Matter of Brown v. Mudry, 55 AD3d 828, 829).The Family Court properly granted that branch of the mother’s motion which was to dismiss that branch of the petition which was for a downward modification of the father’s child support obligation. The court lacked authority to vacate or modify the provision of the stipulation of settlement in which the father agreed to transfer funds from his retirement accounts to the mother (see Matter of McCarthy v. McCarthy, 79 AD3d 1130, 1131; Matter of Gambacorta v. Gambacorta, 45 AD3d 839, 840). In any event, that branch of the motion was properly granted in light of the father’s conclusory and unsupported allegations of parental alienation on the part of the mother (see Matter of Chichra v. Chichra, 148 AD3d at 884-885; Matter of Addimando v. Huerta, 147 AD3d 750, 753; Matter of Jurgielewicz v. Johnston, 114 AD3d 945, 946; Matter of Rivera v. Echavarria, 48 AD3d 578, 578).Contrary to the mother’s contention, she was not entitled to an award of an attorney’s fee, as the stipulation of settlement provided for the prevailing party to recover expenses, including attorney’s fees, incurred in enforcing the provisions thereof, and the mother, in opposing the father’s petition and moving, inter alia, to dismiss the petition, was not seeking to enforce any rights under the stipulation (see Ambrose v. Ambrose, 128 AD3d 746, 747; Etzion v. Etzion, 84 AD3d 1015, 1018; Ferrara v. Ferrara, 42 AD3d 426, 427). Accordingly, the Family Court properly denied that branch of the mother’s motion which was for an award of an attorney’s fee.MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.MATTER of Hugo LaRosa, pet, v. Barbara Kahn, etc. res — Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Barbara Kahn, an Acting Justice of the Supreme Court, Suffolk County, to determine the petitioner’s motion pursuant to CPL article 440 to vacate a judgment of conviction of that court rendered July 10, 2012, in a criminal action entitled People v. LaRosa, commenced in that court under Indictment No. 1735/11, and application by the petitioner for poor person relief.ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; and it is further,ADJUDGED that the petition is denied as academic and the proceeding is dismissed, without costs or disbursements.The instant proceeding has been rendered academic in light of the determination of the subject motion in an order of the Supreme Court, Suffolk County, dated November 28, 2017.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.MATTER of Maurice M. (Anonymous). Administration for Childrens Services, res; Suzanne H. (Anonymous), ap — (Docket No. N-17810-07)Appeals from (1) an order of fact-finding of the Family Court, Kings County (Amanda E. White, J.), dated July 26, 2012, and (2) an order of disposition of that court (Alan Beckoff, J.) dated May 21, 2015. The order of fact-finding, after a hearing, found that the mother neglected the subject child. The order of disposition, upon the order of fact-finding and after a dispositional hearing, inter alia, released the subject child, upon consent, to the custody of the nonrespondent father.ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,ORDERED that the appeal from so much of the order of disposition as released the subject child, upon consent, to the custody of the nonrespondent father is dismissed, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.The petitioner commenced this neglect proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the subject child by failing to provide him with proper supervision or guardianship due to her own mental illness. After a fact-finding hearing, the Family Court found that the child was neglected. At the subsequent dispositional hearing, the court, inter alia, released the child, upon consent, to the custody of the nonrespondent father. The mother appeals.The appeal from so much of the order of disposition as released the child, upon consent, to the custody of the nonrespondent father must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Eunice D. [James F.D.], 111 AD3d 627, 628; Matter of Brian R., 48 AD3d 576, 577). However, the appeal from the order of disposition insofar as it brings up for review the finding of neglect in the fact-finding order is properly before us, as the adjudication of neglect constitutes a permanent and significant stigma which might indirectly affect the mother’s status in future proceedings (see Matter of Eliora B. [Kennedy B.], 146 AD3d 772, 773; Matter of Eunice D. [James F.D.], 111 AD3d at 628; Matter of Ndeye D. [Benjamin D.], 85 AD3d 1026, 1027).At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act §1012[f][i]). Even though evidence of a parent’s mental illness, alone, is insufficient to support a finding of neglect of a child, such evidence may be part of a neglect determination when the proof further demonstrates that the parent’s condition creates an imminent risk of physical, mental, or emotional harm to the child (see Matter of Michael M. [Seida S.], 149 AD3d 938, 938; Matter of Mia C.W.D. [Tamika D.], 144 AD3d 1028, 1029; Matter of Kiemiyah M. [Cassiah M.], 137 AD3d 1279, 1280). The Family Court’s assessment of credibility of the witnesses is entitled to considerable deference unless clearly unsupported by the record (see Matter of Isabella D. [David D.], 145 AD3d 1003, 1004; Matter of Ariel R. [Danielle K.], 118 AD3d 1010, 1010). Here, the Family Court properly determined that the petitioner established, by a preponderance of the evidence, that the mother suffered from a mental illness, which, in conjunction with her failure to comply with her treatment plan, resulted in irrational behavior that created an imminent danger of impairing the child’s physical, mental, or emotional condition (see Family Ct Act §1012[f][i][B]; Matter of Michael M. [Seida S.], 149 AD3d at 938-939; Matter of Mia C.W.D. [Tamika D.], 144 AD3d at 1029). Accordingly, the court correctly determined that the mother neglected the child.MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.MATTER of Jodi L. Schad, res, v. Steven J. Schad, ap — (Docket No. F-11559-06/16D)Appeal from an order of commitment of the Family Court, Nassau County (Conrad D. Singer, J.), dated February 28, 2017. The order of commitment, in effect, confirmed an order of disposition of that court (Lisa M. Williams, S.M.) dated January 26, 2017, made after a hearing, determining that the father willfully violated a prior order of child support, and committed him to the custody of the Nassau County Correctional Facility for a period of 120 days unless he paid the purge amount of $12,693.18.ORDERED that the appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 120 days is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Larrier v. Williams, 84 AD3d 805, 806); and it is further,ORDERED that the order of commitment is affirmed insofar as reviewed, without costs or disbursements.The father and the mother have one child together. An order of child support issued in 2012 directed the father to pay $111 per week in child support. The father failed to make payments and in July 2016, the mother commenced this proceeding pursuant to Family Court Act article 4, alleging that the father was in willful violation of the child support order. On December 21, 2016, a hearing on the matter was held before a Support Magistrate, who subsequently issued an order of disposition determining that the father willfully violated the child support order. Thereafter, the Family Court issued an order of commitment dated February 28, 2017, which, in effect, confirmed the order of disposition, and committed the father to the custody of the Nassau County Correctional Facility for a period of 120 days unless he paid the purge amount of $12,693.18. The father appeals from the order of commitment.The appeal from so much of the order of commitment as committed the father to the custody of the Nassau County Correctional Facility for a period of 120 days unless he paid the purge amount must be dismissed as academic, as the period of incarceration has expired. However, in light of the enduring consequences which could flow from the determination that the father violated the order of child support, the appeal from so much of the order of commitment as, in effect, confirmed the determination that the father was in willful violation of the order of child support is not academic (see Matter of Stradford v. Blake, 141 AD3d 725, 725; Matter of Dezil v. Garlick, 136 AD3d 904, 905).Failure to pay support, as ordered, constitutes prima facie evidence of a willful violation (see Family Ct Act §454[3][a]; Matter of Dezil v. Garlick, 136 AD3d at 905). Thus, proof that a respondent has failed to pay support as ordered establishes the petitioner’s direct case of willful violation, shifting the burden to the respondent to offer competent, credible evidence of his or her inability to make the payments as ordered (see Matter of Powers v. Powers, 86 NY2d 63, 69-70; Matter of Dezil v. Garlick, 136 AD3d at 905).Here, the mother presented prima facie evidence of the father’s willful violation of a lawful support order and, in response, the father failed to offer any competent, credible evidence of his inability to make the required payments. Thus, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the order of child support (see Matter of Powers v. Powers, 86 NY2d at 70; Matter of Stradford v. Blake, 141 AD3d at 726; Matter of Fusco v. Fusco, 134 AD3d 1112, 1113; Matter of St. Lawrence County Support Collection Unit v. Laneuville, 101 AD3d 1199, 1200; Matter of Cooper v. Robertson, 69 AD3d 714).The father also contends that he was denied the effective assistance of counsel at the hearing to determine whether he willfully violated the order of child support (see Family Ct Act §§262[a][vi]; 454[3][a]; Matter of Scott v. Scott, 62 AD3d 714, 715; Matter of Er-Mei Y., 29 AD3d 1013, 1015). Contrary to the father’s contention, viewed in totality, the record reveals that he received meaningful representation (see Matter of Becker v. Guenther, 150 AD3d 985, 986; Matter of Larrier v. Williams, 84 AD3d at 806).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.PEOPLE, etc., res, v. Battista Geritano, ap — (Ind. No. 260/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Albert Tomei, J.), rendered December 6, 2013, convicting him of attempted assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that the People violated his Brady rights (see Brady v. Maryland, 373 US 83) and his right to present a defense by failing to preserve certain surveillance videotape is unpreserved for appellate review, as he failed to raise this claim before entry of the verdict, consented to the Supreme Court giving the jury a missing evidence charge with respect to the missing surveillance video, and did not raise any objections to the charge as given (see CPL 470.05[2]; People v. Padro, 75 NY2d 820, 821; People v. Robinson, 225 AD2d 399, 400). In any event, the defendant’s contention is without merit (see People v. Hardy, 20 NY2d 663, 669).The defendant’s contentions that the integrity of the grand jury proceeding was impaired by certain evidentiary errors and prosecutorial misconduct are without merit. The defendant failed to show that the People knowingly withheld any of the video surveillance from the grand jury, or knowingly misrepresented the subject matter of the testimony that would have been given before the grand jury by the defendant’s proffered witnesses (see People v. Avilla, 212 AD2d 800, 800-801). Moreover, it was not improper for the prosecutor to omit, from his summary to the grand jury of the proffered testimony of one of the defense witnesses, those portions of the proffered testimony which would have constituted impermissible hearsay (see People v. Swamp, 84 NY2d 725, 730; People v. Simon, 101 AD3d 908, 909).The defendant’s remaining contentions are not subject to review on direct appeal because they involve allegations that are dehors the record, which should be raised on a motion to vacate the judgment pursuant to CPL 440.10 (see People v. Jackson, 29 NY3d 18, 24; People v. Flores, 151 AD3d 740, 741; People v. Singh, 147 AD3d 787, 788; People v. Macaluso, 144 AD3d 947, 947; People v. Morrow, 143 AD3d 919, 920; People v. Bruno, 127 AD3d 986, 987).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.PEOPLE, res, v. Dane Hunt, ap — James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger and Carrie A. Ciganek of counsel), for respondent.Appeal by the defendant from an order of the County Court, Rockland County (Charles Apotheker, J.), entered August 5, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the County Court, Rockland County, for a new hearing and a new determination thereafter in accordance herewith.After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), at which the defendant was not present, the County Court designated the defendant a level two sex offender.“A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing” (People v. Gonzalez, 69 AD3d 819, 819; see People v. Parris, 153 AD3d 68, 76; People v. Porter, 37 AD3d 797). While a defendant may waive the right to be present at the hearing, in order to establish a valid waiver it must be shown, inter alia, that “the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence” (People v. Brooks, 308 AD2d 99, 106; see People v. Jenkins, 151 AD3d 891, 892; People v. Ginyard, 101 AD3d 1095; People v. Jackson, 94 AD3d 961; People v. Porter, 37 AD3d at 797). Here, there is no evidence that the defendant was notified of the adjourned hearing date. Therefore, as the People correctly concede, the record fails to establish that the defendant voluntarily waived his right to be present at the hearing (see People v. Jenkins, 151 AD3d at 893; People v. Phillips, 110 AD3d 1050; People v. Gonzalez, 69 AD3d 819).Accordingly, the order must be reversed, and the matter must be remitted to the County Court, Rockland County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant.In light of our determination, we need not reach the defendant’s remaining contention.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Scheinkman, P.J.; Leventhal, Austin, Duffy and Barros, JJ.PEOPLE, etc., res, v. Tyrone Morgan, ap — (Ind. No. 116/15)Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Dutchess County (Peter M. Forman, J.), imposed February 25, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.Contrary to the defendant’s contention, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., LEVENTHAL, AUSTIN, DUFFY and BARROS, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.MATTER of Tahira Ali, res, v. Gregory Abrams, ap — (Docket No. V-20920-06)Dewette C. Aughtry, Brooklyn, NY, for appellant.Warren S. Hecht, Forest Hills, NY, for respondent.Karen P. Simmons, Brooklyn, NY (Eva D. Stein and Janet Neustaetter of counsel), attorney for the child.Appeal from an order of the Family Court, Kings County (Lisa Aschkenasy, Ct. Atty. Ref.), dated July 11, 2016. The order, insofar as appealed from, upon a decision dated July 20, 2016, made after a hearing, granted the mother’s petition to modify an order of visitation dated November 16, 2006, so as to permit her to relocate with the parties’ child to Texas. The notice of appeal from the decision is deemed to be a notice of appeal from the order dated July 11, 2016 (see CPLR 5512[a]).ORDERED that the order dated July 11, 2016, is affirmed insofar as appealed from, without costs or disbursements.The parties, who are not married and never lived together, had a child together in 2004. The child always lived with the mother. On November 16, 2006, the Family Court issued an order of visitation awarding the father daytime visits with the child once a week and on certain holidays.In 2013, the mother, who never sought an order of custody of the child, filed a petition to modify the order of visitation so as to permit her to relocate to Texas with the child. Following a hearing, the Family Court granted the mother’s petition. The father appeals.A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the child’s best interests (see Matter of Tropea v. Tropea, 87 NY2d 727, 741; Matter of Reyes v. Gill, 155 AD3d 1044). In determining whether a proposed move is in a child’s best interests, courts are “free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 NY2d at 740). These factors include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (id. at 740-741; see Matter of Teel v. Minus, 152 AD3d 705). ”In reviewing the Family Court’s determination, we accord considerable deference to the court’s assessment of the witnesses’ demeanor and credibility” (Matter of Hall v. Clas, 144 AD3d 801, 802 [internal quotation marks omitted]; see Matter of Ventura v. Huggins, 141 AD3d 600, 601). The court’s determination as to the relocation of a child must be supported by a sound and substantial basis in the record (see Matter of Reyes v. Gill, 155 AD3d 1044; Matter of Teel v. Minus, 152 AD3d at 705-706).Here, the mother established by a preponderance of the evidence that the relocation to Texas was in the child’s best interests. She demonstrated that the child’s life will be enhanced economically and emotionally by the move and that it was feasible to preserve the child’s relationship with the father through suitable visitation arrangements (see Matter of Packer v. Ferrante, 139 AD3d 957, 958; Matter of Yu Chao Tan v. Hong Shan Kuang, 136 AD3d 933, 935; Matter of Tracy A.G. v. Undine J., 105 AD3d 1046, 1047; Tsui v. Tsui, 99 AD3d 793; Matter of Harrsch v. Jesser, 74 AD3d 811, 812). Although the relocation will have an impact on the father’s ability to spend time with the child, a liberal visitation schedule, including extended visits during the summer and school vacations, will allow for the continuation of a meaningful relationship between the father and the child (see        Matter of Rivera v. Cruz, 143 AD3d 902, 903; Matter of Packer v. Ferrante, 139 AD3d at 958; Matter of Yu Chao Tan v. Hong Shan Kuang, 136 AD3d at 935). Additionally, the mother has been the primary caretaker of the child, who was nearly 12 years old at the time of the hearing, for his entire life, and he expressed a desire to relocate with her (see Matter of Turvin v. D’Agostino, 152 AD3d 610, 611-162; Matter of Ceballos v. Leon, 134 AD3d 931, 932). Accordingly, the Family Court’s determination to allow the mother to relocate to Texas has a sound and substantial basis in the record.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.MATTER of Kenny G. Calderon, res, v. Kelly M. Walsh Almonte, ap — (Docket Nos. F-5192-08/15G, F-5192-08/16H)Law Office of Robert H. Montefusco, P.C., Islandia, NY, for appellant.Philip J. Jusino & Associates, P.C., Lake Grove, NY, for respondent.Appeal from an order of the Family Court, Suffolk County (Matthew G. Hughes, J.), dated February 7, 2017. The order denied the mother’s objections to an order of that court (Denise Livrieri, S.M.) dated October 20, 2016, which, in effect, granted the father’s petition to terminate his child support obligation and dismissed the mother’s petition alleging a violation of a prior order of child support.ORDERED that the order dated February 7, 2017, is affirmed, with costs.The parties are the parents of a child, who was born in 1997. In 2008, the Family Court directed the father to pay the mother child support. In 2015, the mother filed a violation petition, alleging that the father was in arrears on his child support obligation. On January 15, 2016, the father filed a petition to terminate his child support obligation on the basis that the parties’ child had moved in with him. After a hearing, the Support Magistrate, in effect, granted the father’s petition. The Support Magistrate terminated the father’s child support obligation retroactive to January 15, 2016, and directed the Child Support Enforcement Bureau to recalculate any child support arrears owed by the father. In addition, the Support Magistrate dismissed the mother’s violation petition. The mother filed objections to the Support Magistrate’s order. The Family Court denied those objections, and the mother appeals.The Support Magistrate properly terminated the father’s child support obligation and dismissed the mother’s violation petition. The hearing evidence established that there was a substantial change in circumstances, namely, the child moving from the mother’s house to the father’s house, which justified terminating the father’s child support obligation retroactive to the date that the father filed his petition (see Family Ct Act §451[1], [3]; Matter of Williams v. Randall-Williams, 95 AD3d 1135, 1136; Deith v. Deith, 27 AD3d 613, 613-614; Matter of Christodoulou v. Christodoulou, 212 AD2d 607, 608). Great deference should be given to the credibility determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses (see Matter of Toumazatos v. Toumazatos, 125 AD3d 870, 870-871). Here, the record supports the Support Magistrate’s finding crediting the father’s evidence that the child moved in with him several months before he filed his petition.Contrary to the mother’s contention, the evidence did not establish that the father was in arrears on his child support obligation on the date that he filed his termination petition (see Family Ct Act §451[1]). In any event, since the Support Magistrate directed the Child Support Enforcement Bureau to recalculate the father’s child support arrears as of that date, the father will be required to pay any arrears which accrued before that date.We decline the father’s request to award him attorney’s fees in connection with this appeal based upon the mother’s allegedly frivolous conduct in prosecuting this appeal (see 22 NYCRR 130-1.1; Matter of Talbot, 134 AD3d 726, 727).MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Roman, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Christopher J. Smith, res, v. Nelson Y. Fuentes, ap — (Index No. 609174/16)In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated January 13, 2017, which granted the plaintiff’s motion for summary judgment on the issue of liability.ORDERED that the order is affirmed, with costs.The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the sole proximate cause of the subject accident was the defendant’s violation of Vehicle and Traffic Law §1141 in making a left turn when it was not reasonably safe to do so, directly into the path of the plaintiff’s oncoming vehicle (see Mei-Hua Gao v. Makrinos, 147 AD3d 747, 747; Attl v. Spetler, 137 AD3d 1176, 1176-1177; Ducie v. Ippolito, 95 AD3d 1067, 1067). In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).The defendant’s remaining contention that the plaintiff’s motion was premature is without merit.Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability.ROMAN, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Sharon Brandimarte, ap, v. Liat Holding Corp., et al., res — (Index No. 10714/14)Cellino & Barnes, P.C., New York, NY (Kathleen E. Beatty of counsel), for appellant.Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler and Meredith Drucker Nolen of counsel), for respondents.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated August 30, 2016, which granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint is denied.The plaintiff allegedly was injured when she slipped and fell on a large patch of ice on a sidewalk abutting a property owned by the defendant Liat Holding Corp., and occupied by the defendant Admiral Air Conditioning Corp. (hereinafter Admiral Air), in Queens. After the accident, the plaintiff commenced this action to recover damages for personal injuries. The defendants moved, inter alia, for summary judgment dismissing the complaint, contending that the storm in progress rule applied. The Supreme Court granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint. The plaintiff appeals.Here, as the proponents of the motion for summary judgment, the defendants had the burden of establishing, prima facie, that they neither created the ice condition nor had actual or constructive notice of the condition (see Ryan v. Taconic Realty Assoc., 122 AD3d 708, 709; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839; Meyers v. Big Six Towers, Inc., 85 AD3d 877). This burden may be satisfied by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell (see Huan Nu Lu v. New York City Tr. Auth., 113 AD3d 818, 819; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d at 839-840). ”Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v. Skenderi, 51 AD3d 642, 642; see Solazzo v. New York City Tr. Auth., 6 NY3d 734, 735; Dylan v. CEJ Props., LLC, 148 AD3d 1115, 1116; Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649).Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law based on the storm in progress rule (see generally McBryant v. Pisa Holding Corp., 110 AD3d 1034). In support of their motion, the defendants submitted a copy of the transcript of the plaintiff’s deposition, at which she testified that light rain began to fall about 15 minutes prior to her accident, and that no precipitation fell the day before the accident. The defendants also submitted a copy of the transcript of the deposition of the office manager for Admiral Air, who testified that she had no recollection of the weather conditions on the day of the accident. The office manager also did not know when the sidewalk was last inspected or what it looked like within a reasonable time prior to the accident. The defendants also submitted video footage and screen shots from a security camera, but this evidence was not probative because it did not clearly depict the surface where the plaintiff slipped. Finally, the defendants submitted a climatological analysis report which was not signed and notarized, and therefore not admissible (see Wei Wen Xie v. Ye Jiang Yong, 111 AD3d 617, 618-619).The defendants submitted a signed and notarized climatological analysis report with their reply papers. However, the Supreme Court should not have considered that report, as it was improperly submitted for the first time with the reply papers (see Poole v. MCPJF, Inc., 127 AD3d 949; Damas v. Valdes, 84 AD3d 87, 96). Accordingly, the defendants failed to establish, prima facie, that the storm in progress rule applied and that the ice upon which the plaintiff slipped was the result of an ongoing storm. Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.Felice Lupton, ap, v. Richard Pedersen, def, Michael Galant, res — (Index No. 150530/15)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated June 29, 2016, as searched the record and awarded summary judgment to the defendant Michael Galant dismissing the complaint insofar as asserted against him.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff was employed as a paraprofessional at Public School 4 in Staten Island. On June 20, 2012, she allegedly injured her knee when she slipped and fell on a wet floor in the school cafeteria. She received Workers’ Compensation benefits with respect to this injury.On June 12, 2015, the plaintiff commenced this negligence action against Richard Pedersen, the school’s custodian engineer, and Michael Galant, a custodial assistant. Pedersen moved for summary judgment dismissing the complaint insofar as asserted against him, contending, inter alia, that the action was barred by the exclusivity provision of the Workers’ Compensation Law. The Supreme Court granted Pedersen’s motion, and searched the record and also awarded summary judgment to Galant dismissing the complaint insofar as asserted against him. The plaintiff appeals from so much of the order as awarded summary judgment to Galant dismissing the complaint insofar as asserted against him.In general, Workers’ Compensation benefits are an employee’s exclusive remedy against an employer for damages sustained from injury in the course of employment (see Workers’ Compensation Law §§11, 29[6]; see generally Derosas v. Rosmarins Land Holdings, LLC, 148 AD3d 988). This limitation of an employer’s liability also applies to “another in the same employ” as the injured employee (Workers’ Compensation Law §29[6]).Here, the New York City Department of Education (hereinafter DOE) employed Pedersen as a custodian engineer. As part of an “indirect system” of employment adopted by the DOE, Pedersen then employed Galant as a custodial assistant. Because the plaintiff was a DOE employee and Galant was employed by Pedersen, who also was a DOE employee, the plaintiff and Galant were “in the same employ” within the meaning of the Workers’ Compensation Law (Workers’ Compensation Law §29[6]; see Lane v. Flack, 73 AD2d 65, 66, affd 52 NY2d 856; DeGiuseppe v. City of New York, 188 Misc 897, 898 [Sup Ct, Kings County], affd 273 AD 1010). Therefore, Workers’ Compensation benefits were the plaintiff’s exclusive remedy with respect to Galant (see Workers’ Compensation Law §§11, 29[6]).The plaintiff’s remaining contention is without merit.Accordingly, the Supreme Court properly awarded summary judgment to Galant dismissing the complaint insofar as asserted against him.In light of our determination, we need not address Galant’s contentions that the plaintiff’s action is barred insofar as asserted against him pursuant to General Municipal Law §50-k.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.MATTER of Nsongurua N. (Anonymous). Dutchess County Department of Community and Family Services, res; Nsikak O. (Anonymous), ap — (Docket No. N-6116-14)Appeal from an order of fact-finding and disposition of the Family Court, Dutchess County (Joan S. Posner, J.), entered November 9, 2016. The order, insofar as appealed from, after a fact-finding hearing, found that the father neglected the subject child.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.The subject child began living with the father in August or September 2013, when she was almost 12 years old. The petitioner commenced this neglect proceeding pursuant to Family Court Act article 10 against the father in November 2014, after the child was temporarily removed from the father’s care. Following a fact-finding hearing, the Family Court found that the father neglected the child by, among other things, inflicting excessive corporal punishment upon her and failing to seek medical treatment for the child, who suffered from chronic bed wetting for over a year while in his care.Pursuant to Family Court Act §1046(b)(i), the petitioner has the burden of establishing neglect by a preponderance of the evidence (see Nicholson v. Scoppetta, 3 NY3d 357, 368; Matter of Laequise P. [Brian C.], 119 AD3d 801, 802). Although a parent has the right to use reasonable physical force against a child to maintain discipline or promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (see Matter of Laequise P. [Brian C.], 119 AD3d at 802; Matter of Anastasia L.-D. [Ronald D.], 113 AD3d 685; Matter of Matthew M. [Fatima M.], 109 AD3d 472, 473). To establish neglect based upon a parent’s failure to provide adequate medical care, a petitioner must prove that the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care though financially able to do so (see Family Ct Act §§1012[f][i][A]; 1046; Matter of Alanie H., 83 AD3d 1066; see also Matter of Shawndel M., 33 AD3d 1006; Matter of Faridah W., 180 AD2d 451).Here, the Family Court’s finding of neglect is supported by a preponderance of the evidence. The child’s out-of-court statements describing the father’s excessive corporal punishment of her were sufficiently corroborated by the testimony of a caseworker and a police investigator, who observed scars and lacerations on the child’s body consistent with the child’s statements (see Matter of Francini C. [Yasmin P.], 112 AD3d 532; Matter of Dareth O., 304 AD2d 667). Further, the father admitted that the child suffered from chronic bed wetting for over a year while in his care, and that he failed to seek medical treatment for her condition. Instead, the father attempted to manage the child’s symptoms by having her sleep on the kitchen floor of his home, where he could watch her, and waking her up periodically throughout the night. Under the circumstances, the father’s actions were unreasonable and inappropriate and placed the child in imminent danger of suffering physical, mental, or emotional harm.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.MATTER of Tyshaun M. M. (Anonymous), etc. MercyFirst, res; Niamih M. (Anonymous), ap — (Proceeding No. 1)MATTER of Anastasia R. D. (Anonymous), etc. MercyFirst, res; Niamih M. (Anonymous), ap — (Proceeding No. 2)MATTER of Adrian D. D. (Anonymous), etc. MercyFirst, res; Niamih M. (Anonymous), ap — (Proceeding No. 3) (Docket Nos. B-18264-14, B-18265-14, B-18266-14)Kenneth M. Tuccillo, Hastings-on-Hudson, NY, for appellant.Warren & Warren, P.C., Brooklyn, NY (Ira L. Eras of counsel), for respondent.Ralph R. Carrieri, Mineola, NY, attorney for the children.Appeals from three orders of fact-finding and disposition of the Family Court, Kings County (Ilana Gruebel, J.) (one as to each child), all dated July 28, 2016. The orders, after fact-finding and dispositional hearings, found that the mother had permanently neglected the subject children and transferred the guardianship and custody of the children to the Commissioner of the Administration for Children’s Services of the City of New York and MercyFirst for the purpose of adoption.ORDERED that the orders of fact-finding and disposition are affirmed, without costs or disbursements.The appellant (hereinafter the mother) is the mother of three children: Tyshaun, born in 2004, and Anastasia and Adrian, born in 2008. All three children were placed with the Commissioner of the Administration for Children’s Services (hereinafter the Commissioner) on July 28, 2011, and placed with MercyFirst (hereinafter the petitioner) on the same day for foster care. In 2014, the petitioner filed petitions to terminate the mother’s parental rights with respect to each of the children.The Family Court properly found that the petitioner established by clear and convincing evidence that the mother permanently neglected the children (see Social Services Law §384-b[7][a]). The petitioner presented evidence that it made diligent efforts to encourage and strengthen the parental relationship by, inter alia, providing the mother with referrals to various drug treatment programs (see Matter of Jemel M.A. [Elizabeth C.B.A.], 122 AD3d 622, 623; Matter of Elijah D.W. [Tamica S.E.], 118 AD3d 812, 813; Matter of Amonte M. [Mary M.], 112 AD3d 937, 938). Despite these efforts, the mother failed over several years to address the primary obstacle to her reunification with the children by completing a drug treatment program (see Matter of Chanel C. [Vanessa N.], 118 AD3d 826, 827-828; Matter of John M. [Raymond K.], 82 AD3d 1100, 1100-1101; Matter of Malen Sansa V. [Nancy J.], 70 AD3d 707, 708; Matter of Jada Ta-Toneyia L., 66 AD3d 901, 902; Matter of Fatima G., 64 AD3d 653, 654).Contrary to the mother’s contention, there is no evidence in the record that the Family Court either prejudged the case, or applied incorrect legal standards in rendering its dispositional order. Similarly, the court properly considered the current special needs of Tyshaun, and the lack of feasibility of the alternative placement proposed by the mother. Furthermore, the court properly determined that it was in the best interests of the children to transfer the custody and guardianship of the children to the Commissioner and the petitioner (see Matter of Clair E.F. [Benjamin F.---Karen M.], 122 AD3d 847, 847; Matter of Darryl A.H. [Olga Z.], 109 AD3d 824, 825; Matter of W.J. [B.J.], 99 AD3d 711, 712; Matter of Kyshawn F. [Nellie M.-F.], 95 AD3d 883, 885; Matter of Anthony R. [Juliann A.], 90 AD3d 1055, 1055).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of Serenity C. W. (Anonymous). Westchester County Department of Social Services, res; Antoinette W. (Anonymous), ap — (Docket No. B-564-16)William Martin, White Plains, NY, for appellant.John M. Nonna, County Attorney, White Plains, NY (James Castro-Blanco and Allison E. Burke of counsel), for respondent.Karen M. Jansen, White Plains, NY, attorney for the child.Appeal from an order of fact-finding and disposition of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated March 30, 2017. The order, after fact-finding and dispositional hearings, and upon the mother’s failure to appear at the fact-finding hearing, found that the mother permanently neglected the subject child, terminated her parental rights, and transferred custody and guardianship of the subject child to the petitioner for the purpose of adoption.ORDERED that the appeal from so much of the order of fact-finding and disposition as found that the mother permanently neglected the subject child is dismissed, without costs or disbursements, as no appeal lies from that portion of the order which was entered on the mother’s default (see Matter of Vanessa M., 263 AD2d 542); and it is further,ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.The petitioner commenced this proceeding to terminate the mother’s parental rights to the subject child. At a fact-finding hearing, the mother initially appeared with her assigned counsel and requested an adjournment. After the Family Court denied the adjournment request, but before the commencement of the fact-finding hearing, the mother voluntarily left the court room and refused to return. The court then proceeded with the hearing, and the mother’s assigned counsel did not participate in her absence. Thus, the mother defaulted at the fact-finding hearing, and she may not challenge on this appeal that portion of the order of fact-finding and disposition which found that she permanently neglected the child (see Matter of Dupree J.P. [Richard P.], 128 AD3d 967; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d 657, 657-658).Contrary to the mother’s contention, the Family Court providently exercised its discretion in denying her request for an adjournment of the fact-finding hearing in order to retain private counsel. ”The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907). ”In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 AD3d 651, 651; see Matter of Tripp, 101 AD3d 1137). Here, the fact-finding hearing was scheduled well in advance, and the mother proffered no explanation as to her delay in retaining private counsel (see Matter of Cabral v. Cabral, 61 AD3d 863, 863-864). Moreover, the court took into consideration the effect an adjournment would have on the child, who had been in foster care for the past four years, and whose right to permanency and stability would be unduly delayed.The Family Court properly found, by a preponderance of the evidence introduced at the dispositional hearing, at which the mother appeared, that it was in the child’s best interests to terminate the mother’s parental rights and free the child for adoption by her foster parents (see Matter of Star Leslie W., 63 NY2d 136, 148).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.PEOPLE, etc., res, v. Sandino Campbell, ap — (Ind. No. 1461/10)Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Alan Honorof, J.), rendered April 28, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant contends that the verdict was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s contention that he was deprived of the effective assistance of counsel because his attorney failed to request an accomplice charge as to one of the witnesses is without merit. Counsel will not be deemed ineffective for failing to pursue an argument that has little or no chance of success (see People v. Flowers, 28 NY3d 536, 541; People v. Ennis, 11 NY3d 403, 415; People v. Caban, 5 NY3d 143, 152). There was no basis for the Supreme Court to give an accomplice charge because there is no evidence in the record which would support a finding that the witness was an accomplice. Therefore, counsel was not ineffective for failing to request such a charge (see People v. White, 26 NY2d 276; People v. Jackson, 277 AD2d 915). Moreover, the evidence, the law, and the circumstances of the case, viewed in totality and as of the time of the representation, reveal that trial counsel provided meaningful representation (see People v. Baldi, 54 NY2d 137, 146-147).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The remaining contention raised in the defendant’s main brief is unpreserved for appellate review and, in any event, without merit.The defendant’s contention in his pro se supplemental brief that the People failed to timely serve sufficient CPL 710.30 notice is unpreserved for appellate review. In any event, this contention is without merit, since the People timely served the defendant with proper notice pursuant to CPL 710.30 and, even in the absence of such notice, the statutory exception to the rule requiring preclusion of the subject identification evidence would have applied, as the defendant moved for suppression of the identification evidence and that motion was denied (see CPL 710.30[3]; People v. Amparo, 73 NY2d 728). The defendant’s contention that counsel was ineffective for failing to raise an issue as to the timeliness and sufficiency of the CPL 710.30 notice is also without merit.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Steven Glickman, ap — (Ind. No. 1392/06)Appeal by the defendant, as limited by his motion, from an amended sentence of the County Court, Putnam County (James F. Reitz, J.), imposed November 15, 2016, revoking a sentence of probation previously imposed by the Supreme Court, Westchester County (Rory J. Bellantoni, J.), upon a finding that he violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of rape in the third degree.ORDERED that the amended sentence is affirmed.Under the circumstances of this case, the defendant’s purported waiver of his right to appeal, given at the time of his plea of guilty, did not preclude review of his claim that the amended sentence imposed upon his violation of conditions of his probation was excessive (see People v. Yodice, 153 AD3d 1373). Nevertheless, the amended sentence was not excessive (see People v. Suitte, 90 AD2d 80).CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of Bella S. (Anonymous). Administration for Childrens Services, petitioner- res; Sarah S. (Anonymous), ap, et al., res — (Docket No. N-27073-15)Catherine S. Bridge, Staten Island, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Julie Steiner of counsel), for petitioner-respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler, Sara H. Reisberg, and Amy Serlin of counsel), attorney for the child.Appeal from an order of fact-finding of the Family Court, Kings County (Alan Beckoff, J.), dated September 15, 2016. The order, after a fact-finding hearing, found that the mother neglected the subject child.ORDERED that the order of fact-finding is reversed, on the law, without costs or disbursements, the petition is denied insofar as asserted against the mother, the proceeding is dismissed insofar as asserted against her, and an order of disposition of the same court dated November 16, 2016, is vacated.The petitioner commenced this proceeding pursuant to Family Court Act article 10 on October 22, 2015, following the subject child’s birth on September 15, 2015. The petition alleged that the mother had been diagnosed with bipolar disorder and other mental illness for which she was not receiving adequate mental health treatment, and that she was observed to be “manic” and suffering from “mood swings” while visiting with the child in the hospital following the child’s birth. After a hearing, the Family Court issued an order of fact-finding in which it found that the mother neglected the child by failing to obtain mental health treatment other than taking medication prescribed to her by a psychiatrist, whom the court described as operating a “prescription mill.” The mother appeals.In a child protective proceeding, the burden is on the petitioner to prove neglect or abuse by a preponderance of the evidence (see Family Ct Act §1046[b][i]). ”‘A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness’” (Matter of Alexis S.G. [Shanese B.], 107 AD3d 799, 799, quoting Matter of Soma H., 306 AD2d 531, 531; accord Matter of Nialani T. [Elizabeth B.], 125 AD3d 672, 674). ”‘Proof of ongoing mental illness and the failure to follow through with aftercare medication’” is a sufficient basis for a finding of neglect where such failure “‘results in a parent’s inability to care for [his or] her child in the foreseeable future’” (Matter of Nialani T. [Elizabeth B.], 125 AD3d at 674, quoting Matter of Essence, 283 AD2d 652, 653). ”However, ‘proof of mental illness alone will not support a finding of neglect’; the evidence ‘must establish a causal connection between the parent’s condition, and actual or potential harm to the child[ ]‘” (Matter of Alexis S.G. [Shanese B.], 107 AD3d at 799, quoting Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640; accord Matter of Jonathan H. [Tamika Q.], 156 AD3d 786; Matter of Nialani T. [Elizabeth B.], 125 AD3d at 674; see Matter of Tomieke Y., 32 AD3d 1041, 1042; Matter of Soma H., 306 AD2d 531).Here, the petitioner failed to establish that the mother received inadequate psychiatric treatment for her mental illness, or that her alleged untreated mental illness placed the child at imminent risk of harm. The evidence demonstrated that the mother, who was homeless at the time that she became pregnant and had relapsed into using heroin just a few months earlier, managed to obtain housing at a shelter for high-risk pregnant women, sought out appropriate prenatal care which included visits with a social worker, maintained compliance with a methadone treatment program which included weekly counseling sessions, and regularly took the psychotropic medications that were being prescribed to her by a licensed psychiatrist. The evidence also indicated that the mother interacted appropriately with the child in the hospital following the child’s birth (cf. Matter of Jonathan H. [Tamika Q.], 156 AD3d 786; Matter of Jemima M. [Aura M.], 151 AD3d 862). The petitioner failed to present competent medical evidence that the treatment the mother was receiving failed to address her mental health needs or was otherwise improper in light of her mental health history (see Matter of Joseph A. [Fausat O.], 91 AD3d at 640).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Bank of New York Mellon, etc., res, v. Bernil Lopes appellants def — (Index No. 13346/12)Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated June 29, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Bernil Lopes and Beverly Lopes and for an order of reference.ORDERED that the order is affirmed insofar as appealed from, with costs.The defendants Bernil Lopes and Beverly Lopes (hereinafter together the defendants) executed a note dated September 2, 2005, in the sum of $395,000, in favor of Countrywide Home Loans, Inc. (hereinafter Countrywide). The note was secured by a mortgage on residential property located in South Floral Park. The mortgage was later assigned by Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide, to the plaintiff, Bank of New York Mellon.In October 2012, the plaintiff commenced this action to foreclose the mortgage. The defendants served an answer in which they asserted various affirmative defenses, including that the plaintiff lacked standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion. The Supreme Court granted the motion, and the defendants appeal.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 AD3d 687, 688-689). Where a plaintiff’s standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; U.S. Bank, N.A. v. Noble, 144 AD3d 786, 787; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753-754). ”Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726 [internal quotation marks omitted]; see U.S. Bank N.A. v. Saravanan, 146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861, 862).Here, the plaintiff established, prima facie, that it had standing to commence the action by submitting the affidavit of a foreclosure specialist for the loan servicer, who stated that, based upon her review of the records for the subject loan, the plaintiff was the holder of the original note prior to commencement of the action, and that the note was delivered to the plaintiff prior to commencement of the action. The plaintiff also submitted a copy of the note containing an endorsement in blank by Countrywide, the original lender (see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890; Bank of Am., N.A. v. Barton, 149 AD3d 676, 678). Moreover, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the note, the mortgage, and evidence of default. Contrary to the defendants’ contention, the plaintiff demonstrated the admissibility of the business records upon which the foreclosure specialist relied under the business records exception to the hearsay rule (see CPLR 4518[a]), because she averred in her affidavit that she had personal knowledge of the plaintiff’s records and record-making practices (cf. HSBC Mtge. Servs., Inc. v. Royal, 142 AD3d 952, 954; U.S. Bank N.A. v. Handler, 140 AD3d 948, 949).In opposition, the defendants failed to raise a triable issue of fact.The defendants’ remaining contentions are without merit.Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.PEOPLE, etc., plf, v. Edwin Aviles, Jr., def — (Ind. No. 15-00065)Application by the defendant for a writ of error coram nobis seeking leave to file a late notice of appeal from a judgment of the County Court, Orange County, rendered January 23, 2017.ORDERED that the application is denied.The defendant has not established his entitlement to the relief requested (see People v. Syville, 15 NY3d 391).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Miller, Duffy and Connolly, JJ.MATTER of State of New York, res, v. Hilton C. (Anonymous), ap — (Index No. 5/14)Appeal from an order of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), entered February 26, 2015. The order, upon a finding, made after a jury trial, that the appellant suffers from a mental abnormality as defined in Mental Hygiene Law §10.03(i), and upon a determination, made after a dispositional hearing, that he is a sex offender requiring civil confinement, granted the petition pursuant to Mental Hygiene Law article 10 and directed that the appellant be subject to a regimen of strict and intensive supervision and treatment. By decision and order dated June 29, 2016, this Court remitted the matter to the Supreme Court, Nassau County, for the purpose of conducting a Frye hearing (see Frye v. United States, 293 F 1013 [DC Cir]) to resolve the question of whether the diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible, and thereafter to report to this Court, and held the appeal in abeyance in the interim (see Matter of State of New York v. Hilton C., 140 AD3d 1176). The Supreme Court, Nassau County, has now filed its report.ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of mental abnormality, excluding evidence of the unspecified paraphilic disorder diagnosis, and, if necessary, a new dispositional hearing.In March 2014, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. Prior to trial, after two psychologists evaluated the appellant at the State’s request and issued reports in which they diagnosed the appellant as suffering from, among other things, “unspecified paraphilic disorder,” the appellant moved for a Frye hearing (see Frye v. United States, 293 F 1013 [DC Cir]) to determine whether the diagnosis of unspecified paraphilic disorder had achieved general acceptance in the psychiatric and psychological communities. The Supreme Court denied the appellant’s motion. After a jury trial, the appellant was found to suffer from a “mental abnormality” as that phrase is defined in Mental Hygiene Law §10.03(i). At the conclusion of a dispositional hearing, the court determined that the appellant is currently a sex offender requiring strict and intensive supervision.The appellant appeals from an order granting the petition and directing that he be subject to a regimen of strict and intensive supervision, arguing, among other things, that the Supreme Court erred in denying his motion for a Frye hearing. In a decision and order dated June 29, 2016, we held the appeal in abeyance and remitted the matter to the Supreme Court, Nassau County, for the purpose of conducting “a Frye hearing to resolve the question of whether the diagnosis of ‘unspecified paraphilic disorder’ has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible, and thereafter to report to this Court with all convenient speed” (Matter of State of New York v. Hilton C., 140 AD3d 1176, 1178).Upon completion of the Frye hearing, the Supreme Court determined that the State established that the diagnosis of unspecified paraphilic disorder was generally accepted in the psychiatric and psychological communities and that testimony regarding that diagnosis was properly admitted at the appellant’s trial. The parties submitted supplemental briefing to this Court on the issue of, inter alia, the Supreme Court’s Frye determination. We now reverse and remit for a new trial.Initially, contrary to the appellant’s contention, the verdict was supported by legally sufficient evidence since there was a valid line of reasoning by which the jury could conclude that the appellant suffered from a mental abnormality as defined in Mental Hygiene Law §10.03(i), and the verdict was not contrary to the weight of the evidence, as it was supported by a fair interpretation of the evidence (see Matter of State of New York v. Dennis K., 27 NY3d 718, 751; Matter of State of New York v. Shannon S., 20 NY3d 99, 107-108). However, we conclude that reversal is required since, contrary to the Supreme Court’s determination at the conclusion of the Frye hearing, the State failed to establish on this record that the diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible.New York courts permit expert testimony based on scientific principles or procedures only after the principle, procedure, or theory has gained general acceptance in the relevant scientific field (see People v. Wesley, 83 NY2d 417, 422; Frye v. United States, 293 F 1013). Under the Frye standard, the burden of proving general acceptance rests upon the party offering the disputed expert testimony (see Cumberbatch v. Blanchette, 35 AD3d 341, 342-343; Zito v. Zabarsky, 28 AD3d 42, 44). The test of reliability is “not whether a particular procedure is unanimously indorsed by the scientific community, but whether it is generally acceptable as reliable” (People v. Middleton, 54 NY2d 42, 49). ”Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with whether the [expert's] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” (Lipschitz v. Stein, 65 AD3d 573, 576 [internal quotation marks omitted]). The Frye test asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v. Wesley, 83 NY2d at 422; see People v. Wernick, 89 NY2d 111, 115-116).At the Frye hearing, Dr. David Thornton and Dr. Kostas Katsavdakis, who testified for the State, and Dr. Joe Scroppo, who testified on behalf of the appellant, agreed that the forensic use of the diagnosis of unspecified paraphilic disorder, which was added to the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM-5) in 2013, was problematic and controversial, since there was no clear definition or criteria for the proposed disorder. Moreover, all of the experts testified that there was no research demonstrating the reliability of the unspecified paraphilic disorder diagnosis after its introduction in the DSM-5 in 2013. Notably, the experts were not aware of any published research, clinical trials, or field studies regarding unspecified paraphilic disorder.Accordingly, we conclude that the State failed to establish that the diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible, and as such, that diagnosis should not have been admitted at the appellant’s trial. Since the admission of this testimony was not harmless, we remit the matter to the Supreme Court, Nassau County, for a new trial on the issue of mental abnormality, excluding evidence of the unspecified paraphilic disorder diagnosis, and, if necessary, a new dispositional hearing.In light of our determination, we need not reach the appellant’s remaining contentions.LEVENTHAL, J.P., MILLER, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.MATTER of Danielle Parascondola, ap, v. Michael Romano, res — (Docket Nos. V-26286-10/16W, V-26287-10/16W, V-26771-10/16W, V-26772-10/16W)Appeals from two orders of the Family Court, Kings County (Sharon A. Bourne-Clarke, J.), both dated April 7, 2017. The first order dismissed, without a hearing, the mother’s petition to modify an order of custody and visitation of that court (Karen Finkel Wohlforth, Ct. Atty. Ref.) dated July 26, 2011, so as to permit her to relocate with the parties’ children to Florida. The second order granted the father’s cross motion to dismiss the mother’s petition to modify the order of custody and visitation dated July 26, 2011, so as to permit her to relocate with the parties’ children to Florida and for an award of costs and attorney’s fees pursuant to 22 NYCRR 130-1.1 in the sum of $2,500, and dismissed, without a hearing, the mother’s petition.ORDERED that the appeal from the first order dated April 7, 2017, is dismissed, without costs or disbursements, as that order was superseded by the second order dated April 7, 2017; and it is further,ORDERED that the second order dated April 7, 2017, is modified, on the law, by deleting the provision thereof granting that branch of the father’s cross motion which was for an award of costs and attorney’s fees, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.The parties, who were never married to each other, are the parents of two children, both born on August 7, 2010. In an order of custody and visitation dated July 26, 2011, the Family Court awarded the mother sole custody of the children. In December 2013, the mother filed a petition to modify the order of custody and visitation so as to permit her to relocate with the children to Florida. Following a hearing, in an order dated January 30, 2015, the Family Court denied the mother’s petition. In October 2016, the mother filed a second petition to modify the order of custody and visitation so as to permit her to relocate with the children to Florida. The father cross-moved to dismiss the mother’s second petition and for an award of costs and attorney’s fees pursuant to 22 NYCRR 130-1.1. The Family Court granted the father’s cross motion and dismissed the mother’s second petition without a hearing. The mother appeals.Under the circumstances presented, the Family Court providently exercised its discretion in declining to hold a hearing prior to dismissing the mother’s second petition, as the facts alleged in the second petition were insufficient to meet the threshold evidentiary showing of a change in circumstances. The matters raised in the second petition were not new, but had been brought to the court’s attention in the mother’s previous petition (see Matter of Perez v. Richmond, 148 AD3d 904; Matter of Scott v. Powell, 146 AD3d 964, 965). Therefore, the court properly granted that branch of the father’s cross motion which was to dismiss the mother’s petition and dismissed, without a hearing, the mother’s petition.However, in granting that branch of the father’s cross motion which was for an award of costs and attorney’s fees, the Family Court did not comply with the dictates of 22 NYCRR 130-1.2. While the mother’s conduct may have been frivolous, the court did not set forth the reasons why it found the mother’s conduct to be frivolous, or the reasons why the award was appropriate (see Vogel v. Vogel, 128 AD3d 681, 685; Matter of Nathan F.T. [Nathan H.], 110 AD3d 820, 821; Matter of Katz v. Shomron, 71 AD3d 770). Accordingly, that branch of the father’s cross motion which was for costs and attorney’s fees pursuant to 22 NYCRR 130-1.1 must be denied.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.MATTER of Blauvelt Mini-Mall, Inc., ap, v. Town of Orangetown, etc. res — (Index Nos. 33563/12, 33435/13, 32945/14, 32852/15)In four related proceedings pursuant to Real Property Tax Law article 7 to review the tax assessments for six separate parcels of real property for the tax years 2012 to 2015, the petitioner appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated December 22, 2015, which denied its motion for leave to discontinue the proceedings as to five of the six parcels of land, and, sua sponte, directed that the six parcels be merged into a single tax lot.ORDERED that on the Court’s own motion, the appeal from so much of the order as, sua sponte, directed that the six parcels be merged into a single tax lot is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing that the six parcels be merged into a single lot; as so modified, the order is affirmed, with costs to the respondents.The petitioner owns a shopping center situated on multiple contiguous lots in the Town of Orangetown. The 1992 site plan approval for the shopping center required that certain parcels be merged together to form one lot, but evidently, formal steps to effectuate the merger were never taken. The petitioner filed petitions pursuant to Real Property Tax Law article 7 challenging the annual assessments for six separate, contiguous parcels of real property for the years 2012 to 2015. After the court issued a   directing the exchange of trial appraisals and a trial date, the petitioner moved for leave to discontinue the proceedings as to five of the six parcels, claiming that those five parcels were underassessed by the Town in order to justify the Town’s excessive assessment of the sixth parcel. In response, the Town asserted that the sixth parcel, lot 36, did receive a disproportionately high assessment “[f]or convenience to everyone”; however, the petitioner was not harmed because the remaining parcels were undervalued and the entire shopping center situated on the parcels was treated as one economic unit. It argued that it would be prejudiced if the petitioner’s motion was granted because the six parcels were a single economic unit for tax purposes. The Supreme Court denied the petitioner’s motion, and, sua sponte, directed that the six parcels be merged into a single tax lot.A motion for leave to discontinue an action is addressed to the sound discretion of the court (see Tucker v. Tucker, 55 NY2d 378; Turco v. Turco, 117 AD3d 719; GMAC Mtge., LLC v. Bisceglie, 109 AD3d 874), and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results (see Marinelli v. Wimmer, 139 AD3d 914; Jamaica Hosp. Med. Ctr., Inc. v. Oxford Health Plans [NY], Inc., 58 AD3d 686; Kaplan v. Village of Ossining, 35 AD3d 816; DuBray v. Warner Bros. Records, 236 AD2d 312).In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding (see Matter of Catherine Commons, LLC v. Town of Orangetown, __ AD3d __, 2018 NY Slip Op 00287 [2d Dept 2018]), and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. ”Generally, a court may, in its discretion, ‘grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party’” (Clair v. Fitzgerald, 63 AD3d 979, 980, quoting Frankel v. Stavsky, 40 AD3d 918, 918-919; see Matter of Myers v. Markey, 74 AD3d 1344, 1345). Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Benito Lijo, ap — (Ind. No. 1319/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (John G. Ingram, J.), rendered February 11, 2014, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and a new trial is ordered.The defendant struck the complainant with a cane during an altercation between himself and the complainant and her husband. After a jury trial, in which the defendant presented a justification defense, the defendant was convicted of assault in the second degree.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to disprove the defendant’s justification defense beyond a reasonable doubt (see Penal Law §35.15; People v. Acquista, 41 AD3d 491, 492; People v. Suphal, 7 AD3d 547; People v. Williams, 304 AD2d 595). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).However, a new trial is required because the trial court erroneously declined the defendant’s request that the jury be instructed that it could consider the actions of the complainant’s husband in determining whether the defendant’s use of force was justified (see People v. Locicero, 87 AD3d 1163, 1164; People v. Morgan, 290 AD2d 566, 566-567). Contrary to the People’s contention, the error cannot be deemed harmless, as the evidence to establish that the defendant was not justified was not overwhelming, and the jury may have reached a different conclusion had a proper and complete justification instruction been given (see People v. Crimmins, 36 NY2d 230, 241-242; People v. Locicero, 87 AD3d at 1164-1165; People v. Morgan, 290 AD2d at 567). Significantly, the defendant’s case rested on finding that he was justified in responding to the actions of the complainant’s husband (see People v. Morgan, 290 AD2d at 567).In light of our determination, we need not reach the defendant’s remaining contentions.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.PEOPLE, etc., res, v. Gerson Luna, ap — (Ind. No. 1287/15)Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (John LaTella, J.), rendered January 28, 2016, convicting him of criminal possession of a forged instrument in the second degree (two counts), grand larceny in the fourth degree (two counts), and unlawful possession of personal identifying information in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial by allegedly improper remarks made by the Supreme Court to the prospective jurors during voir dire (see CPL 470.05[2]; People v. Dudley, 151 AD3d 878, 879; People v. Sutton, 151 AD3d 763, 766; People v. Mason, 132 AD3d 777, 779; People v. Cunningham, 119 AD3d 601, 601). Contrary to the defendant’s contention, the court’s alleged misconduct did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 NY3d 880, 881; People v. Dudley, 151 AD3d at 879; People v. Sutton, 151 AD3d at 766; People v. Mason, 132 AD3d at 779; People v. Cunningham, 119 AD3d at 601-602). In any event, the court’s remarks to the prospective jurors do not warrant reversal (see People v. Dudley, 151 AD3d at 879; People v. Sutton, 151 AD3d at 766; People v. Mason, 132 AD3d at 779).The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.PEOPLE, etc., res, v. Ronnie Scott, ap — (Ind. No. 291-15)Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Timothy Sini, District Attorney, Riverhead, NY (Marion Tang of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Suffolk County (Martin Efman, J.), rendered December 16, 2015, convicting him of criminal possession of a controlled substance in the first degree and conspiracy in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Since the defendant’s motion to withdraw his plea of guilty was patently insufficient on its face, the County Court providently exercised its discretion in summarily denying it (see People v. Fisher, 28 NY3d 717, 726; People v. Mitchell, 21 NY3d 964, 967; People v. Lopez-Perez, 128 AD3d 1093).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.MATTER of Genting New York, LLC, ap, v. New York City Environmental Control Board, et al., res — (Index No. 10660/15)Appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), dated April 21, 2016. The order and judgment granted the respondents’ cross motion pursuant to CPLR 3211(a)(8) to dismiss the petition for lack of personal jurisdiction, and dismissed the proceeding.ORDERED that the order and judgment is affirmed, with costs.The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the respondent New York City Environmental Control Board dated April 30, 2015, by filing a proposed order to show cause and petition on August 31, 2015, which was the day the statute of limitations expired. By order dated September 11, 2015, the Supreme Court denied the petitioner’s application for an order to show cause finding, inter alia, that the petitioner’s papers were defective. The petitioner filed another order to show cause and an amended petition, which the court signed on September 30, 2015. Thereafter, the petitioner served the respondents with the order to show cause and amended petition.By notice of motion dated November 5, 2015, the respondents cross-moved pursuant to CPLR 3211(a)(8) to dismiss the amended petition on the ground of lack of personal jurisdiction based upon the petitioner’s failure to timely serve the respondents in accordance with CPLR 306-b, which requires, as relevant here, that where the applicable statute of limitations is four months or less, service of the petition with a notice of petition or order to show cause shall be made not later than 15 days after the date on which the applicable statute of limitations expires. The 15-day period in this case expired on September 15, 2015, prior to the date the Supreme Court signed the second order to show cause. The petitioner opposed the cross motion and argued that it complied with CPLR 403(d), which provides that in a special proceeding “the court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein.” The court granted the cross motion on the ground that the petitioner failed to comply with CPLR 306-b, and dismissed the amended petition for lack of personal jurisdiction. The petitioner appeals, and we affirm.Contrary to the petitioner’s contention, the fact that CPLR 403(d) permits a court to grant an order to show cause to be served “in lieu of a notice of petition at a time and in a manner specified therein” does not abrogate the jurisdictional time limit established by CPLR 306-b, and the Supreme Court properly granted the respondents’ cross motion pursuant to CPLR 3211(a)(8) to dismiss the amended petition for lack of personal jurisdiction based upon the petitioner’s failure to comply with CPLR 306-b (see CPLR 306-b; CPLR 403[d]; Waggaman v. Vernon, 123 AD3d 1110, 1111; Matter of Parrino v. New York City Bd. of Stds. & Appeals, 90 AD3d 931; Matter of Eldor Contr. Corp. v. Town of Islip, 277 AD2d 233, 234).To the extent the petitioner now contends that the Supreme Court erroneously denied its informal request for an extension of time to effectuate service of the amended petition pursuant to CPLR 306-b, the issue is not properly before this Court because the petitioner failed to cross-move for such relief before the Supreme Court (see CPLR 2215; DiLacio v. New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 80 AD3d 553, 554; 99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 AD3d 656, 659).ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.Baldwin Route 6, LLC, res, v. Bernad Creations, Ltd., ap — (Index No. 2503/14)In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Putnam County (Lubell, J.), dated June 16, 2015, which denied its motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer.ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendant’s motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer is granted.In December 2014, the plaintiff commenced this action to recover damages for breach of contract. The defendant served its answer on January 22, 2015, which the parties agree was two days after the statutory deadline to answer had expired. After the plaintiff’s counsel rejected the answer as untimely, the defendant moved pursuant to CPLR 2004 to compel the plaintiff to accept its late answer. The Supreme Court denied the defendant’s motion. We reverse.CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” Given the strong public policy favoring the resolution of cases on the merits, “the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists” (Yongjie Xu v. JJW Enters., Inc., 149 AD3d 1146, 1147; see Tewari v. Tsoutsouras, 75 NY2d 1, 12; Calderone v. Molloy Coll., 153 AD3d 491). Here, in light of the defendant’s brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer (see Yongjie Xu v. JJW Enters., Inc., 149 AD3d at 1147; Roy v. 81E98th KH Gym, LLC, 142 AD3d 985, 986; Spence v. Davis, 139 AD3d 703, 704; Klein v. Yeshiva M’kor Chaim, 116 AD3d 672; see also Calderone v. Molloy Coll., 153 AD3d at 491).ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.‌Baldwin Route 6, LLC, respondent, v. BernadCreations, Ltd., appellant.(Index No. 2503/14) ‌Motion by the respondent to strike stated portions of the appellant’s brief and stated portions of the appellant’s reply brief on an appeal from an order of the Supreme Court, Putnam County, dated June 16, 2015, on the ground that they improperly raise arguments for the first time on appeal. By decision and order on motion of this Court dated September 15, 2016, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the motion is granted to the extent that the portion of the appellant’s reply brief which begins on page 13 with the words “[m]oreover, if Baldwin’s argument,” and ends on page 14 with the words “potentially meritorious defense,” is deemed stricken, and has not been considered on the appeal, and the motion is otherwise denied.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.MATTER of Tasheema N. Washington, res, v. Dante D. Washington, ap — (Docket No. O-1247-17)Appeal from an order of protection of the Family Court, Kings County (Javier E. Vargas, J.), dated February 21, 2017. The order of protection, upon a finding that the appellant committed the family offense of harassment in the second degree, made after a fact-finding hearing, directed the appellant, among other things, to stay away from the petitioner until and including February 20, 2018.ORDERED that the order of protection is affirmed, without costs or disbursements.The petitioner and the appellant were married in 2009. In January 2017, the petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, alleging, inter alia, that on two specific occasions, he engaged in threatening conduct and used abusive and intimidating language directed at her. The appellant denied the allegations. Following a fact-finding hearing, the Family Court found that the appellant committed the family offense of harassment in the second degree, and issued an order of protection directing the appellant, among other things, to stay away from the petitioner until and including February 20, 2018.A family offense must be established by a fair preponderance of the evidence (see Family Ct Act §832; M.B. v. L.T., 152 AD3d 475, 476; Matter of Campbell v. Campbell, 123 AD3d 1123, 1124; Matter of Maiorino v. Maiorino, 107 AD3d 717, 717). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Pierre v. Dal, 142 AD3d 1021, 1023; Matter of Maiorino v. Maiorino, 107 AD3d at 717; Matter of Kanterakis v. Kanterakis, 102 AD3d 784, 785). The court’s determination regarding the credibility of witnesses is entitled to great weight on appeal, and will not be disturbed if supported by the record (see Matter of Pierre v. Dal, 142 AD3d at 1023; Matter of Maiorino v. Maiorino, 107 AD3d at 717).Contrary to the appellant’s contentions, the petitioner established, by a fair preponderance of the evidence, that the appellant committed the family offense of harassment in the second degree (see Penal Law §240.26[1], [3]; Family Ct Act §812[1]; Rosenstock v. Rosenstock, 149 AD3d 887, 889; Matter of Sommella v. Kimble, 150 AD3d 1018, 1019; Matter of Salazar v. Melendez, 97 AD3d 754, 755; Matter of Dell’Isola v. Dell’Isola, 19 AD3d 488, 489). The intent to commit harassment in the second degree is properly inferred from the appellant’s threatening conduct and his abusive and intimidating language directed at the petitioner on December 20, 2016, and January 13, 2017, which frightened the petitioner and served no legitimate purpose (see M.B. v. L.T., 152 AD3d at 476; Rosenstock v. Rosenstock, 149 AD3d at 889; Matter of Polizzi v. McCrea, 129 AD3d 733, 734; Matter of Messana v. Messana, 115 AD3d 860, 861; Matter of Salazar v. Melendez, 97 AD3d at 755). The Family Court’s credibility determinations are supported by the record (see Matter of Molina v. Hart, 143 AD3d 723, 724; Matter of Kiani v. Kiani, 134 AD3d 1036, 1038). Accordingly, there is no basis to disturb the order of protection.The appellant’s remaining contentions are without merit.MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Balkin, J.P.; Roman, Hinds-Radix and Lasalle, JJ.MATTER of Dennis X. G. D. v. (Anonymous), ap — (Docket No. G-8613-15)Motion by the appellant, inter alia, for leave to reargue an appeal from an order of the Family Court, Queens County, dated August 22, 2016, which was determined by decision and order of this Court dated August 9, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted to the extent that leave to reargue is granted, and upon reargument, the decision and order of this Court dated August 9, 2017, is recalled and vacated, the following decision and order is substituted therefor, nunc pro tunc to August 9, 2017, and the motion is otherwise denied:Fried, Frank, Harris, Shriver & Jacobson, LLP, New York, NY (Jennifer L. Colyer and Michael P. Sternheim of counsel), for appellant.Appeal by the child from an order of the Family Court, Queens County (Nicolette M. Pach, J.H.O.), dated August 22, 2016. The order, insofar as appealed from, upon renewal and reargument, adhered to the original determination in a prior order of that court dated March 29, 2016, in effect, denying that branch of the child’s motion which was for a specific finding that reunification of the child with one or both of his parents is not viable due to parental neglect.ORDERED that the order dated August 22, 2016, is reversed insofar as appealed from, on the facts, without costs or disbursements, upon renewal and reargument, the determination in the order dated March 29, 2016, in effect, denying that branch of the child’s motion which was for a specific finding that reunification of the child with one or both of his parents is not viable due to parental neglect is vacated, that branch of the motion is granted, it is found that reunification of the child with one or both of his parents is not viable due to parental neglect, and the matter is remitted to the Family Court, Queens County, for the entry of an order making the requisite declaration and specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status, which includes the finding that reunification of the child with one or both of his parents is not viable on the ground of parental neglect.In April 2015, Dennis X.G.D.V. (hereinafter the child) filed a petition pursuant to Family Court Act article 6 for the father to be appointed as his guardian. The child subsequently moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC §1101(a)(27)(J). In an order dated March 29, 2016, made after a hearing, the Family Court found that the child was under 21 years of age, unmarried, and dependent on the court, and that it would not be in his best interests to be returned to El Salvador, his previous country of nationality and last habitual residence. However, the court, in effect, denied that branch of the child’s motion which was for a specific finding that reunification of the child with one or both of his parents is not viable on the ground of parental neglect. Thereafter, the child moved for leave to renew and reargue that branch of his prior motion. In an order dated August 22, 2016, the court, upon renewal and reargument, adhered to the original determination in the order dated March 29, 2016.Pursuant to 8 USC §1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 U.S. Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC §1101[a][27][J][i]; Matter of Marvin E.M. de P. [Milagro C.C---Mario Enrique M.G.], 121 AD3d 892, 893; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC §1101[a][27][J][ii]; 8 CFR 204.11[c][6]; Matter of Marvin E.M. de P. [Milagro C.C.---Mario Enrique M.G.], 121 AD3d at 893; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 795).While the credibility assessment of a hearing court is accorded considerable deference on appeal (see Matter of Arthur G. [Tiffany M.], 112 AD3d 925, 926; Matter of Marte v. Biondo, 104 AD3d 947; Matter of Aranova v. Aranov, 77 AD3d 740, 741), where, as here, the Family Court’s credibility determination is not supported by the record, this Court is free to make its own credibility assessments and overturn the determination of the hearing court (see Matter of Jasmine W. [Michael J.], 132 AD3d 774, 775; Matter of Arthur G. [Tiffany M.], 112 AD3d at 926; Matter of Serenity S. [Tyesha A.], 89 AD3d 737, 739). Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with his mother is not a viable option based upon parental neglect. The record reflects that the mother failed to meet the educational needs of the child (see Matter of Wilson A.T.Z. [Jose M.T.G.---Manuela Z.M.], 147 AD3d 962, 963). The child testified that, although he was prevented from attending school by gang members who beat him while walking to school, the mother did not arrange for transportation, which was within her financial means, but instead, told him to stay home. Additionally, the child was expelled from one school due to excessive tardiness, and he failed the seventh grade (see id.; see also Matter of Kiamal E. [Kim R.], 139 AD3d 1062, 1063; Matter of Justin R. [Gilbert R.], 127 AD3d 758, 759). Further, the mother did not provide adequate supervision, often leaving the then eight-year-old child home alone at night in the neighborhood where he had encountered the gang violence (see Matter of Alan B., 267 AD2d 306, 307).The child’s remaining contentions either are without merit or need not be addressed in light of our determination.Accordingly, the Family Court should have, upon renewal and reargument, granted that branch of the child’s motion which was for a specific finding that reunification with one or both of his parents is not viable on the ground of parental neglect. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect (see Matter of Varinder S. v. Satwinder S., 147 AD3d 854, 856).ROMAN, HINDS-RADIX and LASALLE, JJ., concur.BALKIN, J.P., dissents, and votes to affirm the order insofar as appealed from, with the following memorandaum:Under 8 USC §1101(a)(27)(J), as amended, a “special immigrant” is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court (see Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795). For juveniles to qualify for special immigrant juvenile status, courts must find that their reunification with one or both parents is not viable due to, among other things, parental abuse, neglect, or abandonment, and that it would not be in their best interests to be returned to their native country (see Matter of Marvin E. M. de P. [Milagro C. C.---Mario Enrique M. G.], 121 AD3d 892, 893; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 795; 8 USC §1101[a][27][J]; 8 CFR 204.11[c][6]).Here, the Family Court, upon renewal and reargument, declined to find that the mother abandoned, neglected, or abused the child. The court’s finding rested, in large part, on its determination that the child was not credible. Although we have the power to conduct our own “independent factual review,” we generally accord deference to the Family Court’s credibility determinations and are reluctant to disturb them unless they are clearly unsupported by the record (see Matter of Porter v. Moore, 149 AD3d 1082, 1083; Matter or Andrew R. [Andrew R.], 146 AD3d 709, 710; Matter of Brandon V., 133 AD3d 769, 769-770). I find no basis on this record to reject the court’s credibility determinations, which the court explained in detail, both in its original determination of March 29, 2016, and in its order upon renewal and reargument dated August 22, 2016. Moreover, even aside from the court’s credibility determinations as to the child, I agree with the court’s well-founded conclusion that the mother has always been, and continues to be, a resource for her son.Accordingly, I would affirm that part of the Family Court’s order as declined to find that reunification of the child with his mother is not viable on the basis of neglect, abandonment, or abuse (see Matter of Christian P.S.-A. [Humberto R. S.-B.---Laura S.A.-C.], 148 AD3d 1032, 1034).By Mastro J.P., Leventhal, Sgroi, Connolly, JJ.In the Mater of Xavier Josey, petitioner, v. Steven W. Paynter, etc., et al., respondents.Seymour W. James, Jr., New York, NY (Joshua Norkin, pro se, of counsel), for petitioner.Eric T. Schneiderman, Attorney General, New York, NY (Michael A. Berg of counsel), for respondents Steven W. Paynter and Jerry Iannece.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Jonathan K. Yi of counsel), respondent pro se.Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Steven W. Paynter, a Justice of the Supreme Court, Queens County, to issue a writ of habeas corpus in the nature of pre-trial bail reduction in an action entitled People v. Josey, commenced in the Supreme Court, Queens County, under Indictment No. 178/17.ADJUDGED that the petition is denied as academic and the proceeding is dismissed, without costs or disbursements.The instant proceeding has been rendered academic, as Xavier Josey entered a plea of guilty on November 21, 2017, in satisfaction of all charges pending against him. Contrary to the petitioner’s contention, this case does not warrant the invocation of the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715). Accordingly, the proceeding must be dismissed.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.