2015-737 Q CR. THE PEOPLE v. PACHECO-MIGUEL, HERMENEGIL — Motion by Paul Skip Laisure, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered January 9, 2015, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated December 8, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.SOLOMON, J., taking no part.February 7, 2018By: Pesce, P.J., Weston, Elliot, JJ.2015-1900 Q C. ACUPUNCTURE HEALTHCARE PLAZA I, P.C. v. ALLSTATE INS. CO. — Appeal by plaintiff from an order of the Civil Court of the City of New York, Queens County, entered June 11, 2015. By order to show cause dated December 27, 2017, the appellant and the respondent, or their respective counsel, were directed to show cause before this Court why an order should or should not be made and entered imposing such sanctions and/or costs, if any, against the appellant and the respondent or their respective counsel pursuant to 22 NYCRR 730.3 (f).Now, upon the order to show cause and the papers filed in response thereto, it isORDERED that the motion is denied.Under the circumstances sanctions are not warranted.PESCE, P.J., WESTON and ELLIOT, JJ., concur.February 7, 2018By: Pesce, P.J., Weston, Aliotta, JJ.2016-1014 Q C. EFAPLOMATIDIS v. AIRES MEXICANOS REST. CORP. — Motion by appellants, by order to show cause dated May 30, 2017, for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Queens County, entered April 15, 2016, and for related relief. Separate motion by respondent to vacate the temporary stay contained in the order to show cause dated May 30, 2017, or for alternative relief.Upon the papers filed in support of the motions and the papers filed in opposition thereto, it isORDERED, on the court’s own motion, that the motion by appellants and the motion by respondent are consolidated for purposes of disposition; and it is further,ORDERED that appellant’s motion and respondent’s motion are denied, as the appeal has been determined.By: Weston, J.P., Aliotta, Elliot, JJ.2016-1865 Q CR. THE PEOPLE v. SANSON, ISAAC — Motion by appellant for leave to submit a letter after argument on an appeal from an order of the Criminal Court of the City of New York, Queens County, entered June 24, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.February 7, 20182017-1248 Q CR. THE PEOPLE v. HAO QUAN YE — Motion by appellant for leave to submit a letter after argument on an appeal from an order of the Criminal Court of the City of New York, Queens County, entered May 2, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.February 7, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-2180 RI CR. THE PEOPLE v. AGUILAR, WALTER — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Richmond County, rendered October 6, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and STEVEN A. FELDMAN, ESQ. is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.February 7, 20182017-2191 K CR. THE PEOPLE v. STEPHAN G. (ANONYMOUS) — Motion by appellant for leave to prosecute an appeal from a judgment of the Criminal Court of the City of New York, Kings County, rendered October 19, 2017, as a poor person, for the assignment of counsel, and for an enlargement of time to perfect the appeal.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.February 7, 20182017-2231 K CR. THE PEOPLE v. STEPHAN G. (ANONYMOUS) — Motion by appellant for leave to prosecute an appeal from a judgment of the Criminal Court of the City of New York, Kings County, rendered October 19, 2017, as a poor person, for the assignment of counsel, and for an enlargement of time to perfect the appeal.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.February 7, 20182017-2452 Q CR. THE PEOPLE v. ALMA, NICHOLAS — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered November 1, 2017, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branch of the motion seeking an extension of time to take an appeal is granted and defendant’s moving papers are deemed to constitute a timely notice of appeal; and it is further,ORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and the Legal Aid Society is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with defendant’s sentencing, including the recommendation sheet and any prior reports on defendant which are incorporated or referred to in the report.February 7, 20182018-90 K C. KOTARBA v. BOBROW — Motion by respondent to dismiss an appeal from a judgment of the Civil Court of the City of New York, Kings County, entered April 25, 2017, for failure to prosecute.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the appeal is dismissed.February 7, 2018Ninth and TenthJudical DisTRICTSBy: Garguilo, J.P., Marano, Ruderman, JJ.John R. Lewis, for appellant.Westchester County District Attorney, for respondent (no brief filed).2016-288 W CR. THE PEOPLE v. KIRKLAND, MICHAEL — Appeal from a judgment of the City Court of Mount Vernon, Westchester County (William Edwards, J., at plea; Adrian N. Armstrong, J., at sentence), rendered December 9, 2016. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 8, 2018Scott Lockwood, for appellant.Suffolk County Traffic Prosecutor’s Office (Justin W. Smiloff), for respondent.2016-659 S CR. THE PEOPLE v. GRAY, COURTNIE S. — Appeal from a judgment of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Alan M. Wolinsky, J.H.O.), rendered March 2, 2016. The judgment convicted defendant, after a nonjury trial, of speeding. The appeal brings up for review an order of that court dated February 5, 2016 (Paul H. Senzer, J.H.O.) denying defendant’s motion for a subpoena duces tecum.ORDERED that the judgment of conviction is affirmed.In a simplified traffic information, defendant was charged with speeding (Vehicle and Traffic Law §1180 [b]), in that, on August 7, 2015 at 11:30 a.m., defendant had operated his motor vehicle at a speed of 84 miles per hour in a 55 miles per hour speed zone. It was alleged in the trooper’s supporting deposition that he had visually estimated defendant’s rate of speed at 82 miles per hour. Defendant moved, pursuant to CPLR 2307 and CPL 610.20 (3), for the issuance of a subpoena duces tecum compelling the People to produce calibration and maintenance records of the laser device used to measure the rate of speed of defendant’s vehicle, police training materials regarding speed measurement, written directives governing the maintenance of speed measuring devices and “all documentation showing an observation of personnel operating these devices to verify that officers are [in] compliance with the directives governing such devices.” The court (Paul H. Senzer, J.H.O.) denied the motion.Following a nonjury trial, at which no stenographic minutes were taken, the court (Alan M. Wolinsky, J.H.O.) found defendant guilty of speeding at 82 miles per hour, based upon the trooper’s visual estimate of the speed of defendant’s vehicle, and sentenced defendant to a $450 fine. A surcharge of $88 and an administrative fee of $55 were also imposed. Thereafter, in an affidavit of errors (CPL 460.10 [3]), defendant alleged, among other things, that the court had erred in allowing the trooper to give opinion testimony regarding the rate of speed at which defendant’s vehicle was traveling and in allowing evidence of the laser measuring device since judicial notice had not been taken of its accuracy and there was no documentation establishing that the device was properly calibrated. Additionally, defendant alleged that the court could not impose the administrative fee in the sum of $55 since it is preempted by state law.A subpoena enables a defendant to obtain evidence relevant to the issues that are material to the trial itself (see CPL 610.20 [3]). However, the procedural mechanism of a subpoena duces tecum cannot be used to expand discovery available under existing law (see Matter of Terry D., 81 NY2d 1042, 1045 [1993]), or“to circumvent the discovery provisions of CPL 240.20 [] to ascertain the existence of evidence or to fish for impeaching material. Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. A showing that certain documents carry a potential for establishing relevant evidence is insufficient; instead, a defendant must put forth some factual predicate which would make it reasonably likely that documentary information will bear relevant and exculpatory evidence” (Matter of Constantine v. Leto, 157 AD2d 376, 378 [1990], affd for reasons stated below 77 NY2d 975 [1991] [internal quotation marks and citations omitted]).While under appropriate circumstances a defendant may be entitled to receive records documenting the maintenance and calibration testing of a speed measuring device pursuant to a subpoena duces tecum (see Matter of Constantine v. Leto, 157 AD2d at 378 [1990]; People v. Russo, 149 AD2d 255, 257 [1989]), here, error, if any, was harmless since the trooper’s training in estimating the speed of motor vehicles was established, and visual estimation alone is sufficient to support a conviction, especially when the disparity between the posted limit and the estimated speed of travel is as wide as in the present case (see People v. Olsen, 22 NY2d 230 [1968]). Moreover, “a reading from an untested [laser] device” is admissible and, “coupled with a qualified officer’s visual estimate, suffices to prove the offense” (People v. Palu, 47 Misc 3d 35, 37 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Additionally, the subpoena was overbroad with respect to the remaining information requested therein and constituted a fishing expedition and an attempt to bypass the limits of discovery imposed upon a defendant charged with speeding in a simplified traffic information (see CPL 240.20 [1] [k]; Matter of Constantine v. Solomon, 194 AD2d 538 [1993]; Matter of Constantine v. Leto, 157 AD2d at 378).Contrary to defendant’s remaining contention, the administrative fee in the sum of $55 imposed by the court is authorized and is not preempted by state law. General Municipal Law §370 (3) provides:“There shall be a department of the Suffolk county government known as the Suffolk county traffic and parking violations agency, which shall operate under the direction and control of the county executive.”The administrative fee is authorized pursuant to Code of Suffolk County §§818-77 (A) and 818-78 (2). The administrative fee is not addressed in the Vehicle and Traffic Law, and it does not conflict with an express or an implied provision thereof. Moreover, it is not a penalty imposed as part of a sentence (see People v. Flores, 30 Misc 3d 135[A], 2011 NY Slip Op 50152[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] [Vehicle and Traffic Law §1809 (1) makes it clear that any crime victim assistance fee and mandatory surcharge are levied in addition to, not as part of, the sentence]). Consequently, the $55 administrative fee is not preempted by state law (see generally Guthart v. Nassau County, 55 Misc 3d 827 [Sup Ct, Nassau County 2017]).Accordingly, the judgment convicting defendant of speeding is affirmed.GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 8, 2018The Law Office of Gregory A. Goodman, P.C., (Gregory A. Goodman), for appellant.Law Offices of Daniel J. Tucker, (Daniel J. Tucker, Joshua Goldberg and Netanel BenChaim of counsel), for respondent.2016-1038 S C. CHOICE HEALTH CHIROPRACTIC, P.C. v. AMERICAN TR. INS. CO. — Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated April 19, 2016. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,310.94 is denied; as so modified, the order is affirmed, without costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the District Court as granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.In support of its motion, defendant established that it had timely mailed letters scheduling an initial and follow-up independent medical examination (IME) (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the scheduled IMEs on January 9, 2014 and February 6, 2014 (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s claim for $1,019.62 was received on March 17, 2014 and timely denied, based on the assignor’s failure to appear for IMEs, on April 3, 2014 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123); therefore, plaintiff has failed to establish a basis to disturb the portion of the order which granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim.While defendant did not deny plaintiff’s $1,310.94 claim, which it had received on January 7, 2014, within 30 days of receipt of that claim or of the second IME nonappearance, defendant demonstrated, prima facie, that, upon receipt of that claim, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) and that it had timely denied the claim, based on the assignor’s failure to appear for IMEs, within 30 days of receiving the requested verification (see 11 NYCRR 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, as the affidavit submitted by plaintiff was sufficient to demonstrate the existence of an issue of fact regarding defendant’s mailing of its initial and follow-up requests for written verification, there is an issue of fact as to whether defendant’s time to pay or deny that claim was tolled by virtue of the pending verification requests and, thus, whether defendant’s denial of plaintiff’s $1,310.94 claim was timely. In light of the foregoing, plaintiff’s contention that the branch of its cross motion seeking summary judgment should have been granted lacks merit.To the extent plaintiff asserts that the District Court should have granted the branches of plaintiff’s cross motion seeking to strike defendant’s answer or, in the alternative, compel defendant to produce its no-fault examiner for a deposition, plaintiff failed to demonstrate that it had requested a deposition in this action, as the affidavit of service for the deposition notice annexed to plaintiff’s cross motion is for a different case. Consequently, these branches of plaintiff’s cross motion were properly denied.Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the $1,310.94 claim is denied.GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 8, 2018Heather Simpson, appellant pro se.Robert P. Kelly, for respondent.2016-1088 W C; 2016-1775 W C. PORTILLO v. SIMPSON — Appeals from a final judgment of the Justice Court of the Town of Eastchester, Westchester County (Janet M. Calano, J.), entered March 4, 2016, and from an order of that court entered July 15, 2016. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $4,500 in a nonpayment summary proceeding. The order denied tenant’s motion to vacate the warrant of eviction.ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,ORDERED that the appeal from the final judgment is dismissed as abandoned; and it is further,ORDERED that the order is reversed, without costs, and tenant’s motion to vacate the warrant is granted.Since tenant’s brief fails to set forth any argument regarding her appeal from the final judgment dated March 4, 2016, that appeal must be dismissed as abandoned (see Ellner v. Schwed, 48 AD3d 739 [2008]).Following a nonjury trial in this nonpayment proceeding, the Justice Court awarded landlord possession and the sum of $4,500, and stayed execution of the warrant until March 31, 2016. Tenant failed to pay the judgment within that time period and subsequently moved to vacate the warrant for good cause. By order entered July 15, 2016, the Justice Court denied tenant’s motion.The law abhors the forfeiture of leases (see 2246 Holding Corp. v. Nolasco, 52 AD3d 377, 378 [2008]; Sharp v. Norwood, 223 AD2d 6, 11 [1996], affd 89 NY2d 1068 [1997]; see also Dino Realty Corp. v. Khan, 46 Misc 3d 71 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, good cause was shown to vacate the warrant as the long-term tenant demonstrated that money to pay the arrears had been available prior to the execution of the warrant and that she had not paid the judgment within the time set forth by the court due to an injury which had temporarily prevented her from working (see e.g. Birchwood Ct. Owners, Inc. v. Toner, 51 Misc 3d 133[A], 2016 NY Slip Op 50467[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Under the circumstances, the Justice Court should have granted tenant’s motion.Accordingly, the order is reversed and tenant’s motion to vacate the warrant is granted.GARGUILO, J.P., and RUDERMAN, J., concur.TOLBERT, J., taking no part.February 8, 2018Karl A. Scully, for appellants.Law Offices of Joseph R. Miano (Jennifer C. Kruglinski), for respondent.2016-2071 W C. PARKVIEW APTS. CORP. v. PRYCE — Appeal from an order of the Justice Court of the Town of Ossining, Westchester County (Michael L. Tawil, J.), entered August 15, 2016. The order, entered pursuant to an oral decision of the same court made on August 4, 2016, after a hearing, denied tenants’ motion to vacate (1) a default final judgment of that court entered June 30, 2016 upon tenants’ failure to appear at a June 23, 2016 court date in a holdover summary proceeding, and (2) a warrant of that court issued pursuant to the default final judgment.ORDERED that, on the court’s own motion, the notice of appeal from the oral decision is deemed a premature notice of appeal from the order entered August 15, 2016 (see CPLR 5520 [c]); and it is further,ORDERED that the order entered August 15, 2016 is reversed, without costs, tenants’ motion to vacate the default final judgment and warrant is granted, and the petition is dismissed.Landlord, a cooperative corporation, served tenants, proprietary lessees of an apartment in landlord’s building, with a 10-day notice to cure, alleging that tenants were “engaging in objectionable conduct by causing noxious odors to emit from your apartment into the common areas of the building.” The petition does not allege the service of a notice of termination, and no such notice is attached to the petition.The parties first appeared before the Justice Court at the beginning of June 2016. At that time, the court ordered tenants to serve an answer by June 17, 2016 and adjourned the matter until June 23, 2016. Tenants interposed an answer on June 18, 2016, denying the material allegations of the petition and counterclaiming to recover based on a human rights violation and for attorney’s fees. On papers dated June 22, 2016 and returnable July 14, 2016, landlord moved to dismiss tenants’ counterclaims. Tenants defaulted in appearing on June 23, 2016, and, on June 30, 2016, the Justice Court entered a default final judgment awarding landlord possession and attorney’s fees in the sum of $1,000. The final judgment did not expressly dispose of tenants’ counterclaims. A warrant issued pursuant to the default final judgment.Tenants moved on July 11, 2016 to vacate the default final judgment and warrant, averring, among other things, that they had not appeared on June 23, 2016 because they believed that the court date had been changed to the return date of July 14, 2016 for landlord’s motion to dismiss. The Justice Court denied tenants’ motion. We reverse, as the record shows that there was no proper basis for the entry of the default final judgment.It is elementary that a holdover proceeding may only be brought after the expiration of a tenancy (RPAPL 711 [1]). Thus, for relief to be granted to a petitioner in a holdover proceeding, the petition must demonstrate that the tenancy expired prior to the commencement of the proceeding. Where a proceeding is based on a breach of a lease, the petition must allege that a notice of termination was served (see Kings Highway Realty Corp. v. Riley, 35 Misc 3d 127[A], 2012 NY Slip Op 50572[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Here, as tenants contend, the holdover petition is fatally defective in that it fails to plead that a notice of termination was served on tenants. Since a default judgment may not be granted on such facially insufficient papers (see Martine Assoc. LLC v. Minck, 5 Misc 3d 61 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; Kentpark Realty Corp. v. Lasertone Corp., 3 Misc 3d 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; cf. Gonzalez v. Peterson, 177 Misc 2d 940 [App Term, 1st Dept 1998, affd 258 AD2d 298 [1999]), the default final judgment and warrant must be vacated, and, upon a review of the pleadings and papers (see CPLR 409 [b]), the petition must be dismissed (see Kings Highway Realty Corp. v. Riley, 35 Misc 3d 127[A], 2012 NY Slip Op 50572[U]).However, in the circumstances of this case, including the overwhelming proof that tenants were in breach of their lease, we decline tenants’ request to be restored to possession (see Soukouna v. 365 Canal Corp., 48 AD3d 359 [2008]) and for an award of attorney’s fees (see Kralik v. 239 E. 79th St. Owners Corp., 93 AD3d 569 [2012]). Accordingly, the order is reversed, tenants’ motion to vacate the default final judgment and warrant is granted, and the petition is dismissed.GARGUILO, J.P., and RUDERMAN, J., concur.TOLBERT, J., taking no part.February 8, 2018Leon Auerbach, appellant pro se.Steve Moore, d/b/a ATM Construction, respondent pro se (no brief filed).2016-2313 S C. AUERBACH v. MOORE — Appeal from a judgment of the District Court of Suffolk County, Second District, (James F. Matthews, J.), entered December 4, 2015. The judgment, after a nonjury trial, dismissed the action.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover the sum of $4,975 for defendant’s allegedly defective repair of his roof and other work. After a nonjury trial, the District Court dismissed the action. On appeal, plaintiff contends that three months after defendant had completed the roof repair, further leakage from the roof occurred and plaintiff hired another contractor to replace the roof of his house.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126). Upon a review of the record, we find that it supports the District Court’s determination that plaintiff did not meet his burden of establishing by competent evidence that the roof repairs were defective. Thus, the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807). Accordingly, the judgment is affirmed.GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 8, 2018Laura DiVito, appellant pro se.Yoheved Bluestein, respondent pro se (no brief filed).2016-2736 N C. BLUESTEIN v. DiVITO — Appeal from a judgment of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), entered August 3, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,000.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover a $2,000 security deposit, plus $2,000 in rent she had paid for the month of November 2012. After a nonjury trial, at which both parties appeared pro se, a judgment was entered awarding plaintiff the principal sum of $4,000.In a small claims action, this court’s review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UCCA 1807; see UCCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).Although defendant claimed that plaintiff was not entitled to the return of her security deposit in the sum of $2,000 because she had damaged a kitchen countertop, defendant failed to establish the amount of her damages relating to the kitchen countertop. In addition, as plaintiff testified that she had paid rent for November, and as there was ample unrebutted evidence showing that the premises had not been habitable during November, the City Court could properly find that defendant was not entitled to retain the November rent.Accordingly, the judgment is affirmed.GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.February 8, 2018By: Marano, P.J., Tolbert, Garguilo, JJ.2016-2116 N CR. THE PEOPLE v. TELLIS, MARSHENGA — Appeal from judgments of conviction of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency, rendered August 1, 2016.On the court’s own motion, it isORDERED that the parties show cause before this court why the appeal should not be dismissed as abandoned, by filing an affidavit or affirmation on that issue with the Clerk of this court on or before March 7, 2018; and it is further,ORDERED that the Clerk of this court or his designee is directed to serve a copy of this order to show cause upon appellant and upon the Traffic Prosecutor, by ordinary mail pursuant to CPL 470.60 (2).While appellant pro se took her appeal from the judgments of conviction, the brief she submitted on appeal raises issues only with respect to a subsequent order, not appealed from denying her motion to vacate the judgments. As the appeal from the judgments does not bring up for review the subsequent order, the parties are directed to show cause why the appeal from the judgments should not be dismissed as abandoned.2017-163 D CR. THE PEOPLE v. PELL, CHARLES D. — Motion by appellant for a writ of error coram nobis for an extension of time to file an affidavit of errors on an appeal from a judgment of conviction of the Justice Court of the Village of Fishkill, Dutchess County, rendered September 28, 2015, for leave to prosecute the appeal as a poor person, for the assignment of counsel, and for an enlargement of time to perfect the appeal. By decision and order on motion of this court dated February 15, 2017, the branch of the motion seeking a writ of error coram nobis for an extension of time to file an affidavit of errors was granted and appellant’s time to file an affidavit of errors was extended 30 days from the date of this court’s decision and order on application (see People v. Smith, 2016 NY Slip Op 83072[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]), and the remaining branches of the motion were held in abeyance in the interim. Defendant complied by filing an affidavit of errors.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and the Dutchess County Public Defender is assigned as counsel; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.February 7, 20182017-1723 S CR. THE PEOPLE v. BALLARD, MICHAEL J — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Justice Court of the Town of Shelter Island, Suffolk County, rendered August 21, 2017, as a poor person, and for the assignment of counsel. By order to show cause dated November 22, 2017, appellant was directed either to show cause before this court why the appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, or, if so advised, to make a motion in this court pursuant to CPL 460.30 for an extension of time to file an affidavit of errors. Separate motion by appellant to continue a stay of execution of the sentence which was granted by the Supreme Court, Suffolk County on August 25, 2017.Upon the order to show cause and the papers filed by appellant in response thereto, and upon the papers filed in support of the motions and the papers filed in opposition to the motion for leave to prosecute the appeal as a poor person, it isORDERED, on the court’s own motion, that appellant’s time to move in this court pursuant to CPL 460.30 for an extension of time to file an affidavit of errors is extended 30 days from the date of this decision and order on motion; and it is further,ORDERED that appellant’s motions are held in abeyance in the interim.In People v. Smith (27 NY3d 643 [2016]), the Court of Appeals held that, for the purpose of taking an appeal, a record made from a mechanical recording is not the equivalent of a record made by a court stenographer and that an affidavit of errors is required for such an appeal to be properly taken. In the instant matter, it appears that the minutes of the arraignment and of the jury’s rendition of verdict were electronically recorded. Absent an affidavit of errors, this court lacks jurisdiction to entertain the appeal.February 7, 20182017-1845 S C. HAWTHORNE COURT, LLC v. WEST — Motion by appellant on an appeal from an order of the District Court of Suffolk County, Fifth District, entered August 17, 2017, to extend her time to comply with the payment requirement of a stay granted by decision and order on motion of this court dated November 29, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and appellant’s time to comply with the payment requirement of the decision and order on motion of this court dated November 29, 2017 is extended to 15 days after the date of this decision and order on motion, and appellant is directed to continue to comply with the other conditions contained in the decision and order on motion of this court dated November 29, 2017; and it is further,ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days’ notice.February 7, 20182018-127 OR CR. THE PEOPLE v. KAKURINA, ADYLIA — Appeal from a judgment of conviction of the Justice Court of the Village of Monroe, Orange County, rendered September 6, 2017. The notice of appeal is dated November 30, 2017 and was received by the Justice Court on December 13, 2017.On the court’s own motion, it isORDERED that the appeal is dismissed as untimely (see CPL 460.10 [1] [a]).February 7, 20182018-128 RO C. HUDSON VAL. HUMANE SOCY. FOR THE PREVENTION OF CRUELTY TO ANIMALS, INC. v. ADLER — Motion by appellant for a stay pending the determination of an appeal from an order of the Justice Court of the Town of Stony Point, Rockland County, entered January 19, 2018.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.February 7, 20182018-164 S CR. THE PEOPLE v. CLC SELDEN, LLC — Appeal from a December 29, 2017 refusal by the District Court of Suffolk County, Sixth District, to sign an order to show cause.On the court’s own motion, it isORDERED that the appeal is dismissed, as no appeal lies from a refusal to sign an order to show cause (see Matter of Allah v. Scheinman, 61 NY2d 755 [1984]).February 7, 20182018-169 S CR. THE PEOPLE v. CLC SELDEN, LLC — Appeal from a December 29, 2017 refusal by the District Court of Suffolk County, Sixth District, to sign an order to show cause.On the court’s own motion, it isORDERED that the appeal is dismissed, as no appeal lies from a refusal to sign an order to show cause (see Matter of Allah v. Scheinman, 61 NY2d 755 [1984]).February 7, 2018
