Kalmon Glovin, for appellants.Poch & Luckow, P.C. (Howard Poch), for respondent.2012-1419 K C. SHALOM BAYIT, LLC v. GLOVIN — Consolidated appeal from (1) an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated September 26, 2011, deemed, in part, from a final judgment of the same court entered September 26, 2011 (see CPLR 5512 [a]), and (2) a judgment of the same court (Bruce E. Sheckowitz, J.) entered November 20, 2012. The final judgment, entered pursuant to so much of the order as granted the branch of landlord’s motion seeking summary judgment, awarded landlord possession and the sum of $7,773 in a holdover summary proceeding. The order, insofar as directly appealed from and as limited by the brief, granted the branch of landlord’s motion seeking a hearing on attorney’s fees. The judgment entered November 20, 2012, after a hearing on attorney’s fees, awarded landlord the principal sum of $19,043.25.ORDERED that so much of the appeal as is from the portion of the order dated September 26, 2011 that granted the branch of landlord’s motion seeking a hearing on attorney’s fees is dismissed; and it is further,ORDERED that the final judgment entered September 26, 2011 and the judgment entered November 20, 2012 are affirmed, without costs.So much of the appeal from the order dated September 26, 2011 as is from the portion thereof that granted the branch of landlord’s motion seeking a hearing on attorney’s fees is dismissed because the right of direct appeal therefrom terminated with the entry of the judgment on November 20, 2012 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).Landlord’s motion for summary judgment in this holdover summary proceeding established that tenants had held over after the expiration of the tenancy. Even had tenants submitted evidence sufficient to raise an issue with respect to an option to renew the lease, which they failed to do, landlord submitted prima facie evidence that the lease had been properly terminated after the alleged exercise of the purported option. Accordingly, there is no merit to tenants’ argument that landlord should not have been awarded summary judgment.Furthermore, contrary to tenants’ argument, the lease did not limit landlord’s entitlement to collect attorney’s fees to circumstances in which the “lease is terminated due to Tenant’s default.” Rather, the lease provides that tenants are “responsible for Landlord’s reasonable attorney’s fees for any dispossess, eviction or other proceeding caused in connection with this Lease,” and that they were required to surrender the premises under the circumstances presented, which they failed to do.“The determination of a reasonable attorney’s fee is generally left to the discretion of the trial court, which is often in the best position to determine those factors integral to the fixing of a reasonable fee” (Miller Realty Assoc. v. Amendola, 51 AD3d 987, 990 [2008]). Here, having reviewed 10 bills for approximately 60 hours of work over the course of nearly two years, including almost 40 hours for court appearances and motion-related work, and having presided over a two-day hearing, the Civil Court determined that landlord was entitled to recover for approximately 54 hours of work. The court attributed most of the delays in the proceeding to tenants’ litigation tactics. We see no basis in the record to disturb the Civil Court’s determination. In addition, we reject tenants’ arguments regarding the specificity of the bills.Accordingly, the final judgment entered September 26, 2011 and the judgment entered November 20, 2012 are affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018New York City Legal Aid Society (Steven Berko), for appellant.Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Antara D. Kanth of counsel), for respondent.2015-1781 Q CR. THE PEOPLE v. LOZADO, FERNANDO — Appeal from two judgments of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered June 17, 2014. The judgments convicted defendant, after a nonjury trial, of attempted criminal contempt in the second degree (Penal Law §§110.00, 215.50 [3]) and harassment in the second degree (Penal Law §240.26 [1]), respectively.ORDERED that the judgments of conviction are reversed, on the law, and the accusatory instruments are dismissed.In an accusatory instrument charging defendant with criminal contempt in the second degree (Penal Law §215.50 [3]) and harassment in the second degree (Penal Law §240.26 [1]), a detective alleged that, at about 7:10 p.m. on December 23, 2012, at the 115th Precinct in Queens, he had been informed by the complainant that:“The defendant, Fernando Lozado, stated in sum and substance to the complainant who is that ni**er in the car, watch what is going to happen to him.Deponent is further informed by the complainant that the above mentioned actions of the defendant caused the complainant annoyance and alarm.Deponent states that he has reviewed an order of protection issued on behalf of the complainant…by the Honorable Judge Dennis Lebwohl of the Queens Family Court…on 12/7/2012 which is in effect until 02/15/2013 and which states, among other things, that the defendant, Fernando Lozado…must refrain from assault, menacing, threatening, intimidating, stalking, harassment, disorderly conduct…and any other criminal offense against the complainant.Deponent states that [s]he has examined a copy of said order of protection and that the defendant is aware of said order of protection in that both parties were present in court.”The order of protection had been issued after a family offense petition had been filed pursuant to article 8 of the Family Court Act on October 12, 2012.On April 1, 2014, the original accusatory instrument was replaced with two prosecutor’s informations charging defendant with attempted criminal contempt in the second degree and harassment in the second degree, respectively.At a nonjury trial, the testimony established that defendant had custody of two of the complainant’s children, one of whom was also defendant’s child, and that the complainant had visitation rights. Furthermore, the complainant had obtained an order of protection in her favor and against defendant. As part of a Family Court order, the complainant had been directed to bring the two children to the 115th Precinct after weekends of visitation, where defendant would pick them up. The complainant testified that, at approximately 7:00 p.m. on Sunday, December 23, 2012, in front of the 115th Precinct in Queens, she was in a car service vehicle together with, among others, her current boyfriend and a child that she had had with that boyfriend. As she stepped out of the vehicle, defendant approached and said, “[w]ho is that ni**er in the car?” Defendant also said, “[w]atch what’s going to happen to you, bitch.” The complainant became scared because her “baby was there with the guy in the car and [defendant] threatened me.” She went into the precinct and asked for help.Defendant moved to dismiss the charges at the close of the People’s case, arguing that the People had failed to prove that defendant had attempted to intentionally disobey a lawful order by using the “n-word” to describe the complainant’s boyfriend, who was in the car-service vehicle at the precinct. The boyfriend did not have an order of protection against defendant. Counsel also argued that the complainant’s testimony that defendant had threatened her and called her a bitch was a recent fabrication. The court denied the motion.Defendant testified in his own behalf that, at approximately 7:00 p.m. on December 23, 2012, he had been running late to pick up his two children at the 115th Precinct. Defendant claimed that the “exchange” of the children was done at the precinct for his safety. Defendant testified that he did not say anything to the man in the car, but even if he did, he doubted that the man could have heard what he had said. He did not speak to anyone other than his children on the night in question.The court found defendant guilty as charged.On appeal, defendant argues, among other things, that his conviction of harassment in the second degree should not stand because his actions failed to demonstrate an intent to harass, annoy or alarm the complainant, and his conviction of attempted criminal contempt in the second degree should be reversed because it was inextricably interwoven with his second-degree harassment conviction. The statements defendant made to the complainant were not “unambiguous threats.” The first statement, “[w]ho is that ni**er in the car,” was simply asking who was in the car with the children, especially because defendant had custody of two of the children. The second statement, “[w]atch what’s going to happen to you, bitch,” did not convey that defendant would harm the complainant. Defendant further argues that the conviction of attempted criminal contempt in the second degree “should be reversed because…the People’s proof failed to show that [defendant] in any way attempted to resist the lawful process or other mandate” of a court.At the outset, we note that for an information to be facially sufficient, it must contain nonhearsay allegations which establish, if true, every element of the offense(s) charged and the defendant’s commission thereof (see CPL 100.40 [1] [c]; People v. Casey, 95 NY2d 354, 360 [2000]; People v. Canjura, 46 Misc 3d 66, 68 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also CPL 100.15 [3]; 100.40 [1] [b]). These requirements, with the exception of a claim of hearsay, which is waived if it is not timely raised in a motion in the trial court, are jurisdictional (see People v. Canjura, 46 Misc 3d at 68), and must be addressed on appeal even if not raised in a motion (see People v. Alejandro, 70 NY2d 133, 135 [1987]; People v. Deveaux, 50 Misc 3d 133[A], 2016 NY Slip Op 50032[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). The original accusatory instrument alleged that defendant “stated in sum and substance to the complainant who is that ni**er in the car, watch what is going to happen to him” (emphasis added). The factual allegations of the original accusatory instrument regarding the crimes charged did not support the crimes charged, because the statements made were not directed against the complainant (see Penal Law §240.26 [1]), but against her boyfriend, who did not have an order of protection in his favor and against defendant. Furthermore, the testimony at the trial, in which it was alleged that defendant stated, in sum and substance, “watch what is going to happen to you, bitch” (emphasis added), does not match the allegations of the original accusatory instrument. In any event, even if defendant had uttered the statement to the complainant as testified to by the complainant at trial, we find that the evidence did not establish defendant’s guilt beyond a reasonable doubt.Defendant did not specifically argue in the Criminal Court that the statements he had allegedly made to the complainant did not constitute a physical threat, and thus, that the elements of harassment in the second degree were not established. To that extent, defendant’s legal insufficiency claim is unpreserved for appellate review (see CPL 470.05 [2]; People v. Hawkins, 11 NY3d 484, 491-492 [2008]). However, we review defendant’s legal insufficiency claim as a matter of discretion in the interest of justice.A person is guilty of harassment in the second degree when, “with intent to harass, annoy or alarm another person…[h]e…subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law §240.26 [1]). Intent to commit such an act can be “inferred from the act itself or from the defendant’s conduct and the surrounding circumstances” (People v. Caulkins, 82 AD3d 1506, 1507 [2011]; see People v. Bracey, 41 NY2d 296, 301 [1977]).Here, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620 [1983]), we find that defendant’s guilt of harassment in the second degree was not established beyond a reasonable doubt. The statements made by defendant did not demonstrate “a genuine threat of physical harm” (People v. Smith, 32 Misc 3d 134[A], 2011 NY Slip Op 51457[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; see People v. Todaro, 26 NY2d 325, 330 [1970]; People v. Ruggerio, 4 Misc 3d 133[A], 2004 NY Slip Op 50747[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). The first statement, “[w]ho is that ni**er in the car,” although extremely offensive, did not threaten any violence. The second statement, “[w]atch what’s going to happen to you, bitch,” was simply too “vague” to establish the crime of harassment in the second degree (see People v. Caulkins, 82 AD3d at 1507; see also People v. Smith, 32 Misc 3d 134[A], 2011 NY Slip Op 51457[U], *1-2; People v. Ruggerio, 4 Misc 3d 133[A], 2004 NY Slip Op 50747[U]).As defendant’s act did not establish harassment, he did not attempt to disobey the order of protection (see Penal Law §215.50 [3]).Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018Leon I. Behar, P.C. (Leon I. Behar), for appellant.South Brooklyn Legal Services (Nadya E. Rosen and Andrew A. Ortiz), for respondent.2015-2801 K C. JACOB MARION, LLC v. “DOE” — Consolidated appeals from (1) an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated August 3, 2015, deemed in part from a final judgment of that court entered April 1, 2016 (see CPLR 5501 [c]), and (2) an order of that court dated June 17, 2016. The final judgment, entered pursuant to so much of the order dated August 3, 2015 as granted a motion by tenant Suzette Hamilton, sued herein as Hamilton “Doe,” for summary judgment, dismissed the petition in a holdover summary proceeding. The order dated August 3, 2015, insofar as directly appealed from, denied as moot landlord’s cross motion for use and occupancy. The order entered June 17, 2016 denied landlord’s motion for leave to renew its opposition to tenant’s motion for summary judgment.ORDERED that the order dated August 3, 2015, insofar as reviewed on direct appeal, the final judgment, and the order entered June 17, 2016 are affirmed, without costs.Insofar as is relevant to this appeal in this holdover proceeding, the notice of termination and petition allege that tenant Suzette Hamilton, sued herein as Hamilton “Doe,” is a month-to-month tenant pursuant to an oral agreement and that the subject apartment is not rent stabilized. As the basis for the claim that the apartment is not rent stabilized, landlord alleged that the apartment had reached a maximum legal rent exceeding $2,000. Tenant’s answer asserts that the apartment is subject to rent stabilization. Tenant moved for summary judgment dismissing the petition, attaching printouts from the Division of Housing and Community Renewal (DHCR) which, she claimed, demonstrated that her apartment could not have lawfully reached a rent of $2,000. Annexed to tenant’s papers was a copy of a written lease for the subject premises for a one-year term commencing on August 1, 2010, signed by Alex Varveris as landlord. Tenant’s affidavit asserted that Varveris was the prior landlord and that she had paid rent to him.Landlord opposed the motion, contending that the unit was subject to high-rent deregulation, but did not contest tenant’s claim that she had entered into possession pursuant to the proffered written lease. Landlord also cross-moved for an award of use and occupancy.In an order dated August 3, 2015, following a detailed analysis of the DHCR printouts, the Civil Court concluded, based on the owner-provided information contained in the printouts, that the legal regulated rent for tenant’s unit could not have reached the then-applicable threshold of $2,000 per month and that the unit was, thus, rent stabilized. Accordingly, the court granted tenant’s motion for summary judgment dismissing the petition. The court also denied as moot landlord’s cross motion. Landlord’s notice of appeal from the order dated August 3, 2015 is deemed in part to be from a final judgment, entered pursuant to the order, dismissing the petition (see CPLR 5501 [c]).Following the entry of the final judgment, landlord moved for leave to renew its opposition to tenant’s motion for summary judgment, asserting, for the first time in this proceeding, that Varveris had not been authorized to execute a lease with tenant and that landlord itself had never intended to create a tenancy of any kind with tenant. By order dated June 17, 2016, the Civil Court denied landlord’s motion for leave to renew, noting, among other things, that landlord’s motion did not address the court’s holding that the rent for the premises had never crossed the then-applicable deregulation threshold of $2,000 per month. Landlord filed a separate notice of appeal from the June 17, 2016 order, and the appeals were consolidated by this court.Landlord’s contention on appeal that, in support of her motion for summary judgment, tenant did not establish a prima facie showing that she had a valid lease, lacks merit. Thus, there is no basis to disturb the final judgment on landlord’s direct appeal therefrom. In view of the dismissal of the petition, landlord’s cross motion for use and occupancy was properly denied (see Esposito v. Larig, 52 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).In support of its motion for leave to renew, landlord was required either to present new facts which were unavailable at the time of its opposition to tenant’s motion for summary judgment or a reasonable justification for the failure to have presented such facts on the prior motion (see CPLR 2221 [e]; Deutsche Bank Natl. Trust Co. v. Matheson, 77 AD3d 883 [2010]). As landlord failed to provide either, and, as noted by the Civil Court, failed to address the court’s determination that the rent for the premises had never crossed the deregulation threshold, the court properly denied landlord’s motion (see Caraballo v. Kim, 63 AD3d 976 [2009]; Dinten-Quiros v. Brown, 49 AD3d 588 [2008]; Madison v. Tahir, 45 AD3d 744 [2007]).We note, in any event, that landlord’s new theory — that no tenancy ever existed — contradicts its notice of termination and its petition. Since predicate notices cannot be amended (see Chinatown Apts. Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980]), landlord’s new theory fails to provide a rationale for disturbing the Civil Court’s grant of summary judgment to tenant.Accordingly, the order dated August 3, 2015, insofar as reviewed on direct appeal, the final judgment, and the order entered June 17, 2016 are affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018Leon I. Behar, P.C. (Leon I. Behar), for appellant.South Brooklyn Legal Services (Nadya E. Rosen and Andrew A. Ortiz), for respondent.2016-34 K C. JACOB MARION, LLC v. “DOE” — Consolidated appeals from (1) an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated August 6, 2015, deemed in part from a final judgment of that court entered April 1, 2016 (see CPLR 5501 [c]), and (2) an order of that court dated June 16, 2016. The final judgment, entered pursuant to so much of the order dated August 6, 2015 as granted a motion by tenant Phyllis Jones, sued herein as Jones “Doe,” for summary judgment, dismissed the petition in a holdover summary proceeding. The order dated August 6, 2015, insofar as directly appealed from, denied as moot landlord’s cross motion for use and occupancy. The order dated June 16, 2016 denied landlord’s motion for leave to renew its opposition to tenant’s motion for summary judgment.ORDERED that the order dated August 6, 2015, insofar as reviewed on direct appeal, the final judgment, and the order dated June 16, 2016 are affirmed, without costs.The notice of termination and petition in this holdover proceeding allege the termination of a month-to-month tenancy and that the premises is not rent stabilized. By order dated August 6, 2015, the Civil Court granted tenant’s motion for summary judgment dismissing the petition on the ground that the apartment was rent stabilized, and denied as moot landlord’s cross motion for use and occupancy. Landlord’s notice of appeal from the order dated August 6, 2015 is deemed in part to be from a final judgment, entered pursuant to the order, dismissing the petition (see CPLR 5501 [c]). Following the entry of the final judgment, landlord moved, on the ground of newly discovered evidence (see CPLR 2221 [e]), for leave to renew its opposition to tenant’s summary judgment motion, arguing that tenant had no lease at all, which motion was denied by order dated June 16, 2016.For the reasons stated in Jacob Marion, LLC, v. Hamilton “Doe” (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2801 K C], decided herewith), the order dated August 6, 2015, insofar as reviewed on direct appeal, the final judgment, and the order dated June 16, 2016 are affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-58 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-59 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-60 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-61 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree and aggravated unlicensed operation of a motor vehicle in the third degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALLIOTA and ELLIOT, JJ., concur.February 9, 2018Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-63 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Appellate Advocates (Laura B. Tatelman), for appellant.Kings County District Attorney (Leonard Joblove and Victor Barall of counsel), for respondent.2016-64 K CR. THE PEOPLE v. PRAY, DANIEL — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Sharen D. Hudson, J.), rendered December 7, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Leon I. Behar, P.C. (Leon I. Behar), for appellant.South Brooklyn Legal Services (Nadya E. Rosen and Andrew A. Ortiz), for respondent.2016-311 K C. JACOB MARION, LLC v. JONES — Consolidated appeals from (1) an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated July 29, 2015, deemed in part from a final judgment of that court entered April 1, 2016 (see CPLR 5501 [c]), and (2) an order of that court dated June 15, 2016. The final judgment, entered pursuant to so much of the order dated July 29, 2015 as granted tenant’s motion for summary judgment, dismissed the petition in a holdover summary proceeding. The order dated July 29, 2015, insofar as directly appealed from, denied as moot landlord’s cross motion for use and occupancy. The order dated June 15, 2016 denied landlord’s motion for leave to renew its opposition to tenant’s motion for summary judgment.ORDERED that the order dated July 29, 2015, insofar as reviewed on direct appeal, the final judgment, and the order dated June 15, 2016 are affirmed, without costs.The notice of termination and petition in this holdover proceeding allege the termination of a month-to-month tenancy and that the premises is not rent stabilized. By order dated July 29, 2015, the Civil Court granted tenant’s motion for summary judgment dismissing the petition on the ground that the apartment was rent stabilized, and denied as moot landlord’s cross motion for use and occupancy. Landlord’s notice of appeal from the order dated July 29, 2015 is deemed in part to be from a final judgment, entered pursuant to the order, dismissing the petition (see CPLR 5501 [c]). Following the entry of the final judgment, landlord moved, on the ground of newly discovered evidence (see CPLR 2221 [e]), for leave to renew its opposition to tenant’s summary judgment motion, arguing that tenant had no lease at all, which motion was denied by order dated June 15, 2016.For the reasons stated in Jacob Marion, LLC, v. Hamilton “Doe” (___ Misc 3d ___, 2018 NY Slip Op ___ [appeal No. 2015-2801 K C], decided herewith), the order dated July 29, 2015, insofar as reviewed on direct appeal, the final judgment, and the order dated June 15, 2016 are affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.Law Offices of Buratti, Rothenberg & Burns (Elke E. Mirabella and Joelle Roberts), for appellant.Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.2016-912 K C. ACTIVE CHIROPRACTIC, P.C. v. 21ST CENTURY INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 18, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.Prior to the commencement of this action by a provider to recover assigned first-party no-fault benefits, defendant brought a declaratory judgment action in the Supreme Court, New York County, against, among others, plaintiff herein and its assignor. Thereafter, defendant, asserting that plaintiff and the assignor had failed to answer the complaint, moved in the Supreme Court for, among other things, the entry of a default judgment. By order dated December 8, 2014, the Supreme Court stated that an unrelated branch of defendant’s motion was denied and that the “remainder of the motion [wa]s granted without opposition.” After the instant action was commenced in the Civil Court, plaintiff moved for summary judgment. Relying on the Supreme Court’s order, defendant cross-moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel. Defendant appeals from the order of the Civil Court entered November 18, 2015 which granted plaintiff’s motion and denied defendant’s cross motion.Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.With respect to defendant’s cross motion, as the December 8, 2014 Supreme Court order in the declaratory judgment action merely granted the branch of defendant’s motion for the entry of a default judgment against plaintiff and its assignor, but failed to make a statement declaring the rights of the parties involved (see Hirsch v. Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v. Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v. Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar (see Promed Orthocare Supply, Inc. v. AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Vital Meridian Acupuncture, P.C. v. Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Abrams, Cohen & Associates, P.C. (Frank Piccininni), for appellant.Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.2016-1297 K C. ACTIVE CHIROPRACTIC, P.C. v. ALLSTATE INS. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.Plaintiff commenced this action on February 8, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer on March 5, 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on May 13, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to raise the defense of res judicata in its answer.Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue had been joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v. Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v. Vinnik, 127 AD2d 310, 320 [1987]; Renelique v. State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).We note that, while defendant failed to raise the affirmative defense of res judicata in its answer, defendant had no basis to assert that defense before May 13, 2014, when the order in the Supreme Court declaratory judgment action was entered (see Metro Health Prods., Inc. v. Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique v. State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While the better practice would have been for defendant to move to amend its answer after May 13, 2014, nevertheless, defendant’s answer may be deemed amended to assert the affirmative defense of res judicata (see Barrett v. Kasco Constr. Co., 84 AD2d 555 [1981], affd 56 NY2d 830 [1982]). We note that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v. American Airlines, Inc., 80 AD3d 600, 602 [2011]; see Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]).In light of the Supreme Court’s order in the declaratory judgment action, the Civil Court should have granted defendant’s cross motion (see EBM Med. Health Care, P.C. v. Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v. Neiberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v. Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d at 2).Accordingly, the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Abrams, Cohen & Associates, P.C. (Frank Piccininni), for appellant.Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.2016-1298 K C. ACTIVE CHIROPRACTIC, P.C. v. ALLSTATE INS. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.Plaintiff commenced this action on February 8, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer on March 19, 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on March 14, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to raise the defense of res judicata in its answer.For the reasons stated in Active Chiropractic, P.C., as Assignee of Mary Parrish v. Allstate Ins. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1297 K C], decided herewith), the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Abrams, Cohen & Associates, P.C. (Frank Piccininni), for appellant.Zara Javakov, P.C. (Zara Javakov and Adam Waknine), for respondent.2016-1299 K C. ACTIVE CHIROPRACTIC, P.C. v. ALLSTATE INS. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion, in effect, for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.Plaintiff commenced this action on February 1, 2013 to recover assigned, first-party no-fault benefits. Defendant served an answer in or about September 2013. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that plaintiff’s action was barred by virtue of an order entered on March 14, 2014 in a Supreme Court declaratory judgment action. The Supreme Court order, entered on default, declared that defendant herein was not obligated to provide coverage for no-fault claims arising out of the accident in question, and that plaintiff herein and its assignor were not entitled to reimbursement for services rendered to the assignor with respect to that accident. Plaintiff did not oppose defendant’s cross motion in the Civil Court. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to raise the defense of res judicata in its answer.For the reasons stated in Active Chiropractic, P.C., as Assignee of Mary Parrish v. Allstate Ins. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1297 K C], decided herewith), the order is reversed, defendant’s answer is deemed amended to assert the affirmative defense of res judicata, plaintiff’s motion for summary judgment is denied and defendant’s cross motion, in effect, for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Danny Kasab, appellant pro se.Brad Berfas, Esq., for respondent (no brief filed).2016-1404 K C. FIVE STAR AIR, INC. v. KASAB — Appeal from a decision of the Civil Court of the City of New York, Kings County (Noach Dear, J.), dated November 16, 2011, and from a judgment of that court entered February 16, 2012. The judgment, insofar as appealed from as limited by the brief, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $4,500.ORDERED that so much of the appeal as is from the decision dated November 16, 2011 is dismissed, as no appeal lies from a decision (see CCA 1702; Farag v. Farag, 4 AD3d 502 [2004]); and it is further,ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.Plaintiff commenced this action to recover the sum of $6,000 allegedly due on a contract for the purchase and installation of air conditioning units. Defendant interposed a counterclaim to recover the sum of $3,000, alleging that plaintiff had breached the agreement. At a nonjury trial, it was established that defendant had paid plaintiff $6,000 of the $12,000 contract price but then hired another contractor to complete the job. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $4,500 and dismissed defendant’s counterclaim. As limited by his brief, defendant appeals from so much of the judgment as awarded plaintiff the principal sum of $4,500.In reviewing a determination made after a nonjury trial, this court’s power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind that the determination of the 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 Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v. Blackwood, 85 AD3d 1116 [2011]; Zeltser v. Sacerdote, 52 AD3d 824, 826 [2008]; D’Elia v. 58-35 Utopia Parkway Corp., 43 AD3d 976, 977-978 [2007]). Furthermore, “an award of damages should place the plaintiff in the same position as he or she would have been in if the contract had not been breached” (Ng v. Tow, 260 AD2d 574, 575 [1999]), and the damages must be reasonably certain and directly traceable to the breach (see Ng v. Tow, 260 AD2d at 575).Upon a review of the record, we find that the Civil Court properly determined that defendant had breached the contract and was liable to plaintiff in the sum of $4,500. Consequently, we find no reason to disturb the judgment.Accordingly, the judgment, insofar as appealed from, is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, J., concur.February 9, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Dorothy Amoamah, appellant pro se. Stern & Stern, Esqs., for respondent (no brief filed).2016-1634 K C. B&T REALTY ASSOC., LLC v. AMOAMAH — Appeal from a decision of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), dated December 23, 2015, deemed from a final judgment of the same court entered December 29, 2015 (see CPLR 5512 [a]). The final judgment, after a nonjury trial, awarded landlord possession and the sum of $884.52 in a nonpayment summary proceeding.ORDERED that the final judgment is affirmed, without costs.Prior to the commencement of this nonpayment proceeding, tenant had filed two separate complaints against landlord with the Division of Housing and Community Renewal (DHCR). At a nonjury trial in the instant proceeding, a copy of a DHCR order dated December 5, 2013 was admitted into evidence showing that tenant’s rent had initially been reduced, but had been restored to its full legal amount as of March 1, 2013. Tenant contended that a second DHCR order, dated March 20, 2015, also introduced into evidence at trial, instead restored the full legal rent only as of March 1, 2014, one year later. Tenant admitted that she did not pay the restored rent for the period of March 2013 through February 2014. Following a nonjury trial, the court awarded landlord the sum of $884.52, representing an underpayment of $73.71 per month from March 2013 through February 2014, pursuant to the 2013 DHCR order.A review of the record establishes that the 2013 DHCR order restored tenant’s full legal rent starting March 1, 2013. The 2015 DHCR order confirms this in its rent calculations but misstates the date in a footnote. Despite the typographical error, tenant owes the restored rent for the period of March 2013 through February 2014.Accordingly, the final judgment is affirmed.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.Park & Nguyen (Darin S. Billig), for appellant.Mohammad Atif, respondent pro se (no brief filed).2016-1893 Q C. ATIF v. CENTER OF THE WORLD CAR SERV. CORP. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 4, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.ORDERED that the judgment is affirmed, without costs.In this small claims action, plaintiff seeks to recover the principal sum of $5,000, based on defendant’s alleged breach of a contract. At a nonjury trial, plaintiff testified that he owned a license to operate a New York City green taxi, and that, in December 2013, he had entered into a contract with defendant, pursuant to which defendant would manage and operate the license, and in consideration therefor plaintiff would receive monthly payments for a three-year term. Payments were to commence in March 2014. Plaintiff stated that defendant had made three payments to him, totaling $750, and had mailed him four checks for $100 each, which plaintiff had not cashed, and that defendant had made no additional payments. It was undisputed that defendant had drafted the parties’ contract, which was admitted into evidence. At trial, defendant moved to dismiss the action on the ground that plaintiff had failed to comply with a notice to cure provision in the parties’ contract. Defendant’s motion was denied.Following the trial, the Civil Court found that the contract had been tainted by elements of both procedural and substantive unconscionability, but that the evidence had nevertheless established that plaintiff was entitled to monthly payments from defendant. On that basis, the court awarded judgment to plaintiff in the principal sum of $5,000. This appeal ensued. The sole issue raised on appeal is whether the requirement that plaintiff provide defendant with a 90-day notice-to-cure constituted a condition precedent to the commencement of this action, and whether, by reason of plaintiff’s failure to provide defendant with such a notice, defendant was entitled to dismissal of the action. The parties’ contract describes plaintiff as “Licensee” and defendant as “Manager,” and states, at paragraph 11.7:“In the event Licensee claims that Manager is in breach or in default of any of the Manager’s obligation(s) under provisions contained herein, Licensee shall provide to Manager an opportunity to cure such breach or default by providing the Manager with ninety (90) days notice, sent by certified or registered mail with return receipt requested, specifying what obligation(s) the Manager breached or defaulted upon and supplying all available documents. Manager shall have ninety (90) days to cure from the date of receipt of such notice” (emphasis added).The “OBLIGATIONS OF MANAGER AND LICENSEE” are set forth in paragraph 4.0 of the contract, and are separate from the “CONSIDERATION” provision set forth in paragraph 3.0 of the contract, pursuant to which defendant was obligated to make monthly payments to plaintiff. “It is well settled that any ambiguity which might exist must be construed against the defendant as drafter of the agreement” (Bernstein v. Sosnowitz, 198 AD2d 204, 205 [1993]), which rule of interpretation requires that the notice-to-cure provision of the subject contract apply only to the requirement that plaintiff provide defendant with a notice to cure any default of defendant’s “obligations” set forth in paragraph 4.0 of the contract, rather than to his entitlement to timely payment of “consideration” under paragraph 3.0. To require otherwise would, in effect, have the unfair and anomalous effect of permitting defendant to delay each of its monthly payments to plaintiff for 90 days following receipt of a notice-to-cure (see 22 NY Jur 2d, Contracts §218). We therefore conclude that defendant’s motion to dismiss was properly denied, albeit on grounds other than those relied upon by the Civil Court, and that the judgment in favor of plaintiff provided the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807).We reach no other issue.Accordingly, the judgment is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018Rappaport, Hertz, Cherson & Rosenthal, P.C. (David I. Paul), for appellant.Marie Augustine Sannon, a/k/a Celine Sanon, respondent pro se (no brief filed).2016-1960 K C. GHR CO., LLC v. SANNON — Appeal from an order of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), dated June 20, 2016. The order granted tenant’s motion to, in effect, continue the stay of execution of a warrant in a holdover summary proceeding.ORDERED that the order is affirmed, without costs.In this holdover proceeding based on chronic nonpayment, the parties entered into a stipulation of settlement pursuant to which a final judgment of possession was to be entered and a warrant of eviction issued, with execution of the warrant to be stayed provided tenant complied with the terms of the stipulation, which imposed a probationary period. Upon tenant’s failure to make a payment, landlord sought to execute the warrant of eviction, and tenant moved to continue the stay of the execution of the warrant. By order dated June 20, 2016, the Civil Court granted tenant’s motion.It is well settled that stipulations of settlement are independent contracts, are favored by the courts, and will not be undone absent proof that the settlement was obtained by fraud, collusion, mistake, accident or other ground sufficient to invalidate a contract (see Hallock v. State of New York, 64 NY2d 224 [1984]; Matter of Galasso, 35 NY2d 319, 321 [1974]; Matter of Frutiger, 29 NY2d 143 [1971]). Nevertheless, enforcement of a stipulation remains subject to the supervision of the court (see Malvin v. Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]), “which is not necessarily bound by language in the stipulation stating that any default shall be deemed de minimis” (Brigham Park Co-Operative Apts., Sec #3, Inc. v. Rock, 42 Misc 3d 141[A], 2014 NY Slip Op 50220[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, we find that the Civil Court acted well within its discretion in granting tenant’s motion to continue the stay of the execution of the warrant.Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 9, 2018By: Pesce, P.J., Weston, Elliot, JJ.Mishiyeva Law, PLLC (Kamilla Mishiyeva, Esq.), for appellant.Lesly Bataille and Max Bataille, respondents pro se (no brief filed).2016-1994 K C. MARSHALL v. BATAILLE — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Adam Silvera, J.), entered April 29, 2016. The judgment, after a nonjury trial, dismissed the complaint.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.In this action, plaintiff seeks to recover the principal sum of $12,000, based on defendants’ alleged failure to pay him the balance of a real estate brokerage commission. At a nonjury trial, plaintiff testified that, together with defendant Lesly Bataille, Doing Business as Bataille Realty, he had co-brokered the sale of premises owned by defendant Max Bataille, and that the parties had agreed that he would be paid half of a total 6 percent commission on the contract price of $1,200,000, or $36,000, but that he had instead been paid only $24,000. Defendant Lesly Bataille testified that the contract price for the premises had been $1,200,000, and that she had agreed to split a 6 percent brokerage commission evenly with plaintiff, but that, at the closing, which plaintiff had not attended, all the participants in the transaction had made concessions. As a result, the brokerage commission had been reduced from 6 percent to 4 percent, slightly over half of which had been paid to plaintiff. Following the trial, the complaint was dismissed upon a finding that plaintiff had failed to make out a prima facie case, and that defendant Lesly Bataille’s testimony had been consistent and credible.It appears from the record that the only matter in dispute was whether defendant Lesly Bataille had actual or implied authority to negotiate a reduction in plaintiff’s commission. The parties provided no evidence on this issue. Under these circumstances, we are of the view that a new trial is warranted.Accordingly, the judgment is reversed and the action is remitted to the Civil Court for a new trial.PESCE, P.J., WESTON and ELLIOT, JJ., concur.February 9, 2018By: Pesce, P.J., Weston, Elliot, JJ.2015-1527 Q C. ISLAND LIFE CHIROPRACTIC, P.C. v. NATL. LIAB. & FIRE INS. CO. — Appellant Island Life Chiropractic, P.C., having appealed to this court from an order of the Civil Court of the City of New York, Queens County, dated April 22, 2015, and counsel having appeared for a CAMP conference on August 13, 2015, and appellant having perfected the appeal on December 30, 2015, and respondent having filed a brief on January 20, 2016, and both parties having been sent a notice on November 29, 2017, advising each that the appeal was to be heard on submission on December 15, 2017, and counsel for plaintiff-appellant having notified the court via letter dated December 6, 2017, that the appeal was to be withdrawn, and counsel having attached to the letter a Stipulation of Discontinuance With Prejudice dated September 6, 2016, 15 months earlier. By order to show cause dated December 15, 2017, the parties or their 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 parties to the appeal or their respective counsel pursuant to 22 NYCRR 730.3 (f) as this Court may deem appropriate.Upon the order to show cause and the papers filed in response thereto, it isORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $2500 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§130-1.1[b]; 130-1.3); and it is further,ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, the Law Offices of Moira Doherty, PC, counsel for respondent, shall pay a sanction in the sum of $1000 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§130-1.1[b]; 130-1.3); and it is further,ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon each counsel by regular mail; and it is further,ORDERED that within 10 days after payment of their respective sanctions, counsel shall each file proof of payment of its sanction with the Clerk of this Court.The rules of this court provides, in relevant part, that “[i]f an appeal or the underlying action or proceeding is wholly or partially settled…the parties or their counsel shall immediately notify the court. Any attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of costs and/or sanctions as the court may direct” (Rules of the Appellate Terms, Second Department [22 NYCRR] §730.3 [f]).Here, counsel for the appellant and the respondent failed to timely notify the Court that the action had been settled on September 6, 2016, fifteen months before counsel received notice that the appeal was to be heard on submission. In setting the amount of the sanction, the court considered that The Rybak Firm has repeatedly violated the aforesaid rule. With respect to respondent’s counsel, while it is accurate, as her firm suggests, that it was “not their appeal,” under the rule both parties bear the responsibility to notify the court of a settlement. Thus, under the circumstances, the failure of counsel to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amounts indicated.2015-2044 K C. T & S MED. SUPPLY CORP., v. NATL. LIAB. & FIRE INS. CO. — Appellant T & S Medical Supply Corp., having appealed to this court from an order of the Civil Court of the City of New York, Kings County, dated May 15, 2015, and counsel having appeared for a CAMP conference on October 1, 2015, and appellant having perfected the appeal on January 14, 2016, and respondent having filed a brief on February 8, 2016, and both parties having been sent a notice on November 29, 2017, advising each that the appeal was to be heard on submission on December 15, 2017, and counsel for plaintiff-appellant having notified the court via letter dated December 6, 2017, that the appeal was to be withdrawn, and counsel having attached to the letter a Stipulation of Discontinuance With Prejudice dated September 6, 2016, 15 months earlier. By order to show cause dated December 15, 2017, the parties or their 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 parties to the appeal or their respective counsel pursuant to 22 NYCRR 730.3 (f) as this Court may deem appropriate.Upon the order to show cause and the papers filed in response thereto, it isORDERED that within 20 days after service of a copy of this decision and order on motion upon it, The Rybak Firm, PLLC, counsel for appellant, shall pay a sanction in the sum of $2500 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§130-1.1[b]; 130-1.3); and it is further,ORDERED that within 20 days after service of a copy of this decision and order on motion upon it, the Law Offices of Moira Doherty, PC, counsel for respondent, shall pay a sanction in the sum of $1000 to the Lawyers’ Fund for Client Protection of the State of New York (see Rules of the Chief Administrator of the Courts [22 NYCRR] §§130-1.1[b]; 130-1.3); and it is further,ORDERED that the Clerk of this Court, or his designee, shall serve a copy of this decision and order on motion upon each counsel by regular mail; and it is further,ORDERED that within 10 days after payment of their respective sanctions, counsel shall each file proof of payment of its sanction with the Clerk of this Court.The rules of this court provides, in relevant part, that “[i]f an appeal or the underlying action or proceeding is wholly or partially settled…the parties or their counsel shall immediately notify the court. Any attorney or party who, without good cause shown, fails to comply with the requirements of this subdivision shall be subject to the imposition of costs and/or sanctions as the court may direct” (Rules of the Appellate Terms, Second Department [22 NYCRR] §730.3 [f]).Here, counsel for the appellant and the respondent failed to timely notify the Court that the action had been settled on September 6, 2016, fifteen months before counsel received notice that the appeal was to be heard on submission. In setting the amount of the sanction, the court considered that The Rybak Firm has repeatedly violated the aforesaid rule. With respect to respondent’s counsel, while it is accurate, as her firm suggests, that it was “not their appeal,” under the rule both parties bear the responsibility to notify the court of a settlement. Thus, under the circumstances, the failure of counsel to promptly advise this court that the appeal should not be calendared warrants imposition of sanctions in the amounts indicated.By: Pesce, P.J., Aliotta, Elliot, JJ.2017-148 K C. PLAZA RESIDENCES, L.P. v. PRINCE — Motion by appellant on a consolidated appeal from orders of the Civil Court of the City of New York, Kings County, entered November 25, 2016 and January 3, 2017, respectively, in effect, to set aside so much of the decision and order on motion of this court dated October 25, 2017 as granted the branch of respondent’s motion seeking to vacate a stay granted by decision and order on motion of this court dated March 16, 2017, and to reinstate and continue the stay.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.February 9, 2018By: Pesce, P.J., Aliotta, Solomon, JJ.2017-1019 Q C. STATE FARM FIRE AND CAS. CO. v. RUSSELL — Motion by appellant, in effect, to vacate a decision and order on motion of this court dated October 18, 2017, which, among other things, dismissed an appeal from an order of the Civil Court of the City of New York, Queens County, entered March 17, 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.PESCE, P.J., and ALIOTTA, J., concur.SOLOMON, J., taking no part.February 9, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-1096 Q C. STEPHENS v. TRI-STATE INS. CO. — Motion by respondent to dismiss an appeal from a judgment of the Civil Court of the City of New York, Queens County, entered April 7, 2017, for failure to prosecute.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied and the appeal shall be perfected by April 6, 2018; and it is further,ORDERED that in the event the appeal is not perfected on or before April 6, 2018, the court, on its own motion, may dismiss the appeal, or respondent may move to dismiss the appeal on three days’ notice, and may serve such application in person.February 9, 20182017-1795 K C. U.S. EQUITIES CORP. v. CONYERS — Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, entered June 1, 2017, to continue a stay granted by decision and order on motion of this court dated October 26, 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 on condition that appellant perfect the appeal by April 6, 2018; and it is further,ORDERED that in the event that the above condition is 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 9, 20182018-11 K C. TSONG HUI CHANG v. APPLETON — Motion by appellant for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered December 19, 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 9, 20182018-12 K C. NASSAU COMMUNITY HOLDING, LLC v. COVINGTON-BROOKS — Motion by appellant for a stay pending the determination of the appeal from an order of the Civil Court of the City of New York, Kings County, entered December 19, 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 9, 20182018-56 K C. BEVERLY CT. ASSOC., LLC v. MANWARING — Motion by appellant on an appeal from a decision of the Civil Court of the City of New York, Kings County, dated August 16, 2017, to direct respondent to pay use and occupancy.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.We note that appellant, if it be so advised, may commence a plenary action to recover the outstanding use and occupancy without prejudicing its right to prosecute the appeal in this holdover proceeding (RPAPL 711 [1]; 1035 Washington Realty, LLC v. Grange, 2009 NY Slip Op 86385[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Martine Assoc., LLC v. Donahoe, NYLJ, July 19, 2005 [App Term, 9th & 10th Jud Dists]; 17th Holding v. Rivera, NYLJ, Aug. 15, 2002 [App Term, 2d & 11th Jud Dists]).February 9, 20182018-114 K C. 97-101 REALTY, LLC v. SANCHEZ — Motion by appellant for a stay of all proceedings, including trial, pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered December 6, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted on condition the appeal be perfected by May 4, 2018 and on the further condition that within 10 days of the date of this decision and order on motion appellant pay respondent any and all arrears in rent and/or use and occupancy at the rate of $1,000 per month, and continue to pay respondent use and occupancy at a like rate as it becomes due; and it is further,ORDERED that in the event 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 9, 2018Ninth and TenthJudical DisTRICTSBy: Garguilo, J.P., Tolbert, Ruderman, JJ.Robert B. Little, appellant pro se.Louis F. McIntyre, d/b/a Louis F. McIntyre, M.D., P.C., respondent pro se (no brief filed).2016-2867 W C. LITTLE v. McINTYRE – Appeal from a judgment of the City Court of White Plains, Westchester County (JoAnn Friia, J.), entered April 1, 2016. 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 damages in the principal sum of $2,120.76, representing the cost of medication for which he did not receive Medicare reimbursement. At a nonjury trial, plaintiff testified that he was covered by Medicare and that defendant Dr. Louis McIntyre had given plaintiff a prescription for an injectible medication for plaintiff’s knee pain which plaintiff had to provide to Dr. McIntyre for Dr. McIntyre to administer. When plaintiff asked Dr. McIntyre’s office manager if plaintiff would be reimbursed for his purchase of the medication, the office manager told him that she did not know, but that other patients in plaintiff’s situation who had received the same medication had not complained about the amount they had received as reimbursement. Plaintiff stated that he subsequently purchased the medication, in reliance upon the office manager’s representation, and, ultimately, was denied reimbursement despite numerous applications and subsequent appeals to Medicare. Defendant’s office manager testified that she never promised plaintiff that he would be reimbursed in whole or in part by Medicare but confirmed that she had told plaintiff that, after helping other patients with the paperwork, she had heard no complaints from them. Following the trial, the City Court found in favor of defendant, and a judgment was entered on April 1, 2016 dismissing the action.In a small claims action, our review is limited to the 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 [2000]).To the extent that plaintiff seeks to recover under a theory of promissory estoppel, plaintiff’s testimony, even if accepted as true, failed to establish the elements thereof (Schwartz v. Miltz, 77 AD3d 723 [2010]). Defendant’s office manager never made a promise to plaintiff. At best, her statement involved her prediction as to what the response of a third party, Medicare, would be to plaintiff’s application for reimbursement. Moreover, plaintiff never indicated that the medical procedure he had undergone had been conditioned upon his being reimbursed for the medication. Under the circumstances, we find that the judgment rendered substantial justice according to the rules and principles of substantive law (see UCCA 1804, 1807).Accordingly, the judgment is affirmed.GARGUILO, J.P., and RUDERMAN, J., concur.TOLBERT, J., taking no part.February 9, 2018By: Marano, P.J., Tolbert, Garguilo, JJ.2015-114 W C. OSBORN v. BADIE – Appeal from an order of the Justice Court of the Hastings-On-Hudson, Westchester County, entered July 9, 2014.On the court’s own motion, it isORDERED that the parties are directed to show cause before this court why (1) so much of the above-entitled appeal as was taken by appellant Ottilie Badie should not be dismissed and so much of the order of the Justice Court entered July 9, 2014 and of all the other proceedings taken in the Justice Court, including the default final judgment entered April 20, 2005, as were against her vacated as nullities on the ground that the Justice Court lacked subject matter jurisdiction over the cause of action against that appellant, and (2) so much of the appeal as was taken on behalf of Claude Badie should not be dismissed as abandoned, by filing an affidavit or affirmation on those issues with the Clerk of this court on or before March 5, 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 on the parties and/or their attorneys by regular mail.A review of the record on appeal indicates that appellant Ottilie Badie signed the lease, not as tenant, but only as “co-signatory,” and that she was named in this nonpayment proceeding only as “co-signer.” Inasmuch as, in a nonpayment proceeding, the court lacks subject matter jurisdiction to adjudicate a claim for a debt owed by a guarantor to the landlord (see State Realty, LLC v. Ger, 55 Misc 3d 133[A], 2017 NY Slip Op 50439[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the parties are directed to show cause why so much of the appeal as was taken by appellant Ottilie Badie should not be dismissed and all the proceedings taken against her in the Justice Court vacated as nullities. In addition, inasmuch as counsel representing the interests of the deceased Claude Badie has previously advised this court that he is not interested in continuing so much of the appeal as was taken on his behalf, the parties shall also show cause why that portion of the appeal should not be dismissed as abandoned.February 9, 20182017-1998 N C. MIDWOOD TOTAL REHAB, P.C. v. GEICO INS. CO. – Motion by appellant for a stay pending the determination of an appeal from an order of the District Court of Nassau County, First District, entered July 12, 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.February 9, 2018
