Appellate Division Second Department Hand Down List decided on: February 21, 2018 By Dillon, J.P.; Roman, Miller and Lasalle, JJ.

Lucie Taustine ap, v. Incorporated Village of Lindenhurst, res — (Index No. 603321/15)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Rouse, J.), entered September 19, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.Lucie Taustine alleges that she was injured when she tripped and fell while walking on an allegedly uneven sidewalk in Lindenhurst near a tree well and a dedication plaque. Taustine, and her husband suing derivatively, commenced this action against the defendant. After discovery, the defendant moved for summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the alleged defect (see Code of the Village of Lindenhurst §6-628). The Supreme Court granted the motion. The plaintiffs appeal.“A municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” (Forbes v. City of New York, 85 AD3d 1106, 1107; see Poirier v. City of Schenectady, 85 NY2d 310; Masotto v. Village of Lindenhurst, 100 AD3d 718). Here, the defendant is a municipality that has enacted a prior written notice law (see Masotto v. Village of Lindenhurst, 100 AD3d 718; Braver v. Village of Cedarhurst, 94 AD3d 933, 934). ”Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Miller v. Village of E. Hampton, 98 AD3d 1007, 1008).The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the condition upon which Taustine allegedly tripped and fell, and that it did not create the dangerous condition through an affirmative act of negligence (see Masotto v. Village of Lindenhurst, 100 AD3d at 718).In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs neither argued in opposition to the defendant’s motion at the trial level nor argue on this appeal that the defendant had prior written notice of the condition. Further, the plaintiffs failed to raise a triable issue of fact in opposition as to whether the defendant created the condition through an affirmative act of negligence which immediately resulted in the existence of the defect (see Methal v. City of New York, 116 AD3d 743, 744). The plaintiffs failed to allege the special use exception in either the notice of claim, the complaint, or the bill of particulars, and therefore, that new theory of liability was improperly raised for the first time in opposition to the defendant’s motion for summary judgment (see Aleksandrova v. City of New York, 151 AD3d 427; Methal v. City of New York, 116 AD3d at 744; Pinn v. Baker’s Variety, 32 AD3d 463, 464).Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.DILLON, J.P., ROMAN, MILLER and LASALLE, JJ., concur.By Rivera, J.P.; Roman, Lasalle and Barros, JJ.US Bank N.A., etc., res, v. Winston Ballin appellants def — (Index No. 22994/09)In an action to foreclose a mortgage, the defendants Winston Ballin and Julie Ballin appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated October 8, 2015, as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against them, to strike their answer, and to appoint a referee.ORDERED that the appeal by the defendant Julie Ballin is dismissed; and it is further,ORDERED that the appeal by the defendant Winston Ballin from so much of the order as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Julie Ballin and to strike the answer insofar as asserted by the defendant Julie Ballin is dismissed, as he is not aggrieved by that portion of the order (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144); and it is further,ORDERED that the order is reversed insofar as reviewed on the appeal by the defendant Winston Ballin, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Winston Ballin, to strike the answer insofar as asserted by the defendant Winston Ballin, and to appoint a referee are denied, and so much of the order as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Julie Ballin and to strike the answer insofar as asserted by the defendant Julie Ballin is vacated; and it is further,ORDERED that one bill of costs is awarded to the defendant Winston Ballin.On November 17, 2006, the defendant Winston Ballin executed a note in the amount of $612,000 in favor of the original lender, New Century Mortgage Corporation. Winston Ballin and the defendant Julie Ballin (hereinafter together the Ballins) executed a mortgage securing real property in favor of the original lender, with Mortgage Electronic Registration Systems, Inc., “acting solely as a nominee for Lender and Lender’s successors and assigns.”In October 2009, the plaintiff commenced this action to foreclose the mortgage, alleging that the Ballins defaulted on the loan by failing to make the payment due on September 1, 2008, and subsequent payments due thereafter. The Ballins served an answer in which they asserted as an affirmative defense that the plaintiff lacked standing to commence the action. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the Ballins, to strike their answer, and to appoint a referee. The Supreme Court granted the motion, and the Ballins appeal.Julie Ballin did not oppose the plaintiff’s motion and, therefore, is not aggrieved by the order granting that motion (see Mixon v. TBV, Inc., 76 AD3d 144, 157 n 3; Whiteman v. Yeshiva & Mesivta Torah Temimah, 255 AD2d 378, 379). Accordingly, the appeal by Julie Ballin must be dismissed.The plaintiff’s standing was placed in issue by the Ballins’ answer. Consequently, on its motion for summary judgment, the plaintiff was required to prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v. Idarecis, 133 AD3d 702, 703; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973; U.S. Bank, N.A. v. Collymore, 68 AD3d 752). ”A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced” (LNV Corp. v. Francois, 134 AD3d 1071, 1072). ”Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” (U.S. Bank, N.A. v. Collymore, 68 AD3d at 754).The plaintiff attempted to establish its standing by submitting an affidavit of Jillian Thrasher, a contract management coordinator at Ocwen Loan Servicing, LLC (hereinafter Ocwen), the plaintiff’s loan servicer. Thrasher averred, in relevant part, that her affidavit was based upon her review of Ocwen’s business records, and that upon review of such records, the note was physically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstrate that the records relied upon by Thrasher were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thrasher, an employee of Ocwen, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures (see Bank of N.Y. v. Willis, 150 AD3d 652, 653; Arch Bay Holdings, LLC v. Albanese, 146 AD3d 849, 852; Aurora Loan Servs., LLC v. Mercius, 138 AD3d 650, 652). Thus, the plaintiff failed to establish, prima facie, that it had standing to commence the action.Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Winston Ballin, to strike the answer insofar as asserted by Winston Ballin, and to appoint a referee, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).In light of the foregoing, Winston Ballin’s remaining contentions need not be reached.RIVERA, J.P., ROMAN, LASALLE and BARROS, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Tuita Cohen, ap, v. Lebgutt Realty, LLC, et al., res — (Index No. 24446/12)Appeal from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated December 17, 2014. The order granted the separate motions of the defendants Lebgutt Realty, LLC, and Ahava Medical Rehabilitation Center and the defendant Liya Luo for summary judgment dismissing the complaint insofar as asserted against each of them.ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Lebgutt Realty, LLC, and Ahava Medical Rehabilitation Center for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendants Lebgutt Realty, LLC, and Ahava Medical Rehabilitation Center, and one bill of costs to the defendant Liya Luo payable by the plaintiff.Following surgery, the plaintiff received physical therapy from the defendant Liya Luo at the defendant Ahava Medical Rehabilitation Center (hereinafter Ahava), which was located on premises owned by the defendant Lebgutt Realty, LLC (hereinafter Lebgutt). The plaintiff alleged that during one such session, Luo placed the plaintiff on a treadmill, started the treadmill, and left the room while the plaintiff walked on the treadmill. The plaintiff alleged that a few minutes after Luo left the room, the machine began malfunctioning, moving very quickly and inclining and declining, and that she was thereupon thrown from the treadmill and injured. The plaintiff subsequently commenced this action to recover damages for her injuries. Lebgutt and Ahava moved for summary judgment dismissing the complaint insofar as asserted against them, and Luo separately moved for summary judgment dismissing the complaint insofar as asserted against her. The Supreme Court granted both motions, and the plaintiff appeals.Luo demonstrated, prima facie, that she was entitled to judgment as a matter of law. Contrary to the plaintiff’s contention, her allegation of negligent supervision sounded in medical malpractice, not ordinary negligence. Because the plaintiff challenged Luo’s assessment of the plaintiff’s supervisory needs during her physical therapy session, the conduct at issue derived from the duty owed to the plaintiff as a result of the physical therapist-patient relationship and was substantially related to her medical treatment (see Weiner v. Lenox Hill Hosp., 88 NY2d 784, 788; Scott v. Uljanov, 74 NY2d 673, 674-675; Estate of Bell v. WSNCHS N., Inc., 153 AD3d 498, 499-500; Thurston v. Interfaith Med. Ctr., 66 AD3d 999, 1000-1001; Santana v. St. Vincent Catholic Med. Ctr. of N.Y., 65 AD3d 1119, 1120). Luo demonstrated, prima facie, through the submission of an expert affidavit, that accepting the plaintiff’s version of events as true, she did not depart from the accepted standard of care for physical therapy (see Archer v. Haeri, 91 AD3d 685, 685-686; Stukas v. Streiter, 83 AD3d 18, 23-24). In opposition, the plaintiff failed to raise a triable issue of fact, as she did not submit an expert affidavit (see Koster v. Davenport, 142 AD3d 966, 969; Vera v. Soohoo, 41 AD3d 586, 587). Nor did the plaintiff show that summary judgment was premature, as she did not demonstrate that additional discovery might lead to relevant evidence (see CPLR 3212[f]; Reynolds v. Avon Grove Props., 129 AD3d 932, 933).As to premises liability, Luo demonstrated, prima facie, that she owed no duty to the plaintiff (see Suero-Sosa v. Cardona, 112 AD3d 706, 707). In opposition, the plaintiff failed to raise a triable issue of fact or demonstrate that summary judgment was premature (see CPLR 3212[f]; Reynolds v. Avon Grove Props., 129 AD3d at 933). Accordingly, the Supreme Court properly granted Luo’s motion for summary judgment dismissing the complaint insofar as asserted against her.The plaintiff correctly contends that Lebgutt and Ahava failed to demonstrate, prima facie, that they were entitled to judgment as a matter of law. In support of their motion, Lebgutt and Ahava relied entirely on an argument that the plaintiff demonstrated such confusion during her deposition that there was no evidence that the alleged fall from the treadmill ever occurred. Contrary to Lebgutt and Ahava’s contention, the plaintiff, while expressing confusion over Ahava’s location, testified at her deposition that the fall occurred during a session with Luo, and Luo testified at her deposition that during the relevant time period she worked at Ahava. The plaintiff’s and Luo’s conflicting deposition testimony as to whether the fall occurred raised credibility issues that precluded summary judgment (see Kolivas v. Kirchoff, 14 AD3d 493, 493). Moreover, Lebgutt and Ahava failed to establish, prima facie, that they did not create the allegedly defective condition or that they did not have actual or constructive notice of the allegedly defective condition (see Suero-Sosa v. Cardona, 112 AD3d at 707; Gover v. Mastic Beach Prop. Owners Assn., 57 AD3d 729, 730). Accordingly, the Supreme Court should have denied their motion regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Ellen Robinson res, v. 47 Thames Realty, LLC, ap — (Index No. 17405/13)Appeal from an amended order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated December 11, 2014. The amended order, insofar as appealed from, granted that branch of the plaintiffs’ motion which was pursuant to CPLR 602 to remove two holdover proceedings entitled 47 Thames Realty, LLC v. Shillingburg and 47 Thames Realty, LLC v. Kreiling, pending in the Civil Court, Kings County, under Index Nos. 50394/14 and 50396/14, respectively, to the Supreme Court, Kings County, in order to consolidate them with this action to the extent of removing those proceedings and joining them for trial with this action.ORDERED that the amended order is affirmed insofar as appealed from, with costs.In August 2013, the defendant in this action, 47 Thames Realty, LLC (hereinafter the landlord), sought to evict four of its tenants, the plaintiffs in this action, Ellen Robinson, Don Shillingburg, Amy Kreiling, and Roy Williams (hereinafter collectively the tenants), by serving them with 30-day notices of termination of their tenancies. In September 2013, the tenants commenced this action in the Supreme Court, Kings County, seeking, among other things, an injunction precluding their ejectment on the ground that the landlord’s termination notices were precluded by adverse determinations against the landlord in prior proceedings against the tenants on the same grounds. In December 2013, the landlord commenced holdover proceedings against the tenants in the Housing Part of the Civil Court, Kings County. The tenants subsequently moved in the Supreme Court, inter alia, pursuant to CPLR 602 to remove the holdover proceedings from the Civil Court to the Supreme Court, and to consolidate those proceedings with this action. The Supreme Court granted those branches of the motion to the extent of removing those proceedings and joining them for trial with this action. The landlord appeals.A motion to consolidate or join for trial is addressed to the sound discretion of the trial court and, absent a showing of substantial prejudice by the party opposing the same, is proper where there are common questions of law and fact (see CPLR 602[a]; Moses v. B & E Lorge Family Trust, 147 AD3d 1043, 1045; Best Price Jewelers.Com, Inc. v. Internet Data Stor. & Sys., Inc., 51 AD3d 839, 839; Flaherty v. RCP Assoc., 208 AD2d 496, 498; Zupich v. Flushing Hosp. & Med. Ctr., 156 AD2d 677, 677-678). Further, consolidation or joinder for trial is appropriate to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts (seeZupich v. Flushing Hosp. & Med. Ctr., 156 AD2d at 677-678).Here, the Supreme Court providently exercised its discretion in granting those branches of the tenants’ motion which were for removal and consolidation of the Civil Court proceedings with this action to the extent of removing those proceedings and joining them for trial with this action. The evidence and testimony in those proceedings and this action involve the same essential facts and transactions between the parties, and will require the determination of common issues. Moreover, the landlord failed to demonstrate any prejudice that might result from joinder for trial (see Best Price Jewelers.Com, Inc. v. Internet Data Stor. & Sys., Inc., 51 AD3d at 839; Zupich v. Flushing Hosp. & Med. Ctr., 156 AD2d at 678).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Ellen Robinson res, v. 47 Thames Realty, LLC, ap — (Index No. 17405/13)Appeal from an order of the Supreme Court, Kings County (Bernadette Bayne, J.), dated February 18, 2015. The order, insofar as appealed from, granted that branch of the plaintiffs’ motion which was for summary judgment on their cause of action to permanently enjoin the defendant, inter alia, from serving any notices of termination of the plaintiffs’ tenancies or commencing or maintaining any actions or proceedings for recovery of possession or eviction of the plaintiffs from their respective apartments based on the ground that they are not tenants subject to and protected by the Rent Stabilization Law and Code, or asserting against the plaintiffs any action or proceeding based on grounds not authorized by the Rent Stabilization Law and Code.ORDERED that the order is affirmed insofar as appealed from, with costs.In 2006, the defendant in this action, 47 Thames Realty, LLC (hereinafter the landlord), commenced actions for ejectment and for use and occupancy against four of its tenants, the plaintiffs in this action (hereinafter collectively the tenants). Those actions were consolidated into a single action, and in 2008, the Supreme Court dismissed that action after the landlord failed to appear at a compliance conference. The landlord moved to vacate the default pursuant to CPLR 5015(a)(1), citing law office failure, but did not provide an affidavit of merit. The Supreme Court denied the landlord’s motion, and this Court affirmed (see 47 Thames Realty, LLC v. Robinson, 61 AD3d 923).Thereafter, the landlord moved to restore the case to the calendar and to vacate its default pursuant to CPLR 5015(a)(1). The Supreme Court, inter alia, denied the motion, and this Court affirmed (see 47 Thames Realty, LLC v. Robinson, 85 AD3d 851).In 2013, the landlord served the tenants with 30-day notices of termination, and commenced holdover proceedings against them in the Housing Part of the Civil Court, Kings County (hereinafter the 2013 holdover proceedings). The tenants commenced this action in the Supreme Court, seeking, among other things, injunctive relief.The Supreme Court removed the 2013 holdover proceedings from the Civil Court and joined them for trial with this action. The court subsequently granted that branch of the tenants’ motion which was for summary judgment on their cause of action to permanently enjoin the landlord, inter alia, from serving any notices of termination of the tenants’ tenancies or commencing or maintaining any actions or proceedings for recovery of possession or eviction of the tenants from their respective apartments based on the ground that they are not tenants subject to and protected by the Rent Stabilization Law and Code, or asserting against the tenants any action or proceeding based on grounds not authorized by the Rent Stabilization Law and Code. The landlord appeals.The tenants established their prima facie entitlement to judgment as a matter of law on the cause of action seeking a permanent injunction (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853) by submitting evidence which demonstrates that they are tenants in a building subject to the protection of the Rent Stabilization Law and Code (see Multiple Dwelling Law §§281[5]; 286[2][i]; Rent Stabilization Code §2524.1[a]; see also Madeline D’Anthony Enters., Inc. v. Sokolowsky, 101 AD3d 606, 609). In opposition, the landlord failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557).The landlord’s remaining contention is without merit.Accordingly, the Supreme Court properly granted that branch of the tenants’ motion which was for summary judgment on their cause of action for a permanent injunction.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.Linda C. Johnson, ap, v. Department of Education of City of New York res — (Index No. 502819/12)for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Claude S. Platton and Julie Steiner of counsel), for respondents.In an action to recover damages for employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez-Salta, J.), dated May 6, 2016, which granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.ORDERED that the order is affirmed, with costs.After receiving an annual rating of unsatisfactory for the 2011-2012 academic year, the plaintiff, a tenured teacher at Boys and Girls High School, filed a notice of claim on or about July 20, 2012, alleging employment discrimination on the basis of age in violation of Administrative Code of the City of New York §8-107. In September 2012, she commenced this action to recover damages for age discrimination and unlawful retaliation for taking legal action. The plaintiff alleged that the defendants “harassed [her] in an effort to force her to resign” by bringing false allegations of misconduct against her, performing biased evaluations, failing to offer her remediation, and engaging in disparate treatment in class assignments and treatment of supply requests. She sought back pay, damages for pain and suffering and damage to reputation, and attorney’s fees and costs.On October 12, 2012, the defendant Department of Education of City of New York filed disciplinary charges against the plaintiff, alleging, inter alia, lateness, absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students. In May, June, and July of 2013, a hearing pursuant to Education Law §3020-a was held on those charges before the New York State Education Department. At the hearing, the plaintiff argued that the main reason the charges were brought against her was “personality,” in that the administration did not like her “for personal reasons,” and that the administration failed to offer her remediation because it did not want “to deal with her.” In a determination dated December 20, 2013, the Hearing Officer sustained most of the specifications, and the plaintiff’s employment was terminated. The Hearing Officer found that there was no evidence that certain members of the administration treated the plaintiff unfairly, or that she was “targeted or discriminated against because of her personality or for any other reason.” The Hearing Officer further found that, although the administration’s limited offers of remediation “could be faulted,” the plaintiff was “openly hostile to remediation efforts or criticism from her supervisors,” which would explain the administration’s failure to offer more help.By notice of motion dated January 8, 2015, the defendants moved to dismiss the complaint in this action, among other things, as barred by the doctrine of collateral estoppel and for failure to state a cause of action (see CPLR 3211[a][5], [7]). In the order appealed from, the Supreme Court granted the defendants’ motion to dismiss, noting that “there is no connection between any discrimination or retaliation and [the plaintiff's] termination.”The findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect (see Matter of Czosek [Cheektowaga-Sloan Union Free School Dist.---Commissioner of Labor], 71 AD3d 1359, 1360; Burkybile v. Board of Educ. of Hastings-on-Hudson Union Free School Dist., 411 F3d 306, 311-312 [2d Cir]). In this context, collateral estoppel applies if “‘(1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal’” (Chiara v. Town of New Castle, 61 AD3d 915, 916, quoting Jeffreys v. Griffin, 1 NY3d 34, 39).A termination of employment for cause does not necessarily preclude the possibility of termination motivated by unlawful animus, since a jury could find that the plaintiff’s employment was terminated for discriminatory reasons, even if there were legitimate reasons for terminating employment (see Leon v. New York City Dept. of Educ., 612 Fed Appx 632, 635 [2d Cir]; Senno v. Elmsford Union Free Sch. Dist., 812 F Supp 2d 454, 472 [SD NY]). Since the New York City Human Rights Law (Administrative Code §8-107) must be construed broadly, unlawful discrimination must play no role in an employment decision (see Singh v. Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161; Bennett v. Health Mgt. Sys., Inc., 92 AD3d 29, 40; Williams v. New York City Hous. Auth., 61 AD3d 62, 78 n 27). Where mixed motives are alleged, the plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants’ conduct (see Williams v. New York City Hous. Auth., 61 AD3d at 78 n 27). Thus, even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment (see Singh v. Covenant Aviation Sec., LLC, 131 AD3d 1158), or allegations that the proffered explanation for the termination of the plaintiff’s employment was pretextual (see Bull v. Metropolitan Jewish Health Inc., 152 AD3d 639).The determination of the New York State Department of Education established that the reasons for the termination of the plaintiff’s employment were not pretextual, and that the termination was not motivated by age discrimination. The Hearing Officer further found that there was no evidence that the plaintiff “was targeted or discriminated against because of her personality or for any other reason.” Moreover, the question of why the plaintiff was not offered more remediation efforts was considered by the Hearing Officer, who attributed the reason to the plaintiff’s resistance to such efforts. These findings are entitled to collateral estoppel effect and, therefore, the Supreme Court properly directed the dismissal of so much of the complaint as alleged employment discrimination on the basis of age.Further, the plaintiff’s allegations of retaliation and disparate treatment were conclusory in nature and, therefore, insufficient to state a cause of action (see        Matter of England v. New York City Dept. of Envtl. Protection, 150 AD3d 996, 997; Askin v. Department of Educ. of the City of N.Y., 110 AD3d 621, 622).Accordingly, the defendants’ motion to dismiss the complaint was properly granted.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.Rosemarie Sacchetti-Virga, res, v. Freddy A. Bonilla ap — (Index No. 7980/15)In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 7, 2016, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.ORDERED that the order is affirmed, with costs.On June 15, 2015, the plaintiff allegedly sustained personal injuries as a result of a motor vehicle accident in which her vehicle was struck in the rear by a vehicle owned by the defendant Rosa Bonilla and operated by the defendant Freddy A. Bonilla. Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. After issue was joined, the defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the plaintiff allegedly executed a release of all claims against them arising out of the accident in exchange for a payment of $1,500. In the order appealed from, the Supreme Court denied the defendants’ motion. We affirm.“‘A release is a contract, and its construction is governed by contract law’” (Cardinal Holdings, Ltd. v. Indotronix Intl. Corp., 73 AD3d 960, 962, quoting Lee v. Boro Realty, LLC, 39 AD3d 715, 716; see Davis v. Rochdale Vil., Inc., 109 AD3d 867; Schiller v. Guthrie, 102 AD3d 852, 853; Kaminsky v. Gamache, 298 AD2d 361, 361). Generally, “‘a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress’” (Orangetown Home Improvements, LLC v. Kiernan, 84 AD3d 902, 903, quoting Global Precast, Inc. v. Stonewall Contr. Corp., 78 AD3d 432, 432; see Centro Empresarial Cempresa S.A. v. Amrica Movl, S.A.B. de C.V., 17 NY3d 269, 276; Patti Constr. Corp. v. 111-16 Atl. Ave. Realty Corp., 119 AD3d 756, 757). Where “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties” (Booth v. 3669 Delaware, 92 NY2d 934, 935, quoting Mangini v. McClurg, 24 NY2d 556, 563), and “the intent of the parties must be ascertained from the plain language of the agreement” (Kaminsky v. Gamache, 298 AD2d at 361; see Schiller v. Guthrie, 102 AD3d at 853-854).“In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff’s allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light” (see Ford v. Phillips, 121 AD3d 1232, 1234). ”A party may move for judgment dismissing one or more causes of action asserted against him on the ground that… the cause of action may not be maintained because of… [a] release” (CPLR 3211[a][5]). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” (Farber v. Breslin, 47 AD3d 873, 877; see Warmhold v. Zagarino, 106 AD3d 994, 995; Storman v. Storman, 90 AD3d 895, 898).Here, in support of their motion to dismiss the complaint, the defendants submitted an affidavit of their insurance carrier’s claims representative and a copy of the release signed by the plaintiff, which, by its terms, barred the instant action against them (see Pacheco v. 32-42 55th St. Realty, LLC, 139 AD3d 833, 834; Davis v. Rochdale Vil., Inc., 109 AD3d at 867; Schiller v. Guthrie, 102 AD3d at 854; Seff v. Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592, 593). In opposition, however, the plaintiff’s allegations were sufficient to raise a question of fact as to whether the defendants procured the release by fraud, whether the release was signed by the plaintiff under circumstances which indicate unfairness, and whether it was “not fairly and knowingly made” (Pacheco v. 32-42 55th St. Realty, LLC, 139 AD3d at 834 [internal quotation marks omitted]; see Warmhold v. Zagarino, 106 AD3d at 995; Fuentes v. Aluskewicz, 25 AD3d 727, 728).Accordingly the Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Rivera, J.P.; Hall, Barros and Brathwaite Nelson, JJ.MATTER of Joseph O. (Anonymous), res, v. Danielle B. (Anonymous) ap — (Docket Nos. V-2875-16, P-2877-16)Appeal, by permission, from an order of the Family Court, Orange County (Victoria B. Campbell, J.), entered January 9, 2017. The order denied the motion of Danielle B. and Joynell B. to dismiss Joseph O.’s petition for visitation with the subject child and his petition to establish his paternity of the child.ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, and the motion of Danielle B. and Joynell B. to dismiss Joseph O.’s petition for visitation with the subject child and his petition to establish his paternity of the child is granted.The respondents, Danielle B. and Joynell B., were married in Connecticut on July 21, 2009. They decided to have a child and met the petitioner, Joseph O., through the Internet in their search for a sperm donor. On February 21, 2011, the parties entered into a “Three-Party Donor Contract,” wherein they agreed, among other things, that the petitioner would provide the respondents with a semen sample for the purposes of artificial insemination, that he would have no parental rights or responsibilities in relation to any resulting children, and that he would not request or compel any guardianship or custody of, or visitation with, any child born from the artificial insemination procedure. On April 28, 2012, Danielle gave birth to the subject child. The birth certificate identifies Danielle and Joynell as the child’s parents, and the child was given Joynell’s surname.The petitioner commenced related paternity and visitation proceedings in September 2015, but the proceedings were dismissed without prejudice for failure to join Joynell, a necessary party. In June 2016, the petitioner commenced these proceedings seeking visitation with the child and to be declared the father of the child. The paternity petition acknowledged that the child was born through artificial insemination, and that the birth mother was married to Joynell at the time of conception, but it also alleged that the petitioner was the father of the child. In his visitation petition, the petitioner identified himself as the child’s biological father and alleged that visitation with him would be in the child’s best interests because he had an established relationship with the child since her birth.The respondents moved to dismiss the petitions, inter alia, on the grounds of the presumption of legitimacy under the common law and pursuant to Domestic Relations Law §73, and the doctrine of equitable estoppel. In support of their motion, the respondents asserted that the petitioner, who had waited nearly 3  years after the child’s birth to initiate a paternity proceeding, had no meaningful relationship with the child. They further asserted that the child had formed a parental bond and relationship with each of the respondents, with whom the child had lived since her birth.In opposition to the motion, the petitioner submitted an affidavit in which he stated that he had visited the child at the respondents’ home three to four times each year throughout the first three years of her life, and had celebrated birthdays and holidays with the child and her family, sending gifts when he could not be present. The petitioner further stated that he was not trying to replace either of the respondents as the child’s parent, and that he “would simply like to continue [his] relationship with [the child].” He contended that it would be in the child’s best interests to continue to have him in her life.The attorney for the child supported the respondents’ motion to dismiss, affirming that the child recognized only the respondents as her parents. In an affidavit in reply, the respondents asserted that they had maintained only limited communication with the petitioner, that the petitioner had seen the child “only sporadically,” and that the child did not recognize the petitioner as “anything other than an acquaintance of the family.”In an order entered January 9, 2017, the Family Court denied the motion. It found that the petitioner had set forth a prima facie showing that he was the child’s biological father, and therefore the burden shifted to the respondents to show that it was not in the child’s best interests for either a paternity test to be ordered or an order of filiation to be issued in the petitioner’s favor. The court concluded that but for the respondents permitting contact between the child and the petitioner, they would have been entitled to the presumption of legitimacy. However, since they permitted the contact, the court found that there were triable issues of fact as to whether the petitioner was equitably estopped from asserting paternity. The respondents appeal.The Family Court properly concluded that the irrebuttable presumption of parentage afforded by Domestic Relations Law §73 is not applicable to the circumstances of this case, since the artificial insemination done here was not performed by a person duly authorized to practice medicine (see Domestic Relations Law §73[1]). ”Although our Legislature has provided an avenue to avoid factual disputes essentially by creating an irrebuttable presumption of legitimacy where the prerequisites of the statute are met” (Laura WW. v. Peter WW., 51 AD3d 211, 217), those prerequisites were not met here. Nonetheless, Domestic Relations Law §73 was not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor (see Matter of Christopher YY. v. Jessica ZZ., __ AD3d __, 2018 NY Slip Op 00495, *10 [3d Dept 2018]; Matter of Kelly S. v. Farah M., 139 AD3d 90, 102-104; Laura WW. v. Peter WW., 51 AD3d at 214-215). Thus, the respondents’ failure to comply with Domestic Relations Law §73 only precludes them from the protections of that statute, but it does not foreclose the possibility that the paternity petition may be dismissed on other grounds (see Matter of Christopher YY. v. Jessica ZZ., __ AD3d __, 2018 NY Slip Op 00495, *11).It is an established legal presumption that every child born during a marriage is the legitimate child of both spouses (see Domestic Relations Law §24[1]; Family Ct Act §417; Matter of Fay, 44 NY2d 137, 141; Matter of David L. v. Cindy Pearl L., 208 AD2d 502, 503). The respondents correctly contend that because the child was conceived and born to the respondents during their marriage, there is a presumption that the child is the legitimate child of both respondents (see Domestic Relations Law §24[1]; Family Ct Act §417; Matter of Christopher YY. v. Jessica ZZ., __ AD3d __, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.---Han Ming T.], 153 AD3d 1203, 1205; Matter of Carl Henry P. v. Tiwiana L., 82 AD3d 1245, 1246). However, the presumption of legitimacy is rebuttable (see Matter of Findlay, 253 NY 1, 7; Matter of Barbara S. v. Michael I., 24 AD3d 451; Matter of Walker v. Covington, 287 AD2d 572, 572; Murtagh v. Murtagh, 217 AD2d 538), and thus its application alone does not warrant the summary denial of a paternity petition (see Matter of Marilene S. v. David H., 63 AD3d 949, 950). We need not decide here what proof might rebut the presumption of legitimacy in this case (cf. Matter of Christopher YY. v. Jessica ZZ., __ AD3d __, 2018 NY Slip Op 00495), as we find that the respondents were entitled to dismissal of the paternity petition on the ground of equitable estoppel.The doctrine of equitable estoppel may be raised to prevent a biological father from asserting paternity rights in order to “preserve the status of legitimacy for the child” (Matter of Alberto T. v. Tammy D., 274 AD2d 587, 587; see Matter of Felix O. v. Janette M., 89 AD3d 1089, 1090; Matter of Carl Henry P. v. Tiwiana L., 82 AD3d at 1246; Matter of Peter BB. v. Robin CC., 256 AD2d 889, 890; Matter of David L. v. Cindy Pearl L., 208 AD2d at 503; Vito L. v. Filomena L., 172 AD2d 648, 650; Purificati v. Paricos, 154 AD2d 360, 362; Matter of Ettore I. v. Angela D., 127 AD2d 6, 13; Matter of Sharon GG. v. Duane HH., 95 AD2d 466, 468-469, affd 63 NY2d 859) or to otherwise protect a child’s established relationship with another who has assumed the parental role (see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6; Matter of Shondel J. v. Mark D., 7 NY3d 320, 327; Matter of Joyce S. v. Kevin M., 132 AD3d 1419, 1420; Matter of Fidel A. v. Sharon N., 71 AD3d 437; Matter of Juan A. v. Rosemarie N., 55 AD3d 827, 828; Matter of Richard W. v. Roberta Y., 240 AD2d 812, 814-815; Terrence M. v. Gale C., 193 AD2d 437, 437-438). In general, the doctrine of equitable estoppel “is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought” (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 NY2d 175, 184; see Matter of John Robert P. v. Vito C., 23 AD3d 659, 661; Jean Maby H. v. Joseph H., 246 AD2d 282, 285; Matter of Boyles v. Boyles, 95 AD2d 95, 97). An estoppel defense may be invoked “where the failure to promptly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of that right” (Matter of John Robert P. v. Vito C., 23 AD3d at 661; see Matter of Shondel J. v. Mark D., 7 NY3d at 327). ”The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child” (Matter of Smythe v. Worley, 72 AD3d 977, 978; see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d at 6; Matter of Felix O. v. Janette M., 89 AD3d at 1090; Matter of Juan A. v. Rosemarie N., 55 AD3d at 827-828; Matter of John Robert P. v. Vito C., 23 AD3d at 661).Here, it is undisputed that all of the parties intended that the petitioner would not be a parent to the child, even if they did contemplate some amount of contact after birth. The petitioner was not present at the child’s birth, and was not named on her birth certificate. Despite the fact that he was undeniably aware of the child’s birth and his possible claim to paternity, the petitioner waited more than three years to assert his claim of parentage. During that time, the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her. Although the petitioner asserts that he has had some contact with the child, he does not claim that he has developed a parental relationship with the child or that she recognizes him as a father. Significantly, the petitioner acknowledges that he does not actually seek a parental role, only that he wants a legal right to visitation with the child. Under these circumstances, we find that a hearing was unnecessary, and it is in the child’s best interests to dismiss the paternity petition on the ground of equitable estoppel (see Matter of Carl Henry P. v. Tiwiana L., 82 AD3d at 1246; Matter of Alberto T. v. Tammy D., 274 AD2d at 588; Terrence M. v. Gale C., 193 AD2d 437; cf. Matter of Felix O. v. Janette M., 89 AD3d at 1090-1091). Under the particular circumstances presented here, it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure (see Matter of Felix O. v. Janette M., 89 AD3d 1089; Matter of Fidel A. v. Sharon N., 71 AD3d 437; Matter of Juan A. v. Rosemarie N., 55 AD3d 827; Matter of Peter BB. v. Robin CC., 256 AD2d 889; Matter of Richard W. v. Roberta Y., 240 AD2d 812; Matter of Ettore I. v. Angela D., 127 AD2d 6).Accordingly, the Family Court should have granted that branch of the respondents’ motion which was to dismiss the paternity petition on the ground of equitable estoppel. Since “[i]t has long been the rule in this State that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 NY3d at 29 [Pigott, J., concurring]; see Domestic Relations Law §70), upon dismissal of the paternity petition, that branch of the respondents’ motion which was to dismiss the visitation petition should have been granted as well.In light of our determination, we do not reach the parties’ remaining contentions.RIVERA, J.P., HALL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Rivera, Austin, Cohen and Barros, JJ.PEOPLE, etc., res, v. Austin Jones, ap — (Ind. No. 5022/15)Paul Skip Laisure, New York, NY (Hannah Zhao of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Rhea A. Grob of counsel; Robert Ho on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Betty J. Williams, J.), imposed March 30, 2016, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s waiver of his right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 265; People v. Rennick, 123 AD3d 1146; People v. Reyes, 121 AD3d 820; People v. Coleman, 116 AD3d 708) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., RIVERA, AUSTIN, COHEN and BARROS, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.MATTER of Linda R. Carlone, ap, v. Utica Mutual Assurance Company, res — (Index No. 601566/16)In a proceeding pursuant to Workers’ Compensation Law §29(5) for judicial approval of a settlement of a personal injury action nunc pro tunc, the petitioner appeals from an order of the Supreme Court, Nassau County (K. Murphy, J.), entered July 19, 2016, which denied the petition and, in effect, dismissed the proceeding.ORDERED that the order is affirmed, with costs.The petitioner was involved in a motor vehicle accident that allegedly caused her to sustain serious personal injuries. She filed a claim for workers’ compensation benefits, which, though contested, was granted upon a finding that the accident occurred during the course of her employment.The petitioner commenced an action against the driver of the other vehicle involved in the accident, alleging that she sustained serious injuries due to the other driver’s negligence. After the other driver died, a second action naming the Public Administrator of Nassau County as the defendant was commenced. The parties in the second action reached a settlement in which the defendant in that action agreed to pay the petitioner $7,500 from a policy with limits of $100,000. The petitioner had not obtained the prior approval of the petitioner’s workers’ compensation insurance carrier, Utica Mutual Assurance Company (hereinafter Utica). Upon learning of the settlement, Utica terminated the petitioner’s workers’ compensation benefits.Within three months of the settlement, the petitioner commenced this proceeding pursuant to Workers’ Compensation Law §29(5) for judicial approval of the settlement of the personal injury action nunc pro tunc. In opposition, Utica contended that its interests were not adequately protected by the settlement. The Supreme Court denied the petition and, in effect, dismissed the proceeding without a hearing, finding that the petitioner failed to establish the reasonableness of the settlement. The petitioner appeals.Pursuant to Workers’ Compensation Law §29(5), an employee who is the recipient of workers’ compensation benefits may settle a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon “obtaining either the written consent of the compensation carrier before the [settlement], or judicial approval of the [settlement] within three months after it” (Furtado v. Mario’s Bakery, 17 AD3d 527, 528; see Matter of Johnson v. Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19; Lobban v. Brown, 125 AD3d 612, 613; Matter of Jackson v. City of New York, 70 AD3d 694, 695).“The resolution of an application for nunc pro tunc approval of a settlement pursuant to Workers’ Compensation Law §29(5) is left to the discretion of the court” (Zamfino v. Furman, 1 AD3d 591, 592; see Lobban v. Brown, 125 AD3d at 613; Fidelity & Guar. Ins. Co. v. DiGiacomo, 125 AD3d 596, 599). Here, the petition and the supporting papers failed to include much of the information required by Workers’ Compensation Law §29(5) (see Alam v. Taxi Wheels to Lease, Inc., 57 AD3d 457, 458; Matter of Snyder v. CNA Ins. Cos., 306 AD2d 677, 678). Accordingly, the Supreme Court did not improvidently exercise its discretion in declining to approve the petitioner’s settlement with the third party nunc pro tunc (see Matter of Hermance v. Fireman’s Fund Ins. Co., 265 AD2d 328, 328-329).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Cohen, Duffy and Barros, JJ.PEOPLE, etc., res, v. James E. Currie, ap — (Ind. No. 2271/10)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated September 30, 2015 (People v. Currie, 131 AD3d 1265), affirming a judgment of the Supreme Court, Nassau County, rendered November 28, 2011.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., COHEN, DUFFY and BARROS, JJ., concur.By Rivera, J.P.; Miller, Hinds-Radix and Maltese, JJ.MATTER of Johnathan Johnson, pet, v. Carmen R. Velasquez, etc., res — Johnathan Johnson, Malone, NY, petitioner pro se.Eric T. Schneiderman, Attorney General, New York, NY (Angel M. Guardiola II of counsel), for respondent.Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit the respondent, Carmen R. Velasquez, a Justice of the Supreme Court, Queens County, from presiding over an action entitled Johnson v. “R” & “C” Gen. Constr. Co. Corp., commenced in the Supreme Court, Queens County, under Index No. 20061/12, and to compel that Justice to recuse herself from presiding over that action, and for declaratory relief, and application by the petitioner for poor person relief.ORDERED that the application to prosecute this proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352). The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 NY2d 12, 16). The petitioner failed to demonstrate a clear legal right to the relief sought. In addition, the petitioner cannot seek declaratory relief in a CPLR article 78 proceeding (see CPLR 3017).RIVERA, J.P., MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.MATTER of Catherine M. Diaz, res, v. Kris Smatkitboriharn, ap — (Docket No. F-15223-15/15A)Janet L. Brown, Jamaica, NY, for appellant.Yitzhak & Epstein P.C., Great Neck, NY (Erica T. Yitzhak of counsel), for respondent.Appeal from an order of the Family Court, Queens County (John M. Hunt, J.), dated November 23, 2016. The order denied the father’s objections to an order of that court (Sudeep Kaur, S.M.), dated August 24, 2016, which, after a hearing, granted the mother’s petition for an upward modification of the father’s child support obligation and to direct the father to pay child support arrears.ORDERED that the order dated November 23, 2016, is affirmed, without costs or disbursements.The parties were married on September 14, 2007, and divorced by a judgment of divorce dated October 28, 2011. They have three children together. Pursuant to the terms of a stipulation of settlement dated March 25, 2011, which was incorporated but not merged into the judgment of divorce, the father was directed to pay the sum of $200 per month for child support. In August 2015, the mother filed a petition for an upward modification of the father’s child support obligation and to direct the father to pay child support arrears for the period of January 2012 to August 2015. Following a hearing, at which the father represented himself, in an order dated August 24, 2016, the Support Magistrate granted the mother’s petition in its entirety. Thereafter, the father filed timely objections to the Support Magistrate’s order, which the Family Court denied in an order dated November 23, 2016. The father appeals from the order dated November 23, 2016.The father’s contention that the mother failed to demonstrate a substantial change in circumstances sufficient to warrant an upward modification of his child support obligation is not properly before this Court, as it was not raised in his objections to the Support Magistrate’s order (see Matter of Daily v. Govan, 136 AD3d 1029, 1031; Matter of Worner v. Gavin, 134 AD3d 1043). In any event, his contention is without merit.Since the parties’ stipulation of settlement, which set forth the father’s child support obligation, was executed after the effective date of the 2010 amendments to Family Court Act §451, in order to establish an entitlement to an upward modification, the mother had the burden of demonstrating “a substantial change in circumstances” (Family Ct Act §451[3][a]; see Matter of Lagani v. Li, 131 AD3d 1246, 1247-1248; Matter of Pepe v. Pepe, 128 AD3d 831, 834). ”Among the factors to be considered in determining whether there has been a change in circumstances warranting an upward modification of support are ‘the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children’” (McMahon v. McMahon, 19 AD3d 464, 464-465, quoting Shedd v. Shedd, 277 AD2d 917, 918; see Matter of Baumgardner v. Baumgardner, 126 AD3d 895, 897). ”‘[T]he [custodial parent's] financial status is also a proper consideration’” (Matter of Green v. Silver, 96 AD3d 843, 845, quoting Matter of Boden v. Boden, 42 NY2d 210, 212).Here, the mother presented uncontroverted testimony and other evidence as to specific expenses related to the care of the children, including specific increased expenses related to the children’s extracurricular activities. In addition, she submitted her 2015 income tax return, which, together with her testimony and financial disclosure affidavit, revealed that even with the father’s $200 child support contribution, the mother was financially unable to meet the needs of the children. The father failed to provide complete and credible financial information. Under these circumstances, the Support Magistrate properly concluded that there was a substantial change in circumstances which warranted a modification of the existing order of support (see Matter of Anderson v. Anderson, 92 AD3d 779, 780; Matter of Ryan v. Levine, 80 AD3d 767, 767).Contrary to the father’s contention, he was not deprived of the right to counsel. The father did not have a right to assigned counsel in this support proceeding (see Family Ct Act §262[a]; Matter of Nicotra v. Nicotra, 139 AD3d 1070; Matter of Lada v. Lada, 231 AD2d 521), and the record establishes that the father was advised of his right to retain counsel but instead elected to represent himself with regard to this proceeding (see Family Ct Act §433[a]; Matter of Lada v. Lada, 231 AD2d 521). Moreover, since the father chose to represent himself at the hearing, the resultant award will not be set aside due to the alleged inadequacy of that self-representation (see Matter of Adams-Eppes v. Fulton, 195 AD2d 455; Linder v. Linder, 122 AD2d 27).The father’s remaining contentions are without merit.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Gator Hillside Village, LLC, res, v. Schuckman Realty, Inc., ap — (Index No. 15368/13)In an action for declaratory relief, the defendant appeals (1) from an order of the Supreme Court, Suffolk County (Mayer, J.), dated March 4, 2016, which granted the plaintiff’s motion for summary judgment declaring the amount of the brokerage commission due to the defendant from the negotiation of a certain lease agreement and, in effect, dismissing the defendant’s counterclaims, and (2), as limited by its brief, from so much of a judgment of the same court dated July 15, 2016, as, upon the order, declared that the brokerage commission due to the defendant was five percent of the rent for the first five years of the lease agreement, equaling $24,650, and dismissed the defendant’s counterclaims.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal from the intermediate order must be dismissed, as the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The plaintiff is the owner of a shopping center in Smithtown, which had commercial space for lease. The defendant is a real estate brokerage firm. One of its agents, Ari Malul, sent the plaintiff a letter of intent on behalf of a client, proposing to begin negotiations on a 10-year lease agreement. The initial proposal included an obligation by the plaintiff to pay the defendant a brokerage fee based on a certain rate. Negotiations ensued between Malul and James Goldsmith, the president of the plaintiff. During the negotiations, Goldsmith made it clear that the plaintiff would not pay the brokerage fee demanded by the defendant. In an email to Malul dated October 30, 2011, Goldsmith made a take-it-or-leave-it counteroffer in which the plaintiff would pay the defendant a commission of five percent of the rent for the first five years of the lease agreement if it wanted to move forward on the deal. Malul did not object to or reject the offer, but instead indicated that he would speak to his client regarding a good faith deposit. Subsequently, the lease agreement was entered into between the plaintiff and the client, with no further discussions of the brokerage fee. The defendant then demanded from the plaintiff a brokerage fee based on the rate set forth in its initial letter of intent. The plaintiff refused to pay that amount, and eventually commenced this action seeking a judgment declaring the amount of the brokerage commission due. The defendant served an answer with counterclaims seeking payment of the brokerage fee. The plaintiff moved for summary judgment on the complaint and, in effect, dismissing the counterclaims. The Supreme Court granted the motion and entered a judgment declaring that the brokerage commission due to the defendant is five percent of the rent for the first five years of the lease agreement, equaling $24,650, and dismissed the defendant’s counterclaims. The defendant appeals.“[T]he existence of a binding contract is not dependent on the subjective intent of [the parties]” (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d 397, 399; see Civilized People, Inc. v. Milk St. Caf, Inc., 129 AD3d 761, 762; Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 AD3d 720, 721). ”In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d at 399; see Civilized People, Inc. v. Milk St. Caf, Inc., 129 AD3d at 762; Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 AD3d at 721). ”That means, simply, that the manifestation of a party’s intention rather than the actual or real intention is ordinarily controlling” (Mencher v. Weiss, 306 NY 1, 7; see Hotchkiss v. National City Bank of N.Y., 200 F 287, 293 [SD NY], affd 201 F 664 [2d Cir], affd 231 US 50).Here, the plaintiff established, prima facie, its entitlement to a judgment declaring that the brokerage commission due was five percent of the rent for the first five years of the lease agreement by submitting evidence that the defendant did not reject the counteroffer, but instead proceeded to have its client enter into the lease agreement. ”While mere silence, when not misleading, cannot be construed as acceptance, a counteroffer may be accepted by conduct” (Daimon v. Fridman, 5 AD3d 426, 427 [citation omitted]; see McIntosh v. Niederhoffer, Cross & Zeckhauser, 106 AD2d 774, 775; John William Costello Assocs. v. Standard Metals Corp., 99 AD2d 227, 231; cf. Matter of Albrecht Chem. Co.        [Anderson Trading Corp.], 298 NY 437, 440). The defendant’s conduct of moving forward with the lease agreement upon receiving the plaintiff’s counteroffer established that the objective manifestation of the parties’ intent was an agreement to the brokerage rate set forth in the counteroffer (see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d at 399; Civilized People, Inc. v. Milk St. Caf, Inc., 129 AD3d at 762; Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 AD3d at 721). In opposition, the defendant failed to raise a triable issue of fact.The defendant’s remaining contentions are without merit.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.MATTER of Beatrice A. (Anonymous), a/k/a Beatrice J. (Anonymous), a/k/a Beatrice S. (Anonymous). SCO Family of Services, res; Selina A. (Anonymous), ap — (Docket No. B-8247-14)Appeal by the mother from an order of fact-finding and disposition of the Family Court, Queens County (Marybeth S. Richroath, J.), dated January 12, 2017. The order, insofar as appealed from, after a hearing, found that the mother abandoned the subject child, terminated her parental rights, and transferred guardianship and custody of the child to SCO Family of Services and the Commissioner of Social Services of the City of New York for the purpose of adoption.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.The petitioner, SCO Family of Services, commenced this proceeding to terminate the mother’s parental rights to the subject child. After a hearing, the Family Court found that the mother abandoned the child, terminated her parental rights, and transferred guardianship and custody of the child to the petitioner and the Commissioner of Social Services of the City of New York for the purpose of adoption.An order terminating parental rights may be granted where the petitioner has established, by clear and convincing evidence, that the parent abandoned the child for the six-month period before the petition was filed (see Social Services Law §384-b[3][g][i]; [4][b]; Matter of Annette B., 4 NY3d 509, 513; Matter of Tamar T.W. [Temorerie T.W.], 149 AD3d 852, 852). An intent to abandon a child is manifested by the parent’s “failure to visit the child or communicate with the child or the agency although able to do so and not prevented or discouraged from doing so by the agency” (Matter of Julius P., 63 NY2d 477, 481; see Matter of Jeremiah Kwimea T., 10 AD3d 691, 691). The burden rests on the parent to maintain contact, and the agency need not show diligent efforts to encourage the parent to visit or communicate with the child (see Matter of Gabrielle HH., 1 NY3d 549, 550; Matter of Julius P., 63 NY2d at 481; Matter of Tamar T.W. [Temorerie T.W.], 149 AD3d at 853).Here, the petitioner established, by clear and convincing evidence, that the mother abandoned the child during the six-month period before the filing of the petition (see Social Services Law §384-b[4][b]; Matter of Tamar T.W. [Temorerie T.W.], 149 AD3d at 853; Matter of Female F., 40 AD3d 993, 993-994). The mother’s incarceration did not relieve her of her responsibility to maintain contact or communicate with the child or the agency (see Matter of Tamar T.W. [Temorerie T.W.], 149 AD3d at 853; Matter of Female F., 40 AD3d at 994; Matter of Jahmir Domevlo J., 8 AD3d 280, 281).The mother’s remaining contention is without merit.MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Elijah G. (Anonymous). Administration for Childrens Services, res; Chastity G. (Anonymous) ap — (Docket No. N-15201-16)Carol Kahn, New York, NY, for appellant Chastity G.Warren S. Hecht, Forest Hills, NY, for appellant Christopher G.Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Diana Lawless of counsel), for respondent.Seymour W. James, Jr., New York, NY (Dawne A. Mitchell and John A. Newbery of counsel), attorney for the child.Appeals from an order of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated December 30, 2016. The order, after a hearing pursuant to Family Court Act §1028, denied the separate applications of the mother and the father for the return of the subject child to their custody during the pendency of the proceeding.ORDERED that the order is affirmed, without costs or disbursements.The Administration for Children’s Services filed a petition against Chastity G., the mother, and Christopher G., the father (hereinafter together the appellants), alleging that they neglected the subject child, Elijah G., by failing to provide adequate supervision and guardianship based on, inter alia, prior findings of neglect against them with respect to their other three children, a failure to benefit from services, and a failure to fully engage in mental health treatment. Thereafter, the appellants separately requested the return of Elijah to their custody during the pendency of the neglect proceeding. Following a hearing pursuant to Family Court Act §1028, the Family Court denied their requests.Contrary to the appellants’ contentions, the Family Court providently exercised its discretion in denying their separate requests pursuant to Family Court Act §1028 for the return of Elijah to their custody during the pendency of the neglect proceeding. There was sufficient evidence presented at the hearing to establish that Elijah’s emotional, mental, and physical health would be at imminent risk if he were returned to the appellants’ care (see Family Ct Act §1028). Under the circumstances of this case, we agree with the court’s determination not to return Elijah to the appellants’ custody until additional facts are adduced at a full fact-finding hearing (see Matter of Julissia B. [Navasia], 128 AD3d 690; see also Nicholson v. Scoppetta, 3 NY3d 357).SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Chambers, Sgroi, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Joseph Martin, ap — (Ind. No. 5924/15)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Elizabeth Foley, J.), imposed September 6, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337; People v. Lopez, 6 NY3d 248, 255).SCHEINKMAN, P.J., CHAMBERS, SGROI, MALTESE and CONNOLLY, JJ., concur.By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Aldeberto Loaiza, ap — (Ind. No. 10710/03)Appeal by the defendant from a judgment of the Supreme Court, Queens County, dated January 7, 2004 (Douglas Wong, J.), convicting him of criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence. By decision and order dated August 10, 2016, this Court remitted the matter to the Supreme Court, Queens County, for further proceedings on the defendant’s motion to withdraw his plea of guilty and, thereafter, a report limited to its findings with respect to the motion and whether the defendant established his entitlement to the withdrawal of his plea, and the appeal was held in abeyance in the interim (see People v. Loaiza, 142 AD3d 564). The Supreme Court, Queens County, has filed its report.ORDERED that the judgment is reversed, on the law, the defendant’s motion to withdraw his plea of guilty is granted, the plea of guilty is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.The defendant, a noncitizen, pleaded guilty to criminal possession of a controlled substance in the fourth degree in late 2003, and a judgment of conviction was rendered in January 2004. Although a timely notice of appeal was filed, in early 2005, upon the People’s motion, the defendant’s appeal was dismissed as abandoned. In 2013, upon the defendant’s motion, the dismissal was vacated and the appeal was reinstated.Under the highly unusual circumstances presented, as the defendant’s judgment of conviction is not yet final, he is entitled, on this direct appeal, to assert a claim of ineffective assistance of counsel based on Padilla v. Kentucky (559 US 356; see Chaidez v. United States, 568 US 342; People v. Varenga, 26 NY3d 529).Moreover, we agree with the defendant’s contention that the legal representation he received at the plea proceeding was deficient inasmuch as the plea minutes show that the defendant’s counsel, who was aware that the defendant was a noncitizen, advised him only that pleading guilty to a drug felony “may affect his [immigration] status” (emphasis added). Such advice was erroneous given that a felony drug conviction involving cocaine made the defendant’s deportation mandatory (see 8 USC §1227[a][2][B][i]; People v. Peque, 22 NY3d 168, 191), and where, as here, the deportation consequence is clear, counsel’s duty to give correct advice is equally clear (see Padilla v. Kentucky, 559 US at 369; People v. Doumbia, 153 AD3d 1139; People v. Corporan, 135 AD3d 485).In order for the defendant to obtain vacatur of his plea of guilty based on a Padilla violation, he must also establish that “‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’” (People v. Hernandez, 22 NY3d 972, 975, quoting Hill v. Lockhart, 474 US 52, 59). The Supreme Court, in its report, expressed the view that the evidence in the record, as supplemented by the defendant’s testimony at the hearing conducted upon remittal, evinced a reasonable probability that the defendant would not have pleaded guilty but for counsel’s incorrect advice regarding the immigration consequences of his plea, and would have insisted instead on going to trial. We agree, and discern no reason to disturb the credibility determinations made by the court (see People v. Elting, 18 AD3d 770, 771).Accordingly, we reverse the judgment of conviction, grant the defendant’s motion to vacate his plea, and remit the matter to the Supreme Court, Queens County, for further proceedings.BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Rivera, J.P.; Miller, Hinds-Radix and Maltese, JJ.MATTER of Jasmine Santiago, res, v. Josue Santiago, ap — (Docket No. O-10101-16/16A)Carol J. Lewisohn, Cedarhurst, NY, for appellant.Kellie M. Stabile, Westbury, NY, for respondent.Gail Jacobs, Great Neck, NY, attorney for the child.Appeal from an order of protection of the Family Court, Nassau County (Conrad D. Singer, J.), dated February 17, 2017. The order, after a fact-finding hearing, in effect, granted the petition alleging that the father violated a temporary order of protection of that court and, inter alia, directed the father to stay away from the mother and their child, except for visitation pursuant to court order or written agreement of the parties until and including February 16, 2019.ORDERED that the order of protection is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.The parties are the parents of a child born in 2008, and were in the midst of a divorce, when the mother filed a family offense petition against the father and obtained a temporary order of protection. Thereafter she filed a violation petition, alleging that the father violated the temporary order of protection when he sent certain text messages and email messages to her, and by going to the child’s after-school program to pick up the child for his visitation. When the parties appeared in Family Court on the petitions, the mother withdrew her family offense petition, and the matter proceeded to a fact-finding hearing on the violation petition. The Family Court found that the father violated the temporary order of protection, and in an order of protection dated February 17, 2017, directed the father, inter alia, to stay away from the mother and their child for two years, except for visitation pursuant to court order or written agreement of the parties. The father appeals.Contrary to the father’s contention, the Family Court was not required to dismiss the violation petition based on the mother’s withdrawal of the family offense petition (see Matter of Lisa T. v. King E.T., __NY3d__, 2017 NY Slip Op 8800 [2017]). However, the court erred in granting the two-year order of protection, as the competent evidence adduced at the fact-finding hearing failed to establish that the father wilfully violated the temporary order of protection (see Matter of Kakwani v. Kakwani, 124 AD3d 658, 660; Matter of Cavanaugh v. Madden, 298 AD2d 390, 392).RIVERA, J.P., MILLER, HINDS-RADIX and MALTESE, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Denise Ann Brady, res, v. Raymond A. White, ap — (Proceeding Nos. 1 and 2)MATTER of Raymond A. White, ap, v. Denise Ann Brady, res — (Proceeding No. 3) (Docket Nos. F-11681-06/12I, F-11681-06/12J, F-11681-06/13K)Appeal from an order of the Family Court, Nassau County (Edmund M. Dane, J.), dated March 23, 2016. The order, insofar as appealed from, denied the father’s objections to (1) an order of that court (Patricia Bannon, S.M.) dated January 12, 2016, which, after a hearing, determined that the father was in willful violation of a prior order directing payment of child support and maintenance and that he owed $57,746.63 in child support and maintenance arrears, (2) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, which, after a hearing, dismissed the father’s petition for a downward modification of his child support and maintenance obligations, and (3) an order of that court (Patricia Bannon, S.M.), also dated January 12, 2016, directing the entry of a money judgment in favor of the mother and against the father in the principal sum of $57,746.63 for child support and maintenance arrears.ORDERED that the order dated March 23, 2016, is modified, on the law and the facts, (1) by deleting the provision thereof denying the father’s objections to so much of the first order dated January 12, 2016, as determined that he owed $57,746.63 in child support and maintenance arrears and the third order dated January 12, 2016, and substituting therefor a provision granting those objections and vacating that portion of the first order dated January 12, 2016, and the third order dated January 12, 2016, and (2) by deleting the provision thereof denying the father’s objections to so much of the second order dated January 12, 2016, as dismissed those branches of his petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties’ stipulation of settlement, and substituting therefor a provision granting those objections to the extent of determining that his child support obligation is $331 per week as of August 14, 2012, and his maintenance obligation is $265 per week as of July 23, 2013, and $250 per week as of January 1, 2014, and vacating so much of the second order dated January 12, 2016, as dismissed those branches of the father’s petition which were for a downward modification of his child support and maintenance obligations in accordance with the parties’ stipulation of settlement; as so modified, the order dated March 23, 2016, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new determination of the amount of child support and maintenance arrears owed by the father in accordance herewith.The parties were married in 1998 and divorced in September 2005. Pursuant to their stipulation of settlement, which was incorporated but not merged into the judgment of divorce, the father agreed to pay $400 per week in child support for the parties’ five children. The stipulation of settlement further provided that the father’s child support obligation would be reduced to $354 per week upon the emancipation of the oldest child, and would be further reduced to amounts set forth therein upon the emancipation of each of the second, third, and fourth oldest children. Additionally, the father agreed to pay $300 per week in maintenance. Such payments were to continue until November 1, 2011, at which time his maintenance payment would be reduced to $265 per week, and would be further reduced to specified amounts pursuant to a schedule set forth therein until ceasing in 2022.In 2009, the father petitioned to modify his child support obligation in accordance with the stipulation of settlement on the ground that the oldest child was emancipated. In July 2009, the Family Court, upon consent, issued a modification order (hereinafter the 2009 modification order) directing the father to pay $354 per week in child support for the remaining four children and $300 per week in maintenance.In August 2012, the father petitioned, inter alia, for a downward modification of his child support obligation in accordance with the stipulation of settlement on the ground that the parties’ second oldest child was emancipated. He withdrew that petition and filed a second petition seeking that same relief, as well as a downward modification of his child support obligation based upon a change in circumstances and a downward modification of his maintenance obligation based upon “extreme hardship.” The Support Magistrate permitted the father to preserve the original filing date for issues that were raised in the first petition. Shortly thereafter, the father made an application for a downward modification of his maintenance obligation in accordance with the maintenance reduction provision in the stipulation of settlement. In December 2012, the mother filed a petition to enforce provisions of the 2009 modification order and a petition alleging that the father was in willful violation of the 2009 modification order.Following a hearing on the parties’ petitions, in an order dated January 12, 2016, the Support Magistrate determined that the father was in willful violation of the 2009 modification order directing payment of child support and maintenance, and that he currently owed $57,746.63 in child support and maintenance arrears. In a second order dated January 12, 2016, the Support Magistrate dismissed the father’s petition for a downward modification of his child support and maintenance obligations. In a third order dated January 12, 2016, the Support Magistrate directed the entry of a money judgment in favor of the mother and against the father in the principal sum of $57,746.63 for current child support and maintenance arrears. The father filed objections to the Support Magistrate’s orders, and the Family Court denied the objections in an order dated March 23, 2016. The father appeals from the order dated March 23, 2016.Contrary to the father’s contentions, the Support Magistrate properly dismissed that branch of his petition which was for a downward modification of his child support obligation based upon a change in circumstances. Since the parties’ stipulation of settlement was executed prior to the effective date of the 2010 amendments to Family Court Act §451 (see 2010, ch 182, §13),        in order to establish his entitlement to a downward modification of his child support obligation from that set forth in the parties’ stipulation of settlement, the father had the burden of establishing a substantial and unanticipated change in circumstances (see Matter of Straker v. Maynard-Straker, 133 AD3d 865, 866; Gribbin v. Gribbin, 126 AD3d 938, 939). In this regard, the father failed to credibly and clearly disclose his financial circumstances (see Matter of Abizadeh v. Abizadeh, 137 AD3d 900, 901; Matter of Rabasco v. Lamar, 106 AD3d 1095, 1096-1097), failed to present credible evidence that his symptoms or physical condition prevented him from working (see Matter of Mikhlin v. Giuffrida, 119 AD3d 692, 693; Matter of Gavin v. Worner, 112 AD3d 928, 929), and did not show that he had diligently sought re-employment commensurate with his qualifications and experience (see Matter of Ealy v. Levy-Hill, 140 AD3d 1164, 1165; Matter of Rubenstein v. Rubenstein, 114 AD3d 798, 799). Accordingly, the father failed to satisfy his burden of establishing a substantial and unanticipated change in circumstances so as to warrant a downward modification.The Support Magistrate also properly denied that branch of the father’s petition which was for a downward modification of his maintenance obligation based on extreme hardship. In order to obtain modification, either downward or upward, of the maintenance aspect of a stipulation of settlement that has been incorporated but not merged into a divorce judgment, a party must show extreme hardship (see Domestic Relations Law §236[B][9][b]; Cashin v. Cashin, 79 AD3d 963, 964; Malaga v. Malaga, 17 AD3d 642, 643). Given the father’s failure to provide any credible evidence as to his financial condition and his good-faith efforts to obtain re-employment commensurate with his earning capacity, he did not demonstrate that the maintenance obligation as set forth in the stipulation created an extreme hardship.The father also challenges the Support Magistrate’s finding that he willfully violated an order of support. ”‘A determination by a support magistrate that a person is in willful violation of a support order and recommending commitment has no force and effect until confirmed by a Judge of the Family Court’” (Matter of Flanagan v. Flanagan, 109 AD3d 470, 471, quoting Matter of Dakin v. Dakin, 75 AD3d 639, 639-640; see Family Ct Act §439[a]). ”Such a determination by a support magistrate does not constitute a final order to which a party may file written objections” (Matter of Dakin v. Dakin, 75 AD3d at 640; see Family Ct Act §439[e]; Matter of Flanagan v. Flanagan, 109 AD3d at 470). Here, the Support Magistrate determined that the father was in willful violation of the 2009 modification order and recommended a four-month period of incarceration. The father then improperly filed objections to the Support Magistrate’s nonfinal determination. In order to challenge the finding the he willfully violated the 2009 modification order, the father’s sole remedy, which he has not pursued, was to appeal from the order of commitment dated January 28, 2016, entered upon confirmation of the Support Magistrate’s determination (see Matter of Goulding v. Goulding, 156 AD3d 634; Matter of Addimando v. Huerta, 147 AD3d 750, 751; Matter of Ortiz-Schwoerer v. Schwoerer, 128 AD3d 828, 830). Accordingly, the issue of whether the father willfully violated the 2009 modification order is not properly before this Court on the appeal from the order dated March 23, 2016.However, the Support Magistrate erred in determining that the amount of the father’s child support and maintenance arrears was $57,746.63. In this regard, the record demonstrates that the total of $57,746.63 improperly included past arrears that were reflected in a prior money judgment against the father. Additionally, the Support Magistrate’s finding that the father owed the mother $4,133.74 as his pro rata share of add-on expenses for the children, which was included in the amount of support arrears, is unsupported by the record. The mother submitted a letter listing her incurred expenses in the amount of $5,426, but the receipts attached do not add up to $5,426. The amount claimed by the mother also included a $3,750 receipt for a college course taken by the parties’ second oldest child. However, the parties’ stipulation of settlement required the father to contribute to college expenses when the child is attending college “on a full daytime basis and matriculated in a course of study leading to an undergraduate degree at an accredited college or university.” The mother did not present evidence demonstrating that these conditions had been fulfilled with respect to the $3,750 of claimed expenses.Moreover, the Support Magistrate erred in dismissing those branches of the father’s petition which were for a downward modification of his child support and maintenance obligations in accordance with the provisions of the stipulation of settlement. ”A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation” (Matter of Miller v. Fitzpatrick, 147 AD3d 845, 846-847; see Ayers v. Ayers, 92 AD3d 623, 624; De Luca v. De Luca, 300 AD2d 342, 342). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v. Slatt, 64 NY2d 966, 967; Ayers v. Ayers, 92 AD3d at 624). ”A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract’s apparent meaning” (Cohen-Davidson v. Davidson, 291 AD2d 474, 475; see Matter of Scalabrini v. Scalabrini, 242 AD2d 725, 726).Here, the parties’ stipulation of settlement, which was incorporated but not merged into the judgment of divorce, expressly provides for reductions in child support based upon a child’s emancipation. The plain language of the stipulation of settlement expressly demonstrates that the parties agreed to allocated reductions in the father’s $400 per week child support obligation, the first of which was to $354 per week upon the emancipation of the oldest child, and further reductions upon the emancipation of each of the second, third, and fourth oldest children. The 2009 modification order modified the father’s support obligation and directed the father to pay $354 per week for the support of the four younger children in accordance with the stipulation of settlement, providing for a reduction from $400 to $354 based upon the oldest child’s emancipation. Contrary to the mother’s position, the 2009 modification order did not invalidate or modify the child support provisions of the stipulation of settlement (see Family Ct Act §466; Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366; Matter of Castaneda v. Castaneda, 132 AD3d 667, 669; Matter of Savini v. Burgaleta, 34 AD3d 686, 689). The father also presented sufficient evidence demonstrating that the parties’ second oldest child, who was 19 years old and employed full-time in August 2011, was emancipated as defined in the stipulation of settlement. Therefore, the record supports a finding that this child became emancipated in August 2011.Contrary to the father’s contentions, he is not entitled to a reduction in child support arrears that accrued prior to the filing date of his modification petition. In this regard, a court “‘ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation’” (Matter of Gardner v. Maddine, 112 AD3d 926, 927, quoting Grossman v. Composto-Longhi, 96 AD3d 1000, 1002; see Dembitzer v. Rindenow, 35 AD3d 791, 793). Although the father withdrew his first petition and then filed another petition in July 2013, the filing date for his first petition, August 14, 2012, applies, since the Support Magistrate permitted the father to preserve the original filing date for issues raised in the first petition, and the issue of the second oldest child’s emancipation was raised in the first petition.The parties’ stipulation of settlement also contains a maintenance reduction provision, which the Support Magistrate should have enforced (see Matter of Coppola v. Stroker, 235 AD2d 536, 537). However, contrary to the father’s contentions, he is not entitled to a retroactive reduction of his maintenance obligation prior to the date of his modification petition (see Theodoreu v. Theodoreu, 225 AD2d 686, 687). Instead of moving to modify his maintenance obligation in November 2011, the time the stipulation provided for the first decrease from $300 to $265, the father waited until July 23, 2013, when his counsel made an application to modify the father’s maintenance obligation pursuant to the stipulation of settlement from $300 per week to $265 per week. Additionally, the filing date for the father’s first petition, August 14, 2012, is not applicable. In this regard, his first petition sought a modification of his child support obligation based upon the second oldest child’s emancipation. As the father did not request a reduction in his maintenance obligation pursuant to the stipulation of settlement until July 23, 2013, that date is controlling.Due to the above noted errors, the father’s objections to (1) so much of the Support Magistrate’s orders as determined that the amount of his child support and maintenance arrears was $57,746.63 should have been granted, and (2) so much of the Support Magistrate’s order as dismissed those branches of his petition which were for a downward modification of his child support and maintenance obligations in accordance with the stipulation of settlement should have been granted to the extent that his child support obligation should be reduced from $354 to $331 per week as of August 14, 2012, and his maintenance obligation should be reduced from $300 to $265 per week as of July 23, 2013, and from $265 to $250 per week as of January 1, 2014. The Family Court, upon remittitur, must also make concomitant recalculations of the father’s child support and maintenance arrears.The father’s remaining contentions are without merit.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.MATTER of Malgorzata Garnys, ap, v. Kermit Stang Westergaard res — (Docket No. V-12376-16)Appeals from three orders of the Family Court, Queens County (Ashley Black, Ct. Atty. Ref.), all dated March 17, 2017. The first and second orders granted the respondents’ motion to dismiss a visitation petition. The third order dismissed the visitation petition.ORDERED that the orders are affirmed, with one bill of costs.In May 2015, the subject child’s biological mother died of cancer. The mother was not married when the child was born in 2005, and a second parent is not listed on the child’s birth certificate. Prior to her death, the mother executed a will providing that Kermit Stang Westergaard and Azadeh Houshyar Westgaard, the child’s maternal uncle and aunt (hereinafter together the respondents), be appointed the child’s guardians. In January 2016, the respondents filed a petition pursuant to Family Court Act article 6 to be appointed the guardians of the child. In June 2016, while the guardianship proceeding was pending, the petitioner commenced this proceeding pursuant to Family Court Act article 6 against the respondents, seeking visitation with the child. The respondents moved to dismiss the visitation petition, arguing that the petitioner lacked standing to seek visitation under Domestic Relations Law §70. The Family Court granted the respondents’ motion and dismissed the visitation petition. The petitioner appeals.The Legislature has clearly limited the right to seek visitation to noncustodial parents, grandparents, and siblings (see Domestic Relations Law §§70, 71, 72; see also Matter of McHarris v. Administration for Children’s Servs., 53 AD3d 660, 661). The petitioner argues that she should be considered a “parent” under Domestic Relations Law §70 because she moved in with the mother shortly before the child’s birth, she played a role in the daily upbringing of the child from his birth until the mother became ill, and she and the mother considered each other “life partners,” even though they never married or registered as domestic partners. Matter of Brooke S.B. v. Elizabeth A.C.C. (28 NY3d 1, 28) expanded the definition of “parent” beyond biological and adoptive parents to include a person who establishes, by clear and convincing evidence, that he or she agreed with the biological parent of the child to conceive and raise the child as co-parents. Although the petitioner concedes that she and the mother did not enter into a preconception agreement to raise the child together, she contends that she has standing to seek visitation because the mother consented to the creation of a parent-like relationship between her and the child after conception (see id. at 28).We agree with the Family Court that the petitioner failed to sustain her burden of establishing standing to seek visitation (see e.g. Matter of Emanuel S. v. Joseph E., 78 NY2d 178, 181; Matter of Bender v. Cendali, 107 AD3d 981, 982). The petitioner failed to demonstrate that the mother consented to anything more than the petitioner assisting her with child-rearing responsibilities. For example, the petitioner does not contend that the child referred to her as his mother, and the petitioner was not listed as a parent on school records or legal documents. Most importantly, after the mother was diagnosed with terminal cancer, she executed a will providing that the respondents be appointed the child’s guardians. Under the particular circumstances of this case, the court properly granted the respondents’ motion to dismiss the visitation petition based on lack of standing (see e.g. Matter of Moskowitz v. Moskowitz, 128 AD3d 1070, 1071; Matter of Lipton v. Lipton, 98 AD3d 621, 622).MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Bank of America, National Association, etc., ap, v. Cecil Wheatley def — (Index No. 6707/11)Appeal from an order of the Supreme Court, Queens County (Frederick D. R. Sampson, J.), entered April 12, 2016. The order denied the plaintiff’s motion, inter alia, for summary judgment on the complaint and for an order of reference.ORDERED that the order is affirmed, without costs or disbursements.On March 19, 2007, the defendant Cecil Wheatley (hereinafter the defendant) executed a note in the sum of $242,000 in favor of Bravo Credit. The note was secured by a mortgage on residential property located in Queens County. In January 2010, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Bravo Credit, assigned the mortgage to the plaintiff.In March 2011, the plaintiff commenced this action against, among others, the defendant. The defendant served an answer in which he asserted various affirmative defenses, including that the plaintiff lacked standing and that the plaintiff failed to comply with RPAPL 1304, and two counterclaims. The plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The defendant did not oppose the motion. By order entered April 12, 2016, the Supreme Court denied the motion. The plaintiff appeals, and we affirm.Contrary to the Supreme Court’s determination, the plaintiff established, prima facie, that it had standing to commence this action. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; U.S. Bank, N.A. v. Noble, 144 AD3d 786, 787; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753-754). ”Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; see U.S. Bank N.A. v. Saravanan,146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861, 862).Here, the plaintiff established, prima facie, its standing as the holder of the note by demonstrating that the note was in its possession at the time it commenced the action, as evidenced by its attachment of the note, which contained an endorsement in blank by Bravo Credit, the original lender, to the summons and complaint at the time the action was commenced (see U.S. Bank N.A. v. Sabloff, 153 AD3d 879; Deutsche Bank Natl. Trust Co. v. Carlin, 152 AD3d 491, 493; Wells Fargo Bank, N.A. v. Thomas, 150 AD3d 1312, 1313; U.S. Bank N.A. v. Saravanan, 146 AD3d at 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d at 862; JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643, 645).However, the Supreme Court properly determined that the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304. RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” RPAPL 1304(1) sets forth the requirements for the content of such notice and further provides that such notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). ”[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106; see CitiMortgage, Inc. v. Pappas, 147 AD3d 900, 901; Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909, 910).Contrary to the plaintiff’s contention, since the defendant raised the issue of compliance with RPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a prima facie showing of compliance with RPAPL 1304 (cf. Flagstar Bank, FSB v. Jambelli, 140 AD3d 829, 830; U.S. Bank N.A. v. Carey, 137 AD3d 894, 896). The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the business records exception” to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (CitiMortgage, Inc. v. Pappas, 147 AD3d at 901; see Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050). Moreover, the plaintiff failed to demonstrate, prima facie, that the notices included a list of five housing counseling agencies, as required by the statute (see RPAPL 1304[2]). Although Benight stated in her affidavit that the notices included such a list, the copies of the notices submitted merely included information about contacting a hotline that would provide “free personalized advice from housing counseling agencies certified by the U.S. Department of Housing and Urban Development.”Since the plaintiff failed to demonstrate its compliance with RPAPL 1304, the Supreme Court properly denied its motion for summary judgment (see Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1051; Citibank, N.A. v. Wood, 150 AD3d 813, 814; CitiMortgage, Inc. v. Pappas, 147 AD3d at 902).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Hall, Miller and Duffy, JJ.PEOPLE, res, v. Jimmy Smith, ap — Seymour W. James, Jr., New York, NY (Lorraine Maddalo of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated March 25, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The defendant appeals from his designation as a level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA).Contrary to the defendant’s contention, the Supreme Court properly assessed points under risk factor 9 of the risk assessment instrument (hereinafter the RAI) based on the defendant’s prior youthful offender adjudication (see People v. Simmons, 146 AD3d 912, 912-913; People v. Francis, 137 AD3d 91, 92, affd __NY3d__, 2018 NY Slip Op 01017 [2018]; People v. Rodriguez, 136 AD3d 880). The court also properly assessed 20 points under risk factor 7 of the RAI, as the People demonstrated by clear and convincing evidence that the defendant’s relationship with the complainant had been established or promoted for the primary purpose of victimization (see People v. Picariello, 145 AD3d 804, 805; People v. Dilillo, 143 AD3d 960, 960-961; People v. Uphael, 140 AD3d 1143, 1144).Finally, the Supreme Court properly denied the defendant’s application for a downward departure from his presumptive risk level designation, as he failed to identify any mitigating circumstances that are of a kind or to a degree not adequately taken into account by the SORA Guidelines (see SORA: Risk Assessment Guidelines and Commentary [2006]; People v. Gillotti, 23 NY3d 841, 861; People v. Robinson, 145 AD3d 805, 806; People v. Figueroa, 138 AD3d 708, 709).RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Daniel Zapata, ap — (Ind. No. 1485-15)Del Atwell, East Hampton, NY, for appellant.Timothy Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered July 27, 2016, convicting him of strangulation in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s valid waiver of his right to appeal bars his challenge to the County Court’s suppression rulings (see People v. Kemp, 94 NY2d 831, 833; People v. Kane, 151 AD3d 751). The appeal waiver does not foreclose review of the denial of the defendant’s motion to vacate his plea of guilty to the extent that the motion challenged the voluntariness of the plea (see People v. McErlean, 149 AD3d 872, 873). However, the defendant’s unsubstantiated and conclusory allegations are belied by the record and insufficient to warrant vacatur of the defendant’s plea of guilty (see People v. Ward, 140 AD3d 903, 904; People v. Bush, 132 AD3d 691, 692).The defendant’s waiver of his right to appeal does not bar consideration of whether he violated the conditions of his plea agreement, justifying an enhanced sentence (cf. People v. Perez, 140 AD3d 799, 800). The defendant did not submit to an interview by the Probation Department and, therefore, violated a condition of the plea agreement, justifying imposition of an enhanced sentence (see People v. Hicks, 98 NY2d 185, 188; People v. Foster, 153 AD3d 1429; People v. Guzman-Hernandez, 135 AD3d 957).The County Court granted the defendant’s request to withdraw his waiver of the right to appeal with respect to the excessiveness of the enhanced sentence. However, the enhanced sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.MATTER of Asher M. (Anonymous). Administration for Childrens Services, res; Orton M. (Anonymous), ap — (Proceeding No. 1)MATTER of Amariah M. (Anonymous). Administration for Childrens Services, res; Orton M. (Anonymous), ap — (Proceeding No. 2)MATTER of Gabriel M. (Anonymous). Administration for Childrens Services, res; Orton M. (Anonymous), ap — (Proceeding No. 3) (Docket Nos. N-9972-16, N-9973-16, N-9974-16)Appeal from an order of fact-finding and disposition of the Family Court, Queens County (Joan L. Piccirillo, J.), dated January 25, 2017. The order, insofar as appealed from, after a fact-finding hearing, found that the father neglected the subject children.ORDERED the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.The petitioner commenced these related proceedings pursuant to Family Court Act article 10 alleging that the father neglected the subject children. After a fact-finding hearing, the Family Court found that a preponderance of the evidence established that the father neglected the children by committing acts of domestic violence against the mother in their presence, which created an imminent danger of impairing the children’s physical, mental, or emotional condition. The father appeals.To establish neglect of a child, the petitioner must demonstrate, by a preponderance of the evidence (see Family Ct Act §1046[b][i]), (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Family Ct Act §1012[f][i][B]; Nicholson v. Scoppetta, 3 NY3d 357, 368).Here, the petitioner demonstrated by a preponderance of the evidence that the father neglected the children by engaging in acts of domestic violence in their presence that impaired, or created an imminent danger of impairing, their physical, mental, or emotional condition (see Matter of Marina Y. [Gamal Y.], 156 AD3d 894; Matter of Brilliance B. [Sydell B.], 133 AD3d 652, 653; Matter of Kaleb B. [Harold S.], 119 AD3d 780, 781; Matter of Eugene S. [Priscilla E.], 114 AD3d 691, 691). The out-of-court statements of the children corroborated each other and were corroborated by the mother’s testimony (see Matter of Nicole V., 71 NY2d 112, 124; Matter of Dylan R. [Jeremy T.], 137 AD3d 1492, 1494; Matter of Tristan R., 63 AD3d 1075, 1077; cf. Matter of Jeshaun R. [Ean R.], 85 AD3d 798, 799). Moreover, the Family Court’s credibility determinations are supported by the record (see Matter of D.M. [Ali T.], 138 AD3d 856, 857; Matter of Hayden C. [Tafari C.], 130 AD3d 924, 926).MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Chambers, J.P.; Austin, Sgroi and Maltese, JJ.PEOPLE, etc., res, v. Heraclio Santiago, ap — (Ind. No. 1165/09)Heraclio Santiago, Auburn, NY, appellant pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.Paul Skip Laisure, New York, NY (Melissa S. Horlick of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated March 19, 2014 (People v. Santiago, 115 AD3d 885), affirming a judgment of the Supreme Court, Kings County, rendered March 25, 2010.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).CHAMBERS, J.P., AUSTIN, SGROI and MALTESE, JJ., concur.By Dillon, J.P.; Balkin, Cohen and Maltese, JJ.PEOPLE, etc., res, v. David Bernard, ap — (Ind. No. 0002/07)David Bernard, Comstock, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.Paul Skip Laisure, New York, NY (Steven R. Bernhard of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 21, 2012 (People v. Bernard, 100 AD3d 916), affirming a judgment of the Supreme Court, Queens County, rendered November 17, 2009.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., BALKIN, COHEN and MALTESE, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.MATTER of Guy M. J. (Anonymous), ap, v. Abiola N. S. (Anonymous), res — (Docket No. P-26828-15)Appeal from an amended order of filiation of the Family Court, Kings County (Maria Arias, J.), dated February 6, 2017. The order adjudicated the appellant to be the father of the subject child.ORDERED that the notice of appeal from the amended order of filiation is deemed to be an application for leave to appeal from that order, and leave to appeal is granted (see Family Ct Act §1112 [a]); and it is further,ORDERED that the amended order of filiation is affirmed, without costs or disbursements.After the birth in 2005 of the child who is the subject of this paternity proceeding, the appellant and the respondent mother believed the appellant to be the child’s biological father. The appellant signed a document indicating that he was the child’s father one year after the child was born and, until the child was seven years old, financially supported the child and the mother, visited the child, sent the child gifts, and spoke with the child on the telephone. Additionally, the parties had a private DNA test conducted in 2009 which indicated that the appellant was the child’s father. However, in 2013, the appellant terminated his contact with and support of the child, and commenced this paternity proceeding, requesting that a genetic marker test be performed. Following a hearing, the Family Court, concluding that the appellant was equitably estopped from denying paternity of the child, declined to direct genetic marker testing and adjudicated the appellant to be the father of the child.“Before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest” (Matter of Commissioner of Social Servs. v. Julio J., 20 NY3d 995, 997; see Matter of Shondel J. v. Mark D., 7 NY3d 320). Here, as the Family Court properly concluded, the evidence demonstrated the existence of a long-standing “recognized and operative parent-child relationship” between the child and the appellant, such that it is in the best interests of the child to apply the doctrine of equitable estoppel (Matter of Shondel J. v. Mark D., 7 NY3d at 327 [internal quotation marks omitted]; see Matter of Commissioner of Social Servs. v. Julio J., 20 NY3d at 997; Matter of Westchester County Dept. of Social Servs. v. Arnoldo B., 130 AD3d 743, 744; Matter of Shawn H. v. Kimberly F., 115 AD3d 744, 745).The appellant’s remaining contention is without merit.Accordingly, the Family Court properly adjudicated the appellant to be the father of the child.ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, res, v. Brian T. McClane, ap — Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated February 22, 2017, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.Contrary to the defendant’s contention, the County Court properly designated him a level three sex offender and correctly denied his request for a downward departure (see Correction Law §168-n[3]; People v. Gillotti, 23 NY3d 841, 861; People v. Johnson, 11 NY3d 416; People v. Wyatt, 89 AD3d 112, 128).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.John Berger, ap, v. Sol S. Stolzenberg, etc., et al., def, Tatyana Berman, res — (Index No. 1866/14)Lutfy & Santora, Staten Island, NY (James L. Lutfy of counsel), for appellant.Kutner Friedrich, LLP, New York, NY (Michael Kutner of counsel), for respondent.In an action to recover damages for dental malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated May 13, 2016, which granted the motion of the defendant Tatyana Berman pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that it is barred by the statute of limitations.ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Tatyana Berman pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that it is barred by the statute of limitations is denied.The plaintiff was a patient at the defendant Toothsavers Dental Services, P.C. (hereinafter Toothsavers), from 2004-2013. The defendant Tatyana Berman was employed by Toothsavers and treated the plaintiff during this time period. The plaintiff commenced this action against the defendants on February 17, 2015, alleging dental malpractice and lack of informed consent. After issue was joined, Berman moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that it is barred by the statute of limitations, contending that the last date on which she treated the plaintiff was August 15, 2009. The plaintiff opposed the motion, contending that the motion was premature. The Supreme Court granted the motion, and we reverse.A defendant who moves to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Murray v. Charap, 150 AD3d 752, 753; Wei Wei v. Westside Women’s Med. Pavilion, P.C., 115 AD3d 662, 663; Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 781; Texeria v. BAB Nuclear Radiology, P.C., 43 AD3d 403, 405). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period (see Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d at 781; Baptiste v. Harding-Marin, 88 AD3d 752, 753; Williams v. New York City Health & Hosps. Corp., 84 AD3d 1358, 1359).Here, Berman failed to establish, prima facie, that the time in which to sue had expired, as she failed to establish the last time she had treated the plaintiff. In support of her motion, Berman submitted a terse affidavit and what she purported to be the plaintiff’s dental records. In her affidavit, Berman did not state any independent recollection as to when she treated the plaintiff, but based her averments solely on her review of the submitted dental records. Those dental records were not certified, and in large part, were not legible. Further, while dates of treatment are noted, it is impossible to distinguish which of the many doctors affiliated with Toothsavers treated the plaintiff on any given day of treatment, including those dates of treatment that fall within the applicable 2 -year limitations period (see CPLR 214-a).Accordingly, the Supreme Court should have denied Berman’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.PEOPLE, etc., res, v. Isaias C. Vargas, ap — (Ind. No. 2704-15)Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered April 15, 2016, convicting him of driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192.2, and aggravated driving while intoxicated, as a felony, in violation of Vehicle and Traffic Law §1192.2(a), upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant knowingly, voluntarily, and intelligently waived his right to appeal. Therefore, he cannot challenge his sentence upon the ground raised in his brief (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337; People v. Lopez, 6 NY3d 248; People v. Char, 153 AD3d 724).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Geoffrey D. (Anonymous). Administration for Childrens Services, res; Everton D. (Anonymous), ap — (Proceeding No. 1)MATTER of Kyle D. (Anonymous). Administration for Childrens Services, res; Everton D. (Anonymous), ap — (Proceeding No. 2) (Docket Nos. N-18607-14, N-18608-14)Appeals from an order of protection of the Family Court, Queens County (Mary R. O’Donoghue, J.), dated December 19, 2016, and an order of disposition of that court dated December 22, 2016. The order of protection directed the father, inter alia, to stay away from the subject children, except for supervised visitation, until and including March 3, 2017. The order of disposition, upon a finding that the father neglected the child Kyle D., made after a fact-finding hearing, and after a dispositional hearing, inter alia, released the child Kyle D. to the custody of the mother and limited the father’s contact with the subject children to supervised visitation.ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the finding of neglect is vacated, the neglect petition in proceeding No. 2, pertaining to the child Kyle D., is denied, and that proceeding is dismissed; and it is further,ORDERED that the order of protection is reversed, on the law, without costs or disbursements.The Administration for Children’s Services (hereinafter ACS) commenced these related neglect proceedings against the father, alleging that he suffered from a mental illness which impaired his ability to care for the subject children. After a fact-finding hearing, the Family Court found that ACS established that the father neglected the child Kyle D. by creating a potential of harm to Kyle as a result of the father’s ongoing mental illness. After a dispositional hearing, the Family Court, inter alia, released Kyle to the custody of his mother and limited the father’s contact with the children to supervised visitation. In addition, the court issued an order of protection directing the father, inter alia, to stay away from the children, except for supervised visitation, until and including March 3, 2017. The father appeals.Although the order of protection expired by its own terms, the appeal from that order has not been rendered academic (see Matter of Veronica P. v. Radcliff A., 24 NY3d 668, 673).In a neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected (see Family Ct Act §1046[b][i]; Matter of Justin L. [Sandra L.], 144 AD3d 915). A neglected child is a child less than 18 years old “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent… to exercise a minimum degree of care… in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (Family Ct Act §1012[f][i][B]).While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect (see Matter of Nialani T. [Elizabeth B.], 125 AD3d 672, 674; Matter of Alexis S.G. [Shanese B.], 107 AD3d 799; Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640). Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent’s condition, and the actual or potential harm to the [child]” (Matter of Joseph A. [Fausat O.], 91 AD3d at 640).In this case, we agree with the father and the attorney for the children that ACS failed to establish that there was a causal connection between the father’s mental illness and any actual or potential harm to Kyle (see Matter of Nialani T. [Elizabeth B.], 125 AD3d at 674). The evidence did not establish that the father’s mental illness, for which he was receiving treatment, precluded him from being able to care for Kyle, or placed Kyle’s physical, mental, or emotional condition in imminent danger of becoming impaired (see Matter of Justin L. [Sandra L.], 144 AD3d at 916; Matter of Joseph A. [Fausat O.], 91 AD3d at 640).Accordingly, we vacate the finding of neglect, and the order of disposition and the order of protection, which were predicated upon that finding, must be reversed.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.PEOPLE, etc., res, v. Jahvonne Chambers, ap — (Ind. No. 14-00508)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 24, 2015, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention relating to his waiver of inquiry pursuant to People v. Outley (80 NY2d 702) is unpreserved for appellate review (see CPL 470.05[2]; see also People v. Humbach, 153 AD3d 637, 637-638; cf. People v. Williams, 27 NY3d 212; People v. Murray, 15 NY3d 725, 726-727). We decline to review the defendant’s contention in the exercise of our interest of justice jurisdiction (see People v. Humbach, 153 AD3d at 638).The defendant’s challenge to the final order of protection entered against him is unpreserved for appellate review (see People v. Nieves, 2 NY3d 310, 316-318; People v. Kumar, 127 AD3d 882, 883). We decline to review the defendant’s contention in the exercise of our interest of justice jurisdiction (see People v. Kennedy, 151 AD3d 1079, 1079-1080; People v. Bernardini, 142 AD3d 671, 672; People v. Hunter, 135 AD3d 958, 959; People v. Kumar, 127 AD3d at 883).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.PEOPLE, etc., ex rel. Ernest Leneau, pet, v. Warden of Otis Bantum Correction Facility, res — Writ of habeas corpus in the nature of an application for the release of the petitioner pursuant to CPL 30.30(2)(a) upon Kings County Indictment No. 112/16, and application by the petitioner for leave to prosecute the proceeding as a poor person.ORDERED that the application for leave to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; and it is further,ADJUDGED that the writ is dismissed, without costs or disbursements.The instant petition is a successive application for habeas corpus relief, which is neither warranted nor supported by any changed circumstances. Accordingly, the writ of habeas corpus must be dismissed (see CPLR 7003[b]; Matter of Nonhuman Rights Project, Inc. v. Lavery, 152 AD3d 73, 75-76).BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Mastro, J.P.; Balkin, Cohen and Duffy, JJ.MATTER of Josh Brown, pet, v. Barry Kron, etc., res — Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit Barry Kron, an Acting Justice of the Supreme Court, Queens County, from presiding over any further proceedings in a criminal action against the petitioner under Queens County Indictment No. 2349/04, and application by the petitioner for poor person relief.ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352).The petitioner has failed to establish a clear legal right to the relief sought.MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.By Mastro, J.P.; Dillon, Hall and Hinds-Radix, JJ.PEOPLE, etc., res, v. Otis Bryant, ap — (Ind. No. 3235/06)Otis Bryant, Wallkill, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle M. O’Boyle of counsel), for respondent.Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated March 22, 2011 (People v. Bryant, 82 AD3d 1114), affirming a judgment of the Supreme Court, Queens County, rendered November 10, 2008.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., DILLON, HALL and HINDS-RADIX, JJ., concur.By Rivera, J.P.; Roman, Lasalle and Barros, JJ.MATTER of David James Coon, res, v. Audrey Kathleen Sanabria, ap — (Docket No. V-04170-15/15A)Eiges & Orgel PLLC, New York, NY (Elizabeth C. Garvey of counsel), for appellant.David J. Coon, suing herein as David James Coon, Portsmouth, Virginia, respondent pro se.Francine Scotto, Staten Island, NY, attorney for the child.Appeals from two orders of the Family Court, Richmond County (Alison M. Hamanjian, J.), both dated December 2, 2016. The first order, insofar as appealed from, after a hearing, granted the father’s petition to modify a prior order of the Family Court, Kings County (Bernard J. Graham, J.), dated February 23, 2010, so as to award him physical custody of the parties’ daughter. The second order denied the mother’s motion for an award of an attorney’s fee.ORDERED that the first order dated December 2, 2016, is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the second order dated December 2, 2016, is affirmed, without costs or disbursements.The parties are the parents of a daughter born in 2003. The mother lives in Staten Island with the daughter’s stepfather and stepsister. The father lives in Portsmouth, Virginia, with the daughter’s stepmother and stepbrother. The mother has had physical custody of the daughter and has been her primary caretaker since birth. In a petition dated September 15, 2015, the father sought to modify an order of the Family Court, Kings County, dated February 23, 2010, so as to award him physical custody of the daughter with visitation to the mother. After a hearing and two in camera interviews with the daughter, the Family Court granted the father’s petition in an order dated December 2, 2016. In a second order dated December 2, 2016, the court denied the mother’s motion for an award of an attorney’s fee.“A party seeking the modification of an existing court-sanctioned child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination to the extent that modification is necessary to insure the child’s best interests” (Matter of Klotz v. O’Connor, 124 AD3d 662, 662-663). Here, the father demonstrated such a change in circumstances based on the daughter’s expressed desire to live with him, and the mother’s restrictions on his contact and visitation with the daughter (see Matter of DeVita v. DeVita, 143 AD3d 981, 982; Matter of Dorsa v. Dorsa, 90 AD3d 1046, 1047).Furthermore, there is a sound and substantial basis in the record for the Family Court’s determination that granting the father’s petition and awarding him physical custody of the daughter is in her best interests, based on, inter alia, the daughter’s preference and the evidence that the father is more able and willing to assure meaningful contact between the daughter and the mother, and to foster a healthier relationship between the daughter and the mother, than the mother fostered between the daughter and the father (see Cook v. Cook, 142 AD3d 530, 534; Matter of Samuel S. v. Dayawathie R., 63 AD3d 746, 747).The Family Court properly denied the mother’s motion for an award of an attorney’s fee (see Family Ct Act §651; Domestic Relations Law §237[b]).RIVERA, J.P., ROMAN, LASALLE and BARROS, JJ., concur.By Leventhal, J.P.; Cohen, Miller and Maltese, JJ.PEOPLE, etc., ex rel. Nora Carroll, on behalf of Jordin Exum, pet, v. Cynthia Brann, etc., res — Writ of habeas corpus in the nature of an application for bail reduction upon Kings County Indictment No. 7935/17 to release Jordin Exum on his own recognizance or to set reasonable bail.ADJUDGED that the writ is dismissed, without costs or disbursements.The determination of the Supreme Court, Kings County, did not violate “constitutional or statutory standards” (People ex rel. Klein v. Kruger, 25 NY2d 497, 499; see People ex rel. Rosenthal v. Wolfson, 48 NY2d 230).LEVENTHAL, J.P., COHEN, MILLER and MALTESE, JJ., concur.

Order on Applicationreleased on:February 20, 2018In the Matter of Applications for Extensions of Time — Parties in the following causes have filed applications pursuant to 22 NYCRR 670.8(d)(2) to extend the time to perfect or to serve and file a brief. Upon the papers filed in support of the applications, it is ORDERED that the applications are granted and the following parties in the following causes are granted the specified extensions of time:1081 Stanley Ave, LLC v. Bank of New York Mellon Trust Company, N.A., 2017-06386, 1081 Stanley Ave, LLC, March 15, 2018¹Aurora Loan Services, LLC v. Simon, 2017-06941, Steve Simon, March 15, 2018²Bank of New York Mellon v. Alli, 2017-04213, Akbar Alli, March 13, 2018Brown v. Jalloh, 2017-09517, Nakia Brown, March 1, 2018Carpenzano v. Carpenzano, 2017-09505, Michael J. Carpenzano, April 10, 2018³Cenlar, FSB v. Shenker, 2017-06454 +1, Cenlar, FSB, March 12, 2018Cohen v. Woodlands Condominium Association, 2017-05490, Carla Cohen, March 9, 2018Deutsche Bank National Trust Company v. Matzen, 2017-09536, Deutsche Bank National Trust Company, April 16, 2018Devito v. North Bellmore Union Free School District, 2017-10457, North Bellmore Union Free School District, February 22, 2018HSBC Bank USA National Association v. Tigani, 2017-07983, HSBC Bank USA National Association, April 16, 2018⁴HSBC Bank USA, N.A. v. Lakas, 2017-09813, Maria Lakas, March 21, 2018Hanover v. Palazzolo, 2017-09876, Frank Palazzolo, Brian Palazzolo, F&M Funding, LLC, April 23, 2018Marino v. Bryant, 2017-09139, Umberto Marino, April 23, 2018Matter of DeMairo v. State of New York, 2017-08118, Carol Ann DeMairo, March 19, 2018⁵Matter of Hayes v. Nigro, 2017-07418, Daniel A. Nigro, City of New York, March 2, 2018⁶Matter of K. (Anonnymous), 2017-07019, Letitia S., March 15, 2018⁷Matter of Llama v. Gorriti, 2017-08964, Ernest X. Gorriti, April 2, 2018^{8, 9}Mello v. Long Island Vitreo-Retinal Consultant, P.C., 2017-05862, Bruce Mello, March 2, 2018Moreequity, Inc. v. Centennial Insurance Company, 2017-08499, 158-11 96^th          Street, LLC, March 13, 2018Morgan Stanley Mortgage Capital Holdings, LLC, v. Hunter, 2017-08355, Franshara Hunter, March 19, 2018Mutual Aid Association of the Paid Fire Department of the City of Yonkers, New York, Inc. v. City of Yonkers, 2017-07164, Mutual Aid Association of the Paid Fire Department of The City of Yonkers, March 7, 2018People v. Gerardi, Peter, 2016-01060, People of State of New York, March 16, 2018People v. Hassan, Bilal, 2016-10215, Bilal Hassan, March 9, 2018¹⁰People v. Maffei, Robert, 2010-10184, People of State of New York, March 20, 2018People v. Perez, Luis, 2015-11102, People of State of New York, March 2, 2018People v. Wright, Daquan, 2015-11993, People of State of New York, April 2, 2018Pires v. New York City Housing Authority, 2017-09677, Sharon PiresRobert Pires, April 26, 2018¹¹Pyun v. Frimpong, 2017-10468, Charles J. Carey, Jr.Barbara A. Carey, April 2, 2018Rocco G.C. Corp. v. Bridge View Tower, LLC, 2017-05262, Rocco G.C. Corp, Michael Tam, March 7, 2018Santos v. Orozco, 2017-07396, Sergio Orozco, March 16, 2018Silva v. City of New York, 2017-09105, 167-75 Havemeyer Street Housing Development Fund Corporation, April 23, 2018Slack v. Stanton Surf Club, 2017-08196, Tao Group, April 17, 2018¹²Soller v. Dahan, 2017-09199, Lindon F. Beraun Soller, April 12, 2018¹³Spodek v. Neiss, 2017-04759 +4, Andrew H. Spodek, March 28, 2018Stonewall Contracting Corp. v. Long Island Railroad Company, 2017-05682, Stonewall Contracting Corp., March 5, 2018U.S. Bank National Association v. Dickenson, 2017-01722, U.S. Bank National Association, March 30, 2018Weiss v. Durso, 2017-07359, Joan A. Durso, Michael D. Durso, March 9, 2018¹⁴Wells Fargo v. McKenzie, 2017-05353, Adam Plotch, March 12, 2018¹⁵Xiaoen Xie v. New York Fast General Contracting Corp., 2017-01901, Xiaoen Xie, Long Ying Chen, April 23, 2018¹⁶