Appellate TermSecond DepartmentSecond, Eleventhand ThirteenthJudical DistrictsBy: Weston, J.P., Pesce, Solomon, JJ.Gregory J. Grinberg, appellant pro se.Law Office of Steven G. Fauth, LLC (Scott S. Levinson, Esq.), for respondent.2013-2429 K C. GRINBERG v. EISSENBERG — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Eileen N. Nadelson, J.), entered March 6, 2013. The judgment, after a nonjury trial, dismissed the complaint.ORDERED that the judgment is modified by deleting the provision thereof dismissing so much of the complaint as was asserted against defendant 1802 Ocean Parkway Owner’s Inc.; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for the entry of an appropriate amended judgment awarding plaintiff the principal sum of $4,650 plus interest and costs as against that defendant.Plaintiff brought this action against defendants 1802 Ocean Parkway Owners, Inc. (1802), Newport Management Company, LLC (Newport) and Mordechai Eissenberg, an employee of Newport, for breach of contract or warranty and to recover for property damage caused by a water leak from the apartment above his. At a nonjury trial, the proof revealed that plaintiff is a tenant in a cooperative apartment in a building owned by 1802 and managed by Newport. Plaintiff testified that, in 2005, he had discovered a leak in his ceiling that was causing damage to his apartment. It was determined that the leak had originated from the toilet in the apartment above his. In 2008, the building’s management repaired damage caused by that leak, but, plaintiff contended, the damage had not been repaired properly and, thus, he had to spend an additional $4,650 to fix it. Defendants maintained, among other things, that they were not required to repair plaintiff’s apartment, that any repairs that had been made had been done gratuitously and that plaintiff had failed to prove any negligence on their part. Following the trial, the Civil Court dismissed the complaint.On appeal, plaintiff argues that the court erred in dismissing the complaint because he had established his right to recover as a matter of law based on defendants’ breach of Multiple Dwelling Law §78, the proprietary lease, the warranty of habitability, and an oral contract between himself and defendant Eissenberg, personally and as a representative of 1802 and Newport.Pursuant to Multiple Dwelling Law §78, the owner of a multiple dwelling owes a nondelegable “duty to persons on its premises to maintain them in a reasonably safe condition” and is liable to anyone injured “even though the responsibility for maintenance has been transferred to another” (see Mas v. Two Bridges Assoc., 75 NY2d 680, 687-688 [1990]). However, Multiple Dwelling Law §78 does not entitle a tenant to make repairs “which he claims the statute requires the lessor to do, and to [sue] for the value of such work on the theory of breach of contract…. Even if the statutory duty could be said to have been imposed for the benefit of one in [tenant's] position, the tenant might waive same” (Emigrant Indus. Sav. Bank v. One Hundred Eight W. Forty-Ninth St. Corp., 255 App Div 570, 576 [1939], affd 280 NY 791 [1939]; see Davar Holdings Inc. v. Cohen, 255 App Div 445 [1938], affd 280 NY 828 [1939]; Garcia v. Freeland Realty, Inc., 63 Misc 2d 937 [Civ Ct, NY County 1970]). Here, the proprietary lease expressly provided that it is the lessee’s responsibility to keep the interior walls, floors and ceilings of the apartment in good repair.The implied warranty of habitability cannot similarly be waived or modified by contract (see Real Property Law §235-b [2]), and, thus, a tenant may be entitled to be reimbursed by the landlord for repairs the tenant makes to the premises, where the premises’ condition leaves it dangerous, hazardous or detrimental to his life, health or safety in violation of the statutory warranty of habitability, notwithstanding a provision in the lease purporting to shift the responsibility of repairs to the tenant (see id.; Spatz v. Axelrod Mgt. Co., 165 Misc 2d 759 [Yonkers City Ct, 1995]). Here, in view of defendant 1802′s failure to properly repair the water damage and mold in plaintiff’s apartment resulting from the leak, defendant 1802 breached the warranty of habitability. Consequently, plaintiff is entitled to recover from defendant 1802 the expenses he incurred in repairing the conditions (see Missionary Sisters of the Sacred Heart v. Meer, 131 AD2d 393 [1987]; Spatz v. Axelrod Mgt. Co., 165 Misc 2d 759).We have examined plaintiff’s remaining contentions and find them to be without merit.Accordingly, the judgment is modified by deleting the provision thereof dismissing so much of the complaint as was asserted against defendant 1802 Ocean Parkway Owner’s Inc.; as so modified, the judgment is affirmed and the matter is remitted to the Civil Court for the entry of an appropriate amended judgment awarding plaintiff the principal sum of $4,650 plus interest and costs as against that defendant.PESCE and SOLOMON, JJ., concur.WESTON, J.P., dissents and votes to affirm the judgment in the following memorandum:I disagree with the majority’s finding of a breach of the implied warranty of habitability. In my opinion, plaintiff never asserted a claim for breach of the implied warranty of habitability either in his complaint or at oral argument, but rather confined his challenge to the quality of the repairs.1 Even if such a breach were alleged, I would find that plaintiff failed to show how his health or well being had been affected by the allegedly poor repairs.Pursuant to Real Property Law §235-b, implied in every residential lease is a warranty of habitability, which includes three covenants:“(1) that the premises are ‘fit for human habitation’, (2) that the premises are fit for ‘the uses reasonably intended by the parties’, and (3) that the occupants will not be subjected to conditions that are ‘dangerous, hazardous or detrimental to their life, health or safety’ ” (Solow v. Wellner, 86 NY2d 582, 587-588 [1995], quoting Real Property Law §235-b).The implied warranty of habitability “protects only against conditions that materially affect the health and safety of tenants or deficiencies that ‘in the eyes of a reasonable person * * * deprive the tenant of those essential functions which a residence is expected to provide” (Sollow v. Wellner, 86 NY2d 582, 588 [1995] quoting Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 327 [1979] [emphasis in original]).Although plaintiff, on appeal, contends that the Civil Court failed to consider a claim for breach of implied warranty of habitability, there was no need for the court do so, since plaintiff did not specifically assert such a claim. Instead, plaintiff objected only to the manner in which the repairs had been done and sought the cost of remedying the allegedly shoddy repairs. To that end, plaintiff sought to introduce the testimony of a contractor who had inspected the premises two years after the repairs had been done. Although the contractor noted the presence of mold, neither he nor plaintiff ever maintained that the mold in the bathroom rendered the apartment dangerous, hazardous or otherwise uninhabitable (see Decrescenzo v. Kalba, 8 Misc 3d 129[A], 2005 NY Slip Op 51031 [App Term, 2d Dept, 9th & 10th Jud Dists 2005] ["defendants, who resided on the first floor, have failed to show how their health or well being were affected by the mold in the basement"]; see generally Martin v. 159 W. 80 St. Corp., 3 AD3d 439 [2004] [air quality tests revealed high levels of highly toxic fungus due to mold from a water leak]). Absent proof of any threats to plaintiff’s health or safety, or that the leak or resulting repairs somehow rendered the apartment uninhabitable or unfit for use, there was no evidence from which the trial court could reasonably find a breach of implied warranty of habitability (see Sollow v. Wellner, 86 NY2d at 589; Park W. Mgt. Corp. v. Mitchell, 47 NY2d at 328 [1979]; Grammar v. Turits, 271 AD2d 644 [2000]).Nor was there any other evidence to support an award damages on this record. Plaintiff’s failure to commence this action until five years after the alleged water damage and two years after the repairs had been completed casts serious doubt on the credibility of his claims. Indeed, other than his own self-serving testimony and his contractor’s confusing and unreliable testimony, plaintiff proffered nothing to justify awarding him $4,650 to “fix” the repairs. Plaintiff’s contractor never testified as an expert, he could not comment on what kind of work was done at the time of the repairs, and any estimates presented included areas that were beyond the challenged repairs. Clearly, the trial court, as the finder of fact, considered and flatly rejected both plaintiff’s and his contractor’s testimony. I see no reason to disturb the trial court’s assessment.Accordingly, I decline to modify the Civil Court’s decision and vote to affirm the judgment.1. Plaintiff’s summons with endorsed complaint alleges, in relevant part, “Breach of Contract or Warranty for $25,000.”December 29, 2017By: Pesce, P.J., Aliotta, Solomon, JJ.The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-867 Q C. TRIMED MED. SUPPLY, INC. v. GEICO INS. CO. — Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated June 5, 2013, deemed from a judgment of that court entered June 25, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $522.80.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. At the trial, the Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant’s notice of appeal from the decision dated June 5, 2013 is deemed a notice of appeal from the judgment entered June 25, 2013 (see CPLR 5512 [a]).Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of plaintiff’s claim form was based, should have been permitted to testify as to her opinion as to the lack of medical necessity of the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the original peer review report (see Promed Orthocare Supply, Inc. v. Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v. Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 29, 2017By: Elliot, J.P., Pesce, Solomon, JJ.Foley, Smit, O’Boyle & Weisman (Aaron E. Meyer, Esq.), for appellant.Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.2015-1092 K C. FOREST PARK ACUPUNCTURE, P.C. v. NYCT MABSTOA — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 20, 2015. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon, in effect, denying plaintiff’s motion for summary judgment, made, in effect, a CPLR 3212 (g) finding that plaintiff “had established the proper submission of bills to defendant (with a reasonable justification for the late submission).”ORDERED that the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in plaintiff’s favor is vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied defendant’s cross motion and stated that plaintiff’s motion was “granted to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission),” and that defendant had raised a triable issue of fact with respect to the nonpayment of the claims. Defendant appeals, arguing that so much of the order as “granted” plaintiff’s motion “to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission)” should be vacated and that defendant’s cross motion should be granted.While the Civil Court purported to “grant” plaintiff’s motion for summary judgment “to the extent that plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission),” this was not an award of partial summary judgment as contemplated by CPLR 3212 (e). Rather, the Civil Court, in effect, made a finding for all purposes in the action, which CPLR 3212 (g) permits it to do upon the denial of a motion for summary judgment. Defendant correctly argues that plaintiff has not demonstrated that it should be found to be established for all purposes in the action that the bills at issue were timely and properly submitted to defendant. Consequently, the Civil Court’s CPLR 3212 (g) finding that “plaintiff has established the proper submission of bills to defendant (with a reasonable justification for the late submission)” is vacated. However, defendant’s cross motion is based upon the proposition that plaintiff did not submit the claim forms in question to defendant, and that proposition is not established, as a matter of law, by the record before us either (see Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 230 [2011]). Thus, contrary to defendant’s contention, defendant is not entitled to summary judgment dismissing the complaint.Accordingly, the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in plaintiff’s favor is vacated.ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.December 29, 2017By: Weston, J.P., Pesce, Solomon, JJ.New York City Transit Law Department-Torts (Anna J. Ervolina, Esq.), for appellant.Sim & Record, LLP (Sang J. Sim, Esq.), for respondent.2016-418 K C. WILLIAMS v. THE NEW YORK CITY TR. AUTH. — Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 23, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, without costs.Plaintiff commenced this personal injury action, alleging that, at approximately 11:45 a.m. on June 13, 2011, as he was descending a staircase at the DeKalb Avenue subway station, in Brooklyn, New York, he slipped on an “oily, sticky and greasy substance and debris” that had accumulated on the third or fourth step of the staircase. Defendant moved for summary judgment dismissing the complaint. By order entered December 23, 2015, the Civil Court denied the motion, finding that defendant had failed to establish a lack of actual or constructive notice as a matter of law. We affirm the order, albeit on a different ground.A court may deny a motion for summary judgment if it appears from the record “that facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212 [f]). In moving for summary judgment, defendant relied upon the affidavit of its employee, who had knowledge of the condition of the staircase, to establish, prima facie, a lack of actual or constructive notice of the alleged defect. In opposing the motion, plaintiff sought to raise questions regarding the condition of the staircase in the hours before the incident and argued that no examination had been held of the defendant’s witness. As plaintiff has demonstrated that facts essential to justify opposition to defendant’s motion for summary judgment dismissing the complaint may exist but cannot be stated, the motion is denied (see CPLR 3212 [f]).Accordingly, the order is affirmed.PESCE and SOLOMON, JJ., concur.WESTON, J.P., dissents and votes to reverse the order and grant defendant’s motion for summary judgment dismissing the complaint in the following memorandum:An owner of premises who moves for summary judgment dismissing a complaint “in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” (Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d 1037, 1038 [2015]; see Campbell v. New York City Tr. Auth., 109 AD3d 455 [2013]; Levine v. Amverserve Assn., Inc., 92 AD3d 728 [2012]). “To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” (Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d at 1038; see Campbell v. New York City Tr. Auth., 109 AD3d at 456; Levine v. Amverserve Assn., Inc., 92 AD3d at 729; Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598, 598-599 [2008]). “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” (Herman v. Lifeplex, LLC, 106 AD3d 1050, 1051 [2013]; see Rodriguez v. Shoprite Supermarkets, Inc., 119 AD3d 923 [2014]; Rogers v. Bloomingdale’s, Inc., 117 AD3d 933 [2014]).Here, defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it had neither created nor had actual or constructive notice of the condition alleged by plaintiff to have caused the accident. In support of its motion, defendant relied upon an affidavit of its employee, who had been assigned to clean the station on the date of the accident, who averred that, from 7:00 a.m. until 10:00 a.m., he had swept, cleaned and “scrapp[ed]” all the staircases in the station, including the one where plaintiff had allegedly been injured, as well as the platforms, mezzanines and landings. He stated that he had picked up any debris that he found. He further stated that had he seen an oily substance on a staircase, he would have applied sand to absorb it and swept it away. At 11:45 a.m., after he had returned from lunch, he performed the same tasks as he had performed earlier. This affidavit was sufficiently specific to satisfy defendant’s initial burden (see Kravets v. New York City Hous. Auth., 134 AD3d 678 [2015]; Mehta v. Stop & Shop Supermarket Co., LLC, 129 AD3d 1037; Armijos v. Vrettos Realty Corp., 106 AD3d 847 [2013]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Furthermore, in my opinion, plaintiff did not demonstrate that a deposition of defendant’s employee was necessary in order for plaintiff to oppose defendant’s motion, especially since plaintiff had not scheduled a deposition in the three years that the action had been pending (see CPLR 3212 [f]; Douglas Manor Assn. v. Alimaras, 215 AD2d 522 [1995]; Stevens v. Hilmy, 185 AD2d 840 [1992]).Accordingly, I vote to reverse the order and grant defendant’s motion for summary judgment dismissing the complaint.December 29, 2017Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Garguilo, Ruderman, JJ.Alexis Pimentel, Esq., for appellant.Suffolk County District Attorney (Grazia Divincenzo, Esq.), for respondent.2015-207 S CR. THE PEOPLE v. GONZALEZ, MARCOS — Appeal from a judgment of the District Court of Suffolk County, First District (Jennifer A. Henry, J.), rendered August 6, 2014. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree. By decision and order of this court dated January 24, 2017, the appeal was held in abeyance and the matter was remitted to the District Court to afford defendant the opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion (People v. Gonzalez, 54 Misc 3d 139[A], 2017 NY Slip Op 50152[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The District Court (Richard T. Dunne, J.) has filed its report.ORDERED that the judgment of conviction is affirmed.When this appeal was initially heard, the sole argument raised by defendant, a citizen of El Salvador, was that he had pleaded guilty to assault in the third degree (Penal Law §120.00 [1]) as part of a negotiated plea and sentencing agreement, pursuant to which a felony complaint had been reduced, and that the record is devoid of any advisements by the court or defendant’s counsel that the conviction would subject defendant to deportation (see 8 USC §1227 [a] [2] [a] [i]; Guevara v. Holder, 533 Fed Appx 23, 26-27 [2d Cir 2013]; Mustafaj v. Holder, 369 Fed Appx 163, 166 [2d Cir 2010]; In Re Solon, 24 I & N Dec. 239 [BIA 2007]). This court held the appeal in abeyance and remitted the matter to the District Court to afford defendant an opportunity to move to vacate his plea and to establish that he would have proceeded to trial had he been aware of those consequences, and for the District Court to report its determinations of facts and law (54 Misc 3d 139[A], 2017 NY Slip Op 50152[U]).Upon remittitur, defendant’s counsel, having moved to vacate defendant’s plea, stated that defendant had already been deported on grounds unrelated to the present proceeding,1 and that he was unable to obtain defendant’s presence or even a supporting affidavit from defendant. As it was defendant’s burden to establish that there is a ” ‘reasonable probability’ that he would not have pleaded guilty had the court advised him of the possibility of deportation” (People v. Agramonte, 148 AD3d 923, 923 [2017], quoting People v. Peque, 22 NY3d 168, 176 [2013]; see e.g. People v. Singh, 147 AD3d 979, 980-981 [2017]; People v. Odle, 134 AD3d 1132, 1133 [2015]), the District Court (Richard T. Dunne, J.) properly determined that defendant had failed to satisfy his burden of proof (cf. People v. Bennett, 139 AD3d 1350, 1351 [2016]).Accordingly, the judgment of conviction is affirmed.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 20171. Defendant’s deportation on unrelated grounds does not render academic his present challenge to the validity of his plea (see People v. Harrison, 27 NY3d 281 [2016]; People v. Ventura, 17 NY3d 675 [2011]).Scott M. Bishop, Esq., for appellant.Westchester County District Attorney (Laurie Sapakoff, Esq.), for respondent.2015-2725 W CR; 2015-2776 W CR. THE PEOPLE v. FINNERTY, JAMES — Appeals from two judgments of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J., at pleas; Robert C. Cerrato, J., at sentencing), rendered November 17, 2015. The judgments convicted defendant, upon his pleas of guilty, of assault in the third degree, and criminal contempt in the second degree, respectively.ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,ORDERED that the judgments of conviction are affirmed.According to a misdemeanor information and supporting deposition, on November 21, 2014, defendant, James Finnerty, and his girlfriend, were sitting in a pickup truck in Yonkers, when defendant grabbed her neck and applied pressure, causing the girlfriend to sustain substantial pain, swelling and redness. Defendant also allegedly pulled her hair and grabbed her head and the back of her neck. Defendant was charged in a misdemeanor information with criminal obstruction of breathing or blood circulation (Penal Law §121.11 [a]), assault in the third degree (Penal Law §120.00 [1]), and harassment in the second degree (Penal Law §240.26 [1]). He was arrested on a warrant, by which it was disclosed that defendant would also be charged with a violation of probation on a 2011 case. P. Christopher Cotronei, Esq., was assigned to represent defendant on the November 21st charge and on the violation of probation. The court issued a temporary order of protection, dated November 25, 2014, against defendant and in favor of his girlfriend, and defendant was released on his own recognizance.On December 2, 2014, defendant went to the home of his girlfriend, in violation of the temporary order of protection. Defendant was arrested and charged in a misdemeanor information with criminal contempt in the second degree (Penal Law §215.50 [3]). Susan M. D’Ambrosio, Esq., was assigned to represent defendant on the criminal contempt charge, and the court released defendant on his own recognizance.On December 16, 2014, defendant appeared in the City Court of Yonkers, represented by his two attorneys, before Judge Arthur J. Doran, III. Defendant agreed to plead guilty to assault in the third degree with respect to the November 2014 charge, and criminal contempt in the second degree with respect to the December 2014 charge, with the understanding that he would be sentenced to two years of probation on each charge, the terms to run concurrently. He would also admit to the violation of probation and would be restored to probation with respect thereto. During an allocution, defendant agreed that he had had sufficient time to discuss all matters related to his pleas and admissions with his attorneys, and that he was satisfied with their representation. When asked by the court whether he was waiving his right to appeal, defendant replied “yes.” Defendant stated that he had gone over the misdemeanor conviction waiver of rights forms with his attorneys and had understood everything that was in each of those forms, including all of the rights he was waiving by entering the pleas of guilty. Defendant then pleaded guilty to the two charges and admitted to the violation of probation. Defendant acknowledged that, on November 21, 2014, he had committed the crime of assault in the third degree against his girlfriend by applying pressure to her neck and causing substantial pain, and that, on December 2, 2014, he had committed the crime of criminal contempt in the second degree by intentionally violating an order of protection issued by the City Court of Yonkers by going to the home of his girlfriend. He further admitted that he had committed those 2014 offenses after having been previously placed on probation, and that those two offenses violated the terms and conditions of that probationary sentence. He agreed that he was entering all of the pleas and admissions freely and voluntarily, and that everything he said in court was true.By notice of motion dated April 7, 2015, defendant, by his counsel, P. Christopher Cotronei, moved pursuant to CPL 220.60 to vacate his plea of guilty to assault in the third degree. In an affidavit in support of the motion, defendant alleged that, during the court proceeding of December 16, 2014, “there was little opportunity to voice my concerns” based on what he was “hearing in the distance, during bench conferences and discussions between my attorney and the assistant District Attorney, and comments made to my attorney by the probation officer as well as the Judge in the Part.” Defendant was convinced that had he not accepted the offer, “the new charges were going to be adjourned for a Jury Trial” and he would be in jail on the violation of probation while awaiting the jury trial. He had no idea that he could have defended himself on the new charges while remaining out of jail. He did not want to be incarcerated during the Christmas holidays and believed that he would have been taken into custody if he had not accepted the plea bargain. He also denied that he had choked or assaulted his girlfriend.By notice of motion dated June 4, 2015, defendant, by his counsel, Susan M. D’Ambrosio, moved pursuant to CPL 220.60 to vacate his plea of guilty to criminal contempt in the second degree based on nearly identical grounds as his motion to vacate his plea to assault in the third degree.In a memorandum of law in opposition to both motions, the People argued that defendant’s claims were insufficient to warrant the withdrawal of his guilty pleas, as they were unsupported by any independent source other than his own self-serving, conclusory affidavit, that was belied by his allocution. The People contended that defendant had failed to establish that he had been under duress when he had entered his guilty pleas. The People further argued that defendant’s contention was baffling as he had previously been arraigned on every docket pending before the court, and had been released on his own recognizance on each docket. His protestations of innocence were devoid of any factual account of either incident. At the plea allocution, defendant had expressly acknowledged that he was satisfied with the representation of his attorneys, who had negotiated highly advantageous plea agreements on his behalf.In an order dated July 23, 2015, the City Court (Arthur J. Doran, III, J.) denied the motions. The court noted that the record established that defendant had knowingly, voluntarily, and intelligently entered his pleas of guilty, and that defendant’s conclusory claims of innocence and duress were belied by his statements under oath at the plea proceeding. On November 17, 2015, the City Court (Robert C. Cerrato, J.) sentenced defendant to concurrent terms of two years’ probation.On appeal, defendant claims that he did not receive the effective assistance of counsel because both attorneys failed “to meaningfully, clearly and fully explain the import and consequences of entering a plea.” Defendant otherwise repeats the same contentions that he raised in the City Court.At the outset, we note that defendant’s waiver of his right to appeal is invalid, as it is not evident on the face of the record that he understood the waiver, and the court never informed him that it was separate and distinct from the waiver of his trial rights (see People v. Lopez, 6 NY3d 248, 256 [2006]; People v. Caine, 149 AD3d 769 [2017]).“A motion to withdraw a plea of guilty is addressed to the sound discretion of the court, and its determination generally will not be disturbed absent an improvident exercise of discretion” (People v. Marryshow, 135 AD3d 964, 964 [2016]; see People v. Seeber, 4 NY3d 780 [2005]). Here, defendant, at the allocution, agreed that he had had sufficient time to discuss all matters related to the pleas with his attorneys and that he was entering the pleas freely and voluntarily. Defendant’s “unequivocal acknowledgment under oath during the plea proceeding that no one had threatened, coerced, or influenced him against his will into pleading guilty and that he was satisfied with the services provided by his attorneys belied his…claims” that he did not understand the terms and conditions of the pleas (People v. Marryshow, 135 AD3d at 965; see People v. Wilkov, 77 AD3d 512 [2010]). Defendant’s claims were based on his self-serving and conclusory allegations of confusion, innocence and ineffective assistance of counsel, and are without merit (see People v. Jerome, 98 AD3d 1188, 1188 [2012]; People v. De Gaspard, 170 AD2d 835, 837 [1991]; People v. Brown, 168 AD2d 702 [1990]; People v. Bell, 141 AD2d 749, 750 [1988]). The record demonstrates that defendant pleaded guilty voluntarily, knowingly and intelligently (see People v. Fiumefreddo, 82 NY2d 536, 543 [1993]). Consequently, the City Court did not improvidently exercise its discretion in denying the motions to vacate the pleas.Accordingly, the judgments of conviction are affirmed.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Falcon, Jacobson & Gertler, LLP (Kenneth J. Falcon, Esq.), for appellant.Lawrence Levine, Esq., respondent pro se.2016-363 N C. LEVINE v. PINCUS — Appeal from a judgment of the District Court of Nassau County, First District (Robert E. Pipia, J.), entered January 14, 2016. The judgment, entered pursuant to a decision of that court dated June 25, 2015, after a nonjury trial, awarded plaintiff the principal sum of $900.ORDERED that, on the court’s own motion, the notice of appeal from the decision dated June 25, 2015 is deemed a premature notice of appeal from the judgment entered January 14, 2016 (see CPLR 5520 [c]); and it is further,ORDERED that the judgment is affirmed, without costs.Plaintiff, an attorney, commenced this action to recover $4,500 for legal work he had allegedly performed for defendant from November 30, 2009 until January 10, 2010, asserting causes of action to recover damages in quantum meruit or, in the alternative, upon an account stated. After a nonjury trial, the District Court, in a decision dated June 25, 2015, awarded plaintiff the principal sum of $900, based upon quantum meruit. We deem defendant’s appeal from the decision to be from the judgment that was subsequently entered on January 14, 2016, pursuant to the decision (see CPLR 5520 [c]).Rules of the Appellate Division, All Departments (22 NYCRR) §1215.1 (b) requires an attorney who undertakes representation and enters into an arrangement for, or charges or collects, any fee, to provide a letter of engagement or a formal written retainer agreement explaining the scope of the legal services to be provided, the fees to be charged, the billing practices to be followed and, where applicable, the right to arbitrate fee disputes. Rules of the Appellate Division, Second Department (22 NYCRR) §691.20 requires an attorney to file a copy of a retainer or compensation agreement with the Office of Court Administration. Contrary to defendant’s contention, however, plaintiff was not precluded from recovering in quantum meruit based on his failure to comply with Rules of the Appellate Division, All Departments (22 NYCRR) §1215.1 (see Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54, 62-64 [2007]; see also Gary Friedman, P.C. v. O’Neill, 115 AD3d 792 [2014]; Utility Audit Group v. Apple Mac & R Corp., 59 AD3d 707 [2009]) or Rules of the Appellate Division, Second Department (22 NYCRR) §691.20 (see Siracusa v. Fitterman, 110 AD3d 1055 [2013]; Micro-Spy, Inc. v. Small, 69 AD3d 687 [2010]). Upon a review of the record, we find that plaintiff established his entitlement to recover in quantum meruit the amount awarded by the District Court.Accordingly, the judgment is affirmed.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant.Rubin, Fiorella & Friedman, LLP (Kevin J. Davis, Esq.), for respondent.2016-744 S C. EXCEL SURGERY CTR., L.L.C. v. HERTZ CLAIM MGT. CORP. — Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 23, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary.In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there had been a lack of medical necessity for the services at issue (see American Chiropractic Care, P.C. v. Praetorian Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50346[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). However, in opposition to the motion, plaintiff submitted an affidavit by one of the chiropractors who had performed the services at issue, which, as plaintiff argues on appeal, “meaningfully referred to defendant’s peer review report and sufficiently rebutted the conclusions set forth therein” (Vinings Spinal Diagnostic, P.C. v. Geico Gen. Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51897[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; see also Westcan Chiropractic, P.C. v. Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]) and, thus, was sufficient to raise a triable issue of fact as to medical necessity.Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant.Rubin, Fiorella & Friedman, LLP (Kevin J. Davis, Esq.), for respondent.2016-750 S C. EXCEL SURGERY CTR., L.L.C. v. HERTZ CLAIM MGT. CORP. — Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 23, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary.For the reasons stated in Excel Surgery Ctr., L.L.C., as Assignee of Sylvester Leemow v. Hertz Claim Mgt. Corp. (__Misc 3d _____, 2017 NY Slip Op ______ [appeal No. 2016-744 S C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant.Rubin, Fiorella & Friedman, LLP (Kevin J. Davis, Esq.), for respondent.2016-751 S C. EXCEL SURGERY CTR., L.L.C. v. HERTZ CLAIM MGT. CORP. — Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 22, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary.For the reasons stated in Excel Surgery Ctr., L.L.C., as Assignee of Sylvester Leemow v. Hertz Claim Mgt. Corp. (__Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2016-744 S C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Nassau/Suffolk Law Services Committee, Inc. (Judy Slater Hirshon, Esq.), for appellant.Horing, Welikson & Rosen P.C. (Ashka S. Patwa, Esq.), for respondent.2016-793 N C. 385 BAYVIEW, LLC v. WARREN — Appeal from a final judgment of the District Court of Nassau County, First District (James M. Darcy, J.), entered March 1, 2016. The final judgment, after a nonjury trial, awarded landlord possession in a holdover summary proceeding. The appeal from the final judgment brings up for review so much of an order of that court (Douglas J. LeRose, J.) entered April 6, 2015 as, upon reargument, adhered to a prior determination of that court dated December 15, 2014 denying tenant’s motion to dismiss the petition (see CPLR 5501 [a] [1]).ORDERED that the final judgment is reversed, without costs, so much of the order entered April 6, 2015 as, upon reargument, adhered to the prior determination dated December 15, 2014 denying tenant’s motion to dismiss the petition is vacated, and tenant’s motion is granted.Landlord commenced this holdover summary proceeding after the service of a 30-day notice of termination, alleging that, upon the expiration of tenant’s lease several months earlier, her tenancy had become month to month. Tenant moved to dismiss the petition, alleging that she is the recipient of enhanced voucher assistance under the Section 8 program (see 42 USC §1437f [t]), a fact that is not disputed by landlord, and that her status protects her from eviction from her apartment without cause. By amended order entered December 15, 2014, the District Court (Douglas J. LeRose, J.) denied her motion. By order entered April 6, 2015, the court (Douglas J. LeRose, J.), upon reargument, adhered to its prior determination. After a nonjury trial, the District Court (James M. Darcy, J.) awarded landlord a final judgment of possession.Under the enhanced voucher program, “the assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project” (42 USC §1437f [t] [1] [B]). In section 11-3 (B) of its publication entitled “Section 8 Renewal Policy: Guidance for the Renewal of Project-Based Section 8 HAP Contracts” (2015), the United States Department of Housing and Urban Development has recognized a “right to remain,” stating that, where a tenant has chosen to exercise that right, tenancies may only be terminated for cause under federal, state or local law, and that “owners must continually renew the lease of an enhanced voucher family.” Indeed, given its ordinary meaning, the language of the statute itself makes clear that enhanced voucher recipients “have the right to remain in their apartments as long as they remain eligible and continue to occupy the apartments” (Estevez v. Cosmopolitan Assoc. LLC, 2005 WL 3164146, *4, 2005 US Dist. LEXIS 29844, *12 [ED NY Nov. 28, 2005, No. 05 CR 4318]). “[T]here is nothing in the statute that provides a time-limit to the right to remain,” and, in fact, it would be “illogical to provide a tenant with the right to remain without requiring the landlord to offer the tenant the option to renew the lease” (Jeanty v. Shore Terrace Realty Assn., 2004 WL 1794496, *5, 2004 US Dist. LEXIS 15773, *18 [SD NY Aug. 10, 2004, No. 03 CIV 8669]). Here, tenant’s right to remain will continue in effect and landlord must offer to renew her lease “so long as the property is offered as rental housing and [tenant] receives enhanced vouchers, absent good cause to terminate her tenancy under Federal, State or local law and provided the public housing authority continues to find the rent reasonable” (Jeanty, 2004 WL 1794496 at *5, 2004 US Dist. LEXIS 15773 at *19).We note that the so-called “right to remain” does not conflict with 42 USC §1437f (d) (1) (B) (ii), which requires that any Section 8 lease include a provision prohibiting the landlord from terminating the tenancy only during the term of the lease, “except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause” (see Rosina v. Parra, 18 Misc 3d 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). Rather, the “right to remain” is an additional measure enacted to protect enhanced voucher recipients.Since landlord has not alleged, let alone demonstrated, that tenant has lost the “right to remain” in the subject apartment, tenant’s motion to dismiss the petition should have been granted.Accordingly, the final judgment is reversed, so much of the order entered April 6, 2015 as, upon reargument, adhered to the prior determination dated December 15, 2014 denying tenant’s motion to dismiss the petition is vacated, and tenant’s motion is granted.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Martin Dekom, appellant pro se.Foster & Garbus, LLP (Annette T. Altman, Esq.), for respondent.2016-956 N C. STATE FARM BANK F.S.B. v. DEKOM — Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), entered February 9, 2016. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7).ORDERED that the order, insofar as appealed from, is affirmed, without costs.Plaintiff commenced this action to recover the principal sum of $14,672.48 for breach of a credit card agreement, and upon an account stated. In a pre-answer motion, defendant moved to dismiss the complaint pursuant to, among other things, CPLR 3211 (a) (3) and (7). Defendant argued that plaintiff lacked standing to sue since it had failed to establish a valid assignment of the credit card account. Additionally, defendant argued that plaintiff is barred from collecting the alleged debt since it is a debt collector. The District Court denied the motion, and defendant appeals.“On a defendant’s motion to dismiss the complaint based upon the plaintiff’s lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law” (MLB Sub I, LLC v. Bains, 148 AD3d 881, 881-882 [2017]; see Lopes v. Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, defendant relied upon letters from a collection agency and plaintiff’s attorneys to establish that the credit card account had been assigned by plaintiff. However, neither letter supports a finding that the alleged debt had been assigned. Since defendant failed to meet his burden of establishing, prima facie, that plaintiff lacks standing to sue as a matter of law, plaintiff had no burden of affirmatively establishing its standing as a matter of law (see MLB Sub I, LLC, 148 AD3d at 882). Consequently, that branch of the motion was properly denied by the District Court.Defendant’s remaining contentions with respect to the branches of the motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7) are either without merit or are unpreserved for appellate review.Accordingly, the order, insofar as appealed from, is affirmed.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017Lawrence R. Rosano, appellant pro se.Adams, Hanson & Kaplan (John P. Martorella, Esq.), for respondent.2016-2069 N C. ROSANO v. SMART-BUSH — Appeal, on the ground of inadequacy, from a judgment of the District Court of Nassau County, First District (Darlene D. Harris, J.), entered May 28, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $857.31.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover the principal sum of $4,786.53 for damage to his car. At a nonjury trial, plaintiff testified that he had been a passenger in his own car when it was “broadsided” by defendant’s vehicle. Plaintiff also asserted that, although it was dark out, the headlights on defendant’s car had been off. Defendant testified that the headlights on her car had been on, and that she had been proceeding straight through an intersection on a green light when plaintiff’s vehicle “turned from the left and came right across the front of [her] car,” causing the collision. Plaintiff appeals, on the ground of inadequacy, from a judgment after trial awarding plaintiff the principal sum of $857.31.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). Here, the judgment indicates that the District Court may have apportioned liability between the drivers of the vehicles involved in the action. We note that the cases of Kalechman v. Drew Auto Rental, Inc. (33 NY2d 397 [1973]) and Schuyler v. Perry (69 AD3d 33 [2009]), upon which plaintiff relies, are not to the contrary.Upon a review of the record, we find no basis to disturb the District Court’s determination, as it provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807). We note that we do not consider those materials submitted on appeal which are dehors the record (see Chimarios v. Duhl, 152 AD2d 508 [1989]).Accordingly, the judgment is affirmed.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017D’Ambrosio & D’Ambrosio, P.C. (James J. D’Ambrosio, Esq.), for appellant.Theresa Harper, respondent pro se (no brief filed).2016-2110 N C. HARPER v. EAST COAST FUNDING — Appeal from a judgment of the District Court of Nassau County, First District (Darlene D. Harris, J.), entered March 10, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial limited to the issue of damages.Plaintiff seeks in this small claims action to recover the principal sum of $5,000, based on defendant’s failure to surrender plaintiff’s license plates to the New York State Department of Motor Vehicles (DMV) following the repossession of plaintiff’s vehicle by defendant’s agent. At a nonjury trial, plaintiff established that, in August 2013, defendant’s agent had repossessed her vehicle but had failed to surrender her license plates to the DMV, and that, as a result of the failure to surrender her license plates, her driver’s license had been suspended and then restricted for an extended period of time, and she had been charged a $50 suspension termination fee. However, plaintiff failed to establish that she had paid that fee. Plaintiff also alluded to, but failed to prove or substantiate the basis for, an $8 daily fee over a 411-day period, which she claimed she had to pay to the DMV as a result of defendant’s agent’s failure to surrender her license plates. Plaintiff established that her automobile insurance policy had expired on January 10, 2014 and that she had been charged $3,324.69 for automobile insurance coverage through January 10, 2014, but failed either to establish what portion of the insurance bill was attributable to the period following August 13, 2013, when her vehicle had been repossessed, or that she had paid the bill. Following the trial, the District Court awarded plaintiff the principal sum of $5,000.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]).Vehicle and Traffic Law §425 requires, among other things, that any firm that repossesses a vehicle shall, within 24 hours of repossessing a vehicle, deliver the license plates on the vehicle to the nearest district office of the DMV either personally or by special delivery first-class mail. Plaintiff’s testimony and her documentary evidence established that defendant had failed to comply with that requirement, and defendant failed to refute plaintiff’s evidence. While, upon a review of the record, we find that plaintiff failed to prove the amounts that she had been charged as a consequence of defendant’s failure to comply with Vehicle and Traffic Law §425, and that she had, in fact, paid such sums, the inadequacy of plaintiff’s proof appears to be attributable, at least in part, to the manner in which the trial was conducted. In this circumstance, we conclude that substantial justice (see UDCA 1804, 1807) requires that there be a new trial limited to a determination of plaintiff’s actual damages.Accordingly, the judgment is reversed and the matter is remitted to the District Court for a new trial limited to the issue of damages.MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.December 28, 2017
