Appellate Division Second Department Hand Down List decided on: January 17, 2018 By Leventhal, J.P.; Hall, Austin and Sgroi, JJ.

Appellate DivisionSecond DepartmentHand Down List decided on:January 17, 2018By Leventhal, J.P.; Hall, Austin and Sgroi, JJ.Napoleon Gomez, etc., res-ap, v. Thelma O. Cabatic, etc. def, Arlene B. Mercado, a/k/a Dr. Arlene Basa Mercado, appellant-res — (Index No. 12872/11)APPEAL by the defendant Arlene B. Mercado, a/k/a Dr. Arlene Basa Mercado, in a consolidated action to recover damages for wrongful death, etc., as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, entered in Queens County on April 7, 2014 (Darrell L. Gavrin, J.), as denied those branches of her motion, in effect, pursuant to CPLR 4404(a) which were to set aside a jury verdict on the issue of punitive damages and for judgment as a matter of law dismissing the demand for punitive damages, or, in the alternative, to set aside the jury verdict on the issue of punitive damages as contrary to the weight of the evidence or in the interest of justice, and for a new trial on the issue of punitive damages, and granted that branch of her motion which was to set aside the jury verdict on the issue of punitive damages as excessive only to the extent of ordering a new trial on the issue of punitive damages unless the plaintiff stipulated to a reduction of the punitive damages award from the principal sum of $7,500,000 to the principal sum of $1,200,000, and CROSS APPEAL by the plaintiff, as limited by his brief, from so much of the same order as, in effect, granted that branch of that defendant’s motion which was to set aside the jury verdict on the issue of punitive damages as excessive to the extent of ordering a new trial on the issue of punitive damages unless he stipulated to a reduction of the punitive damages award from the principal sum of $7,500,000, to the principal sum of $1,200,000.Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and Sean F. X. Dugan of counsel), for appellant-respondent.Paul A. Hayt, New York, NY (Brian Isaac of counsel), for respondent-appellant.Kern Augustine Conroy & Schoppmann, P.C., Westbury, NY (Michael A. Schoppmann and Donald R. May of counsel), for amicus curiae Medical Society of the State of New York.LEVENTHAL, J.P.The main question before us is whether a plaintiff may recover punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. We answer this question in the affirmative.BackgroundThis action arises from the death of a six-year-old child, Claudialee Gomez Nicanor, who developed diabetic ketoacidosis after the defendant Arlene B. Mercado failed to diagnose the child’s type I diabetes. According to the evidence presented at trial, the child, who was born in December 2003, received her early pediatric care at two different hospitals. On October 26, 2009, when Claudialee was five, the defendant Thelma O. Cabatic became the child’s pediatrician. A few days later, Cabatic recommended that Claudialee see a pediatric endocrinologist because the child’s blood sugar level was high. The child’s mother asked Cabatic for the name of an endocrinologist, and Cabatic referred her to Mercado. Mercado saw Claudialee three times, October 31, 2009, November 14, 2009, and December 12, 2009. Meanwhile, Cabatic again saw Claudialee in late November 2009, and on January 9, 2010.On January 21, 2010, Claudialee returned home from school complaining that she was tired and did not feel well, and brought with her a note from the school nurse describing her symptoms. The child vomited that evening and said that she had a stomach ache. The next day, after having tried, unsuccessfully, to have Claudialee seen by Cabatic, the child’s mother took Claudialee to a hospital. Claudialee remained hospitalized until her death on January 24, 2010. According to the final autopsy report, the child’s death was “attributable to bilateral cerebellar tonsilar herniation secondary to cerebral edema following diabetic ketoacidosis.”Claudialee’s father, Napoleon Gomez, as administrator of the child’s estate (hereinafter the plaintiff), subsequently commenced separate actions against Cabatic and Mercado seeking to recover damages for medical malpractice and wrongful death. The two actions were thereafter consolidated.As relevant to the issues raised on appeal, at her examination before trial, Mercado gave testimony indicating that she prepared and signed a typewritten report memorializing Claudialee’s first visit on October 31, 2009, the same day that visit occurred. Specifically, Mercado was asked and answered:“Q. When was the first time you saw her?“A. 10/31/09.“Q. That appears on page four of Plaintiff’s Exhibit B. Is that correct?“A. Yes.“Q. Your examination—or you issued a report in connection with this examination. Is that right?“A. Yes.“Q. And is this a two-page report that you issued that day or you issued in connection with seeing the patient that day?“A. Yes.“Q. And did you sign that document?“A. I did.“Q. What date did you sign the document on?“A. The date where I had—you know, the 10/31/09.“Q. Were you involved in typing this report?“A. Yes.”The typewritten record for the child’s final visit with Mercado on December 12, 2009, stated, “[n]ext visit to record random BG’s fasting and 2 hour post meal. TCB in 4 weeks.” During her examination before trial, Mercado was shown an appointment card indicating that the child was not scheduled to return for an appointment with her until February 13, 2010, about two months later. Mercado said that her nephews were responsible for scheduling patient appointments and that she was not involved in selecting the February 2010 date.During the course of her trial testimony, Mercado stated that she wrote a letter, dated February 26, 2010, thanking Cabatic for referring the child to Mercado, and attaching “consult/follow-up visit notes.” Mercado denied being aware of the fact that Claudialee had been dead for more than one month when she wrote the letter. When asked whether she decided to send her chart to Cabatic “[j]ust [out] of the blue,” Mercado answered, “[y]ou have a letter also to request for the record.” Mercado acknowledged that the plaintiff’s attorney’s firm sent a letter asking for the medical records and that Mercado’s sister, who was Mercado’s office manager, sent a certified copy of the records to the firm. Mercado was asked, and answered, in part:“Q. We sent a letter asking for records, okay, but on February 26 you sent a copy of the chart you said in response to having gotten the letter from me. You sent a copy of your chart to Dr. Mercado?“A. No, Dr. Cabatic.“Q. Dr. Cabatic, I apologize. And then a couple of weeks later you sent it to us, is that correct?“A. Yes.“Q. You did send everybody the same chart?“A. Yes.“Q. In that letter you have a typewritten report. I’m going back to your chart. Now, you have the typewritten report, this to Dr. Cabatic, you have a typewritten report and you have your December—your October 31, ’09, two-page typewritten report of the visit, is that right?“A. Yes.“Q. You didn’t type that when my client was there, when [the child] was there, did you?“A. I had scribbled. Also, I have a paper there. I do take like history of the patient and then type them later.“Q. How much later?“A. When you ask the record, sir.“THE COURT: When later?“Q. When I asked for the records? So you type them after [the child] died?“A. When I have all the information. It’s the reference.“Q. Let me try to understand this, you indicated that you got a letter from my office, clearly we weren’t in this case until after she died. You get a letter from my office and then you sat down said, oh, I better type all these reports, is that what happened?“A. No.”Mercado then gave testimony to the effect that she saved the original, handwritten notes memorializing her first visit with Claudialee, but, after receiving the letter from the plaintiff’s attorney’s firm, she destroyed the original, handwritten notes memorializing her two subsequent visits with the child. Mercado was asked, and answered:“Q. Now, you told us that you created the typed written part for the Halloween, the 10/31 visit after you got the letter from my office, did you do all three of them at the same time?“A. Yes.“Q. So this one was done without the help of any squiggly notes; is that right?“A. No.“Q. No?“THE COURT: You had notes?“THE WITNESS: I have like piece of paper, but after typing—“THE COURT: Where is it[?]“THE WITNESS:—I throw them out. After typing I will throw them out.“THE COURT: Four months later you throw them out?“THE WITNESS: Yes.”Later, she was asked, and answered:“Q. It’s a history that you have to type and, Doctor, this one, all of these are done after you get the letter from the lawyer, is that right?“A. Yes.“Q. Could you refer to your notes, your scribble notes for 12-12?“A. I don’t have it here.“Q. You don’t have it here or you don’t have it?“A. I don’t have it.“Q. You didn’t have it at the deposition, you didn’t have it when your sister sent us the chart, they have all been thrown out, destroyed?“A. It’s a scribble, so it’s just a piece of paper.“Q. But you saved the first scribble?“A. It’s official registration form.”The child’s mother testified that at the conclusion of Mercado’s December 12, 2009, visit with the child, Mercado instructed the person scheduling appointments to make an appointment for the child to see Mercado again in two months; the child’s mother was given, and retained, an appointment card with the date February 13, 2010. The appointment card bearing Mercado’s office information, the child’s name, and the follow-up date, February 13, was admitted into evidence. Mercado acknowledged that the typewritten record for the December 12, 2009, visit indicated that the child was to return in four weeks, while the appointment card indicated that the child was to return on February 13, 2010, that date being roughly nine weeks after December 12, 2009. Mercado offered no explanation for the discrepancy between the follow-up date indicated in the typewritten record and the follow-up date indicated on the appointment card.The plaintiff’s expert physician, Craig Alter, explained the differences between type 1 diabetes and type 2 diabetes. In type 1 diabetes, the body’s immune system attacks the part of the pancreas that makes insulin. Type 2 diabetes was related to a person’s weight. In type 2 diabetes, the body produced insulin, “just not enough to get the job done, sometimes called insulin resistance, that leads—can lead to diabetes. But it’s not because they cannot make insulin at all, big difference.” Weight loss and exercise were crucial to treating a person who had type 2 diabetes, and insulin was often required as well. ”In Type 1 if we don’t give them insulin then they will die.” Alter explained that although a growing number of children were being diagnosed with type 2 diabetes, “[i]f you tell me there is a five year old with diabetes, the chance they have Type 1 is probably 99.99 percent. If you tell me—they are obese I would say, okay, the chance is 99.7 percent it’s almost definitely Type 1.”Alter opined that Claudialee’s death was caused by complications from type 1 diabetes. Alter believed that Mercado departed from the accepted standard of care by not teaching the child’s family about symptoms of diabetes—such as weight loss, tiredness, lightheadedness, excessive thirst, and excessive urination—and by not recommending that Claudialee’s family perform home testing to measure the child’s blood sugar and ketones. He also faulted Mercado for assuming that the child was developing type 2 diabetes and not even considering that the child was developing type 1 diabetes.Over the objection of Mercado’s attorney, the Supreme Court agreed to submit to the jury the question of whether punitive damages should be awarded against Mercado. The court instructed the jury on punitive damages, in part:“The burden is on the plaintiff to prove that Arlene Mercado, MD maliciously destroyed her handwritten notes pertaining to her examination of [the child] after receiving a letter from plaintiff’s attorney. To this we are referring to the scribble notes. This means evidence that satisfies you that there is a high degree of probability that there was malice, as I will define for you.“If you decide for the plaintiff, it’s not enough to find that there is a preponderance of the evidence in the plaintiff’s favor… . I explained that to you previously, but here a party must establish their case by clear and convincing evidence. That means they must prove to you that the evidence makes it highly probable that what they claim is what actually happened.“If, upon all the evidence, you are satisfied that there is a high probability, you must decide for the plaintiff. If you are not satisfied that there is such a high probability, you must decide on this question for the defendant, Dr. Mercado.“The plaintiff contends that defendant Mercado’s act in destroying scribble notes after being notified by plaintiff’s letter was a malicious act requiring the imposition of punitive damages.“Dr. Mercado contends that she had a reasonable excuse for disposing of her scribble notes from her 11/14/09 exam and the 12/12/09 exam and that she merely utilized the scribble notes and typed them up when asked for copies of her records. The typed notes essentially replaced her scribble notes.“In addition to awarding damages to compensate the estate of [the child] for her death, you may but are not required to award the estate punitive damages if you find that the act of the defendant, Dr. Mercado, was malicious.“Punitive damages may be awarded for conduct that shows a high degree of immorality and indifference to civil obligations. The purpose of punitive damages is not to compensate the estate but to punish the defendant, Dr. Mercado, for malicious acts and, therefore, to discourage Dr. Mercado and other doctors from acting in a similar way in the future.“An act is malicious when it is done deliberately, with knowledge of the plaintiff’s rights and with the intent to interfere with those rights. If you find that Arlene Mercado’s acts were not malicious, you need proceed no further in your deliberations on this issue.”The jury found that Mercado departed from accepted medical practice in the diagnosis, care, or treatment of Claudialee, and that this departure was a substantial factor in causing the injury that resulted in the child’s death. The jury awarded damages in the sums of $400,000 for the child’s pain and suffering and $100,000 for monetary loss sustained as a result of the child’s death. Additionally, the jury found that the plaintiff was entitled to punitive damages against Mercado. Following a separate trial on the amount of punitive damages to be awarded, the jury awarded punitive damages against Mercado in the sum of $7,500,000.In response to an oral application by Mercado’s attorney, the Supreme Court instructed the parties to make written submissions on the issue of punitive damages. Thereafter, Mercado, in effect, moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of punitive damages and for judgment as a matter of law dismissing the demand for punitive damages, or, in the alternative, to set aside the jury verdict on the issue of punitive damages as contrary to the weight of the evidence or in the interest of justice, and for a new trial on the issue of punitive damages, or, in the alternative, to set aside the jury verdict on the issue of punitive damages as excessive.In an order entered April 7, 2014, the Supreme Court, in effect, granted that branch of Mercado’s motion which was to set aside the jury verdict on the issue of punitive damages as excessive only to the extent of ordering a new trial as to punitive damages unless the plaintiff stipulated to a reduction of the principal sum of the punitive damages award from $7,500,000 to $1,200,000, and otherwise denied Mercado’s motion.Mercado appeals, arguing that the Supreme Court erred in submitting the issue of punitive damages to the jury, that the jury’s verdict on punitive damages was not supported by legally sufficient evidence and was contrary to the weight of the evidence, that the verdict on punitive damages must be set aside in the interest of justice because of improper summation comments made by the plaintiff’s attorneys, and that the award of punitive damages, even as reduced, was excessive. The plaintiff cross-appeals, arguing that the jury’s award of punitive damages should not have been reduced.Punitive Damages_for Destroying_Medical RecordsWe first address Mercado’s contention that, as a matter of law, her act of destroying the original records of her treatment of the child cannot support an award of punitive damages. Mercado argues that her destruction of the original records did not contribute to causing the child’s death and did not prevent the plaintiff from successfully prosecuting this action.An award of punitive damage serves the dual purpose of punishing the offending party for wrongful conduct and deterring others from engaging in similar conduct (see        Chauca v. Abraham, __NY3d__, 2017 NY Slip Op 08158 [2017]; Ross v. Louise Wise Servs., Inc., 8 NY3d 478, 489; Krohn v. New York City Police Dept., 2 NY3d 329, 335; Solis-Vicuna v. Notias, 71 AD3d 868, 871). Punitive damages have been described as a “‘hybrid between a display of ethical indignation and the imposition of a criminal fine,’” and reflect the community’s condemnation of one who wilfully causes hurt or injury to another (Home Ins. Co. v. American Home Prods. Corp., 75 NY2d 196, 203, quoting Reynolds v. Pegler, 123 F Supp. 36, 38 [SD NY], affd 223 F2d 429 [2d Cir]; see Thoreson v. Penthouse Intern., Ltd., 80 NY2d 490, 497). Such damages are not designed to compensate the plaintiff for the injuries he or she has suffered, but “as punishment for gross misbehavior for the good of the public” (Home Ins. Co. v. American Home Prods. Corp., 75 NY2d at 203; see        Ross v. Louise Wise Servs., Inc. 8 NY3d at 489; Chiara v. Dernago, 128 AD3d 999, 1003; see also Prosser & Keeton, Torts §2 at 9 [5th ed 1984] [punitive damages "are given to the plaintiff over and above the full compensation for the injuries, for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant's example"]).In New York, a demand for punitive damages usually arises in the context of an action to recover damages for intentional torts, such as fraud, libel, or malicious prosecution, and “therefore the availability of punitive damages is often discussed in terms of conduct that is intentional, malicious, and done in bad faith” (Randi A. J. v. Long Is. Surgi-Ctr., 46 AD3d 74, 80). However, “[c]ourts in this state have long recognized that those who, without specifically intending to cause harm, nevertheless engage in grossly negligent or reckless conduct showing an utter disregard for the safety or rights of others, may also be deserving of the imposition of punitive damages” (id. at 81). In a medical malpractice action, punitive damages may be recovered where the defendant’s conduct “evinces a high degree of moral culpability or willful or wanton negligence or recklessness” (Dmytryszyn v. Herschman, 78 AD3d 1108, 1109; see        Pellegrini v. Richmond County Ambulance Serv., Inc., 48 AD3d 436, 437; Randi A.J. v. Long Is. Surgi-Center., 46 AD3d 74, 80).In this case, the Supreme Court instructed the jury that it could award punitive damages if it found that the plaintiff proved, by clear and convincing evidence, that Mercado “maliciously destroyed her handwritten notes pertaining to her examination of [the child] after receiving a letter from plaintiff’s attorney.” The court charged the jury that “[a]n act is malicious when it is done deliberately, with knowledge of the plaintiff’s rights and with the intent to interfere with those rights.” Thus, the first question we must answer is whether a plaintiff may recover punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Courts that have considered this issue both in New York and in other states have reached differing conclusions.For example, in Devadas v. Niksarli (2009 NY Slip Op 30922[U] [Sup Ct, NY County]), the Supreme Court, New York County, denied the plaintiffs leave to amend their complaint to seek punitive damages against an ophthalmologist who had allegedly tampered with the injured plaintiff’s medical records. In concluding that the proposed amendment lacked merit, the court noted that there was no evidence that the medical treatment provided by the defendant ophthalmologist was so wantonly dishonest, grossly indifferent to patient care, or so malicious or reckless as to sustain an award of punitive damages. The court further reasoned that the defendant’s conduct in allegedly tampering with the medical records could not support a claim for punitive damages because it occurred subsequent to the alleged malpractice, and thus did not arise from the medical treatment provided to the injured plaintiff.To similar effect is Whittlesey v. Espy (1996 WL 689402, 1996 US Dist LEXIS 17638 [SD NY, No. 96 Civ. 0671 (BSJ)]), a memorandum and order of the United States District Court, Southern District of New York. In Whittlesey, the plaintiff moved for leave to amend her complaint to include a demand for punitive damages based on allegations that the defendant physician, after learning of the plaintiff’s intent to pursue the case, intentionally added to and altered the plaintiff’s medical records and then repeatedly denied that he had done so. The District Court stated that in New York, a plaintiff’s entitlement to punitive damages could only arise in connection with the tortious act about which the plaintiff complained. The court then concluded that since the plaintiff sought to support her punitive damages claim “not with behavior connected to the alleged malpractice, but with conduct occurring after the alleged tort transpired,” she could not recover such damages. The court added that while evidence of the alleged alterations might be admissible at trial or properly be the subject of a sanctions application, they could not support a claim for punitive damages (see 1996 WL 689402, *1, 1996 US Dist LEXIS 17638, *1).The Ohio Supreme Court reached a contrary conclusion in Moskovitz v. Mt. Sinai Med. Ctr. (69 Ohio St 3d 638, 653, 635 NE2d 331, 344), holding that punitive damages could be awarded in a medical malpractice action upon a showing of “actual malice.” The court found that “actual malice” could be demonstrated by evidence that a doctor intentionally altered, falsified, or destroyed medical records to avoid liability for his or her medical negligence, regardless of “whether or not the act of altering, falsifying or destroying records directly causes compensable harm” (69 Ohio St 3d at 653, 635 NE2d at 344). In reaching its conclusion, the court emphasized that the act of altering or destroying records to avoid liability “is particularly deserving of punishment in the form of punitive damages and… a civilized society governed by rules of law can require no less” (69 Ohio St 3d at 651, 635 NE2d at 343).Two New York appellate cases also suggest that a medical professional may be subject to punitive damages for actions committed in relation to medical records in an attempt to evade potential malpractice liability. In Abraham v. Kosinski (251 AD2d 967) (hereinafter Abraham I), the plaintiff commenced an action against the defendant physician seeking damages for medical malpractice, fraud, gross negligence or recklessness, and an award of punitive damages. The defendant moved to dismiss the fraud and gross negligence or recklessness claims for failure to state a cause of action, and to strike the claim for punitive damages. The Supreme Court denied the defendant’s motion, and the Appellate Division, Fourth Department, affirmed. The Fourth Department concluded that the claims alleging fraud and gross negligence or recklessness were sufficient to state a cause of action because the damages flowing from those alleged acts included the plaintiff’s continuation of courses of treatment that were ineffective or may not have been pursued but for the alleged fraud, and the plaintiff’s deprivation of courses of treatment that would have been pursued but for the fraudulently withheld information. With respect to punitive damages, the Fourth Department briefly noted that the plaintiff’s allegations that the defendant “intentionally, willfully and wantonly withheld medical records and information from plaintiff in order to avoid the malpractice claim are sufficient to support the claim for punitive damages” (id. at 968).The defendant physician in that action subsequently moved for partial summary judgment dismissing the plaintiff’s causes of action to recover damages for fraud and gross negligence, and the claim for punitive damages. The Supreme Court granted the defendant’s motion, finding that the plaintiff had sustained no damages that were separate and distinct from those caused by the alleged malpractice. In Abraham v. Kosinski (305 AD2d 1091) (hereinafter Abraham II), the Fourth Department held that the defendant’s motion had been properly granted. With respect to the fraud cause of action, the Fourth Department noted that the record established that the plaintiff neither pursued ineffective or inappropriate treatment nor elected not to pursue appropriate treatment in reliance upon the alleged fraud (see id. at 1092). The Fourth Department further found that because the plaintiff relied on the same conduct of the defendant, namely, the allegedly fraudulent concealment of a bone scan report, as the basis for the cause of action alleging gross negligence, that cause of action had also been properly dismissed (see id.). The Fourth Department then added that “[i]n the absence of a separate cause of action for fraud or gross negligence, there is likewise no basis for an award of punitive damages and thus the court also properly dismissed that claim” (id.).In Marsh v. Arnot Ogden Med. Ctr. (91 AD3d 1070), the Appellate Division, Third Department, later relied upon Abraham I in support of the proposition that “[w]illful failure to disclose pertinent medical information may be sufficient to support punitive damages when undertaken to evade a malpractice claim” (id. at 1072). In Marsh, the decedent was mistakenly given an insulin-reducing medication that had not been prescribed for him. The plaintiff alleged, and medical records confirmed, that the decedent’s medical chart was not updated to reflect that mistaken administration of medicine until four months after the decedent’s death. Noting that no explanation for the delay had been offered, and no pretrial discovery had taken place, the Third Department concluded that dismissal of the punitive damages claim was premature where, as there, the party opposing the motion had not had an adequate opportunity to conduct discovery into issues in the moving party’s knowledge.On consideration of the above authority, we now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct. Thus, the Supreme Court did not err in submitting the issue of punitive damages to the jury.We reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original medical records did not contribute to causing Claudialee’s death. Of course, a demand for punitive damages possesses no viability absent its attachment to a substantive cause of action. But here, the jury found that Mercado committed malpractice in her treatment of the child. That Mercado destroyed the original records after Claudialee died does not mean that punitive damages were awarded for conduct unconnected to the malpractice. The award of compensatory damages for Mercado’s departure from the standard of care that was a substantial factor in causing injury that resulted in Claudialee’s death served as a foundation for the award of punitive damages for Mercado’s attempt to evade liability for that malpractice by destroying original records of her treatment of the child.We also reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original records did not prevent the plaintiff from successfully prosecuting this action. The fact that the plaintiff was able to prove the medical malpractice cause of action against Mercado, despite Mercado’s destruction of original records, should not insulate Mercado from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort. Indeed, it has been observed that “[i]f the act of altering and destroying records to avoid liability is to be tolerated in our society, we can think of no better way to encourage it than to hold that punitive damages are not available” in such circumstances (Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St 3d at 651, 635 NE2d at 343).Amicus curiae argues that there exist numerous adverse consequences, such as discipline by the Office of Professional Medical Conduct, for a physician who fails to maintain medical records in accordance with Education Law §6530(32), and that these consequences are sufficient to deter such conduct by physicians. Additionally, amicus curiae points out that spoliation sanctions may be imposed under appropriate circumstances. However, the possibility of other consequences, such as professional disciplinary action or spoliation sanctions, should not preclude medical professionals from being subject to punitive damages for altering or destroying medical records in an effort to evade potential medical malpractice liability. We note that in Whittlesey, the District Court pointed out that the New York State Board of Regents is empowered to bring disciplinary proceedings against doctors who fail to maintain accurate medical records, and concluded that “[t]his adequately protects plaintiffs from, and provides a mechanism to punish, doctors who seek to escape medical malpractice liability by altering records” (Whittlesey v. Espy, 1996 WL 689402, *1 n 4, 1996 US Dist LEXIS 17638, *1 n 4 [citations omitted]). However, the present case illustrates that the availability of disciplinary proceedings is not sufficient to protect plaintiffs from such conduct, since Mercado was clearly not deterred by the possibility of such disciplinary action.Legal Sufficiency_and Weight_of the_EvidenceWe next turn to Mercado’s contentions that the evidence was legally insufficient to support the jury’s award of punitive damages, and that the award of punitive damages was contrary to the weight of the evidence.“For a reviewing court to determine that a jury verdict is not supported by legally sufficient evidence, it must conclude that there is ‘simply no valid line of reasoning and permissible inferences’ by which the jury could have rationally reached its verdict ‘on the basis of the evidence presented at trial’” (Sokolik v. Pateman, 114 AD3d 839, 840, quoting Cohen v. Hallmark Cards, 45 NY2d 493, 499; see Szczerbiak v. Pilat, 90 NY2d 553, 556). Moreover, “a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Sokolik v. Pateman, 114 AD3d at 840; see Lolik v. Big v. Supermarkets, 86 NY2d 744, 746).Applying these standards, we determine that there was legally sufficient evidence to support the jury’s verdict on punitive damages, and, additionally, the jury’s verdict awarding punitive damages was not contrary to the weight of the evidence.It is undisputed that Mercado destroyed the original, handwritten records of two of the three occasions she treated Claudialee. At trial, Mercado testified that after receiving a letter from the plaintiff’s attorney, she typed up her handwritten or “scribble” notes of the three occasions she saw the child; she kept the handwritten record of the first visit with the child, considering it the “official registration form,” but threw out her handwritten records of the second and third visits. This trial testimony was at odds with Mercado’s deposition testimony to the effect that the typewritten record was made on the date of Claudialee’s first visit.The typewritten record of the October 31, 2009, visit included information not reflected in the handwritten record of that visit. The typewritten record of that visit indicated, “[n]o polyuria, no polydipsia.” The handwritten record did not indicate that Mercado asked about polyuria, excessive urination, or polydipsia, excessive thirst; excessive urination and excessive thirst both being diabetes symptoms. Further, it appears that a finding of acanthosis nigricans, which can be a sign of insulin resistance, was indicated in the typewritten record but not in the handwritten record.Further, there was a discrepancy regarding when the child was to return to see Mercado following the December 12, 2009, visit. The typewritten record of the December 12, 2009, visit indicated, “[n]ext visit to record random BG’s fasting and 2 hour post meal. TCB in 4 weeks.” However, the appointment card, which the child’s mother retained and which was admitted into evidence at trial, indicated that the child’s next appointment with Mercado was scheduled for February 13, 2010. Notably, a return visit four weeks from December 12, 2009, would have been prior to the child’s illness that began on January 21, 2010, and resulted in her death from diabetic ketoacidosis. Mercado offered no explanation for this discrepancy.Because of Mercado’s actions, the contents of the handwritten records documenting two of the three occasions Mercado treated the child cannot be proven. It was, however, proven that Mercado destroyed these original, handwritten records after receiving a letter from the plaintiff’s attorney. Further, it was proven that information was added to the typewritten record of the October 31, 2009, visit, and that there existed an important discrepancy, regarding when the child was to follow up with Mercado, between the typewritten record of the December 12, 2009, visit and the appointment card. Based on the trial evidence, there is a valid line of reasoning and permissible inferences by which the jury could have rationally reached its verdict on the issue of punitive damages, and, further, the jury could have reached its verdict awarding punitive damages by a fair interpretation of the evidence.Remaining IssuesWe are unpersuaded by Mercado’s contention that a new trial on the issue of punitive damages is warranted in the interest of justice on the ground that the plaintiff’s attorney made improper summation comments. Defense counsel did not timely object to the challenged comments or request curative instructions (see Reilly v. St. Charles Hosp. & Rehabilitation Ctr., 143 AD3d 692, 694; Frederic v. City of New York, 117 AD3d 899, 900). To the extent any alleged error was preserved for appellate review, reversal is not required on this ground.However, the punitive damages award is excessive. The United States Supreme Court has instructed courts reviewing punitive damages to consider three guideposts: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases” (State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 418; see BMW of North America, Inc. v. Gore, 517 US 559, 575; see also Solis-Vicuna v. Notias, 71 AD3d 868, 871). ”[I]n practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process” (State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US at 425). On consideration of the guideposts, the amount of punitive damages awarded is excessive to the extent indicated.Accordingly, the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the defendant Arlene B. Mercado which was to set aside the jury verdict on the issue of punitive damages as excessive to the extent of ordering a new trial as to punitive damages unless the plaintiff stipulated to a reduction of the principal sum of the punitive damages award from $7,500,000 to $1,200,000, and as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of punitive damages unless, within 30 days after service upon the plaintiff of a copy of this opinion and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the punitive damages award from the principal sum of $7,500,000 to the principal sum of $500,000; in the event that the plaintiff so stipulates, then the order, as so amended, is affirmed.HALL, AUSTIN and SGROI, JJ., concur.ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the defendant Arlene B. Mercado which was to set aside the jury verdict on the issue of punitive damages as excessive to the extent of ordering a new trial as to punitive damages unless the plaintiff stipulated to a reduction of the principal sum of the punitive damages award from $7,500,000 to $1,200,000; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of punitive damages unless, within 30 days after service upon the plaintiff of a copy of this opinion and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the punitive damages award from the principal sum of $7,500,000 to the principal sum of $500,000; in the event that the plaintiff so stipulates, then the order, as so amended, is affirmed, without costs or disbursements.By Rivera, J.P.; Hall, Roman and Christopher, JJ.PEOPLE, etc., res, v. Christina Sanabria, ap — (Ind. No. 5/07)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 June 17, 2008 (People v. Sanabria, 52 AD3d 743), affirming a judgment of the County Court, Dutchess County, rendered June 15, 2007.ORDERED that the application is granted and the decision and order of this Court dated June 17, 2008, is vacated; and it is further,ORDERED that the judgment is reversed, on the law, the plea of guilty is vacated, and the matter is remitted to the County Court, Dutchess County, for further proceedings on the indictment.Pursuant to the terms of the subject plea agreement, the defendant pleaded guilty to assault in the first degree and two counts of assault in the second degree in satisfaction of an indictment charging her with assault in the first degree, five counts of assault in the second degree, and endangering the welfare of a child, and the County Court imposed concurrent terms of imprisonment of 23 years for the assault in the first degree count, and 7 years for each of the assault in the second degree counts. During discussions regarding the People’s plea offer, the court initially advised the defendant that she faced a “total maximum [of] 60 years in state prison.” Although the court acknowledged that a “cumulative sentencing statute… would reduce that to probably between 30 and 40,” it later advised the defendant that “[i]f you are facing 60 years in state prison with all these counts of assault on a seven month old child then you need to discuss that offer very carefully with [defense counsel] and follow his advice.” After defense counsel advised the court that the defendant did not accept the People’s plea offer, the court told the defendant, “[t]hat’s fine. That’s what we do here. We do trials. A case like this I would almost rather have a trial than have a plea bargaining. If this is all true there is no [sentence] short of the maximum that’s appropriate that’s the problem with the case. If it isn’t true then the jury will so decide. That’s not up to me.” Later that afternoon, the defendant accepted the People’s plea offer.“In order to be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently” (People v. Rogers, 114 AD3d 707, 707). Although a court may properly comment during plea negotiations regarding a defendant’s sentencing exposure upon conviction after trial, it may not explicitly threaten to sentence a defendant to the maximum term upon conviction after trial (see People v. Licausi, 122 AD3d 771, 773; People v. Rogers, 114 AD3d at 707; People v. Santiago, 71 AD3d 703, 704; People v. Griffith, 80 AD2d 590, 590). Under the circumstances of this case, former appellate counsel was ineffective in failing to raise the issue that the defendant’s plea of guilty was coerced by the County Court’s comments (see People v. Turner, 5 NY3d 476, 481-483; People v. Morales, 108 AD3d 574, 575-576). Since the court’s remarks were impermissibly coercive, the defendant was entitled to vacatur of her plea of guilty.The defendant’s remaining contentions either are without merit or need not be reached in light of our determination.RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Hall, Roman and Christopher, JJ.PEOPLE, etc., res, v. Christina Sanabria, ap — (Ind. No. 5/07)Appeal by the defendant, by permission, from an order of the County Court, Dutchess County (Forman, J.), dated March 15, 2016, which, without a hearing, denied her motion pursuant to CPL 440.10 to vacate a judgment of the same court (Dolan, J.), rendered June 15, 2007, convicting her of assault in the first degree and assault in the second degree (two counts), upon her plea of guilty, and imposing sentence.ORDERED that the appeal from the order is dismissed as academic in light of our determination granting the defendant’s application for a writ of error coram nobis and reversing the judgment of conviction (see People v. Sanabria, __ AD3d __ [Appellate Division Docket No. 2007-06298; decided herewith]).RIVERA, J.P., HALL, ROMAN and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Roman, Cohen and Barros, JJ.PEOPLE, etc., res, v. Spencer Hernandez-Beltre, ap — (Ind. No. 1903/10)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered January 8, 2014, as amended January 14, 2014, convicting him of criminal sexual act in the first degree (two counts), rape in the first degree, attempted rape in the first degree, robbery in the second degree, assault in the second degree, sexual abuse in the first degree (two counts), unlawful imprisonment in the second degree, and incest in the third degree (three counts), after a nonjury trial, and imposing sentence.ORDERED that the judgment, as amended, is reversed, on the facts, and the matter is remitted to the Supreme Court, Queens County, for the issuance of an examination order pursuant to CPL 330.20, and further proceedings thereafter.In July 2010, the then-19-year-old defendant sexually assaulted and raped his mother. The defendant asserted the affirmative defense of lack of criminal responsibility by reason of mental disease or defect (Penal Law §40.15). After a nonjury trial, the Supreme Court determined that the defendant did not meet his burden of establishing the affirmative defense by a preponderance of the evidence, and convicted the defendant of criminal sexual act in the first degree (two counts), rape in the first degree, attempted rape in the first degree, robbery in the second degree, assault in the second degree, sexual abuse in the first degree (two counts), unlawful imprisonment in the second degree, and incest in the third degree (three counts).In support of his affirmative defense, the defendant relied upon, inter alia, the expert testimony of a board-certified forensic psychiatrist who has conducted thousands of forensic examinations over a career spanning more than 30 years. He evaluated the defendant, reviewed the defendant’s psychiatric history and records, and also reviewed witness accounts of the defendant’s behavior before, during, and after the incident. The defense expert opined that the defendant suffered from a psychotic disorder, and that because of such psychotic disorder, the defendant lacked the substantial capacity to know the nature and consequences of what he was doing, and lacked the substantial capacity to know or appreciate at the time of the incident that his conduct was wrong.To rebut the defense expert’s testimony, the People called a clinical neuropsychologist whose practice focused on the study and treatment of epilepsy, and patients suffering from concussions, stroke, and dementia. While the expert had testified in criminal proceedings on prior occasions, he acknowledged that he was not board-certified in forensic psychology. Upon performing his own evaluation of the defendant, and reviewing the defendant’s psychiatric records and witness accounts, the prosecution expert agreed with the defense expert that the defendant was under the influence of a psychotic disorder at the time of the incident, and that the symptoms of such psychotic disorder include loss of reality, hallucinations, delusions, impaired thinking, and impulsive behavior.The prosecution expert opined that the defendant’s psychotic disorder did not “materially affect his ability to know that he was performing a sexual assault on his own mother or his ability to know that doing such an act was wrong.” He opined that the defendant exhibited “goal-directed activity,” and that the defendant’s anger “contributed to this rape.” He stated that it was possible for someone to be “out of touch with reality and yet still have more than a surface knowledge that what they are doing is either against the law or against common morality.” He concluded that the defendant had the “capacity to understand the nature and consequences of his actions and to know that they’re wrong.”In contrast, the defense expert opined that the defendant had “some thought that what he was doing was wrong,” but that “in the context of his delusional beliefs, disorganized thinking, religious preoccupation, and his hallucinatory state… the thought resulted in no more than a surface awareness, without depth or emotional significance” (see generally People v. Adams, 26 NY2d 129). Although the defendant exhibited goal-directed behavior during the incident, the defense expert opined that, since the defendant was under the overwhelming influence of a delusion, he still lacked the substantial capacity to know the nature and consequences of the conduct and that it was wrong. The defense expert also disagreed with the prosecution expert that the defendant was motivated by anger toward his mother, as opposed to being under the overwhelming influence of a psychotic disorder.“Upon [a] defendant’s request, the Appellate Division must conduct a weight of the evidence review and, thus, a defendant will be given one appellate review of adverse factual findings” (People v. Joyner, 126 AD3d 1002, 1005 [internal quotation marks omitted]; see People v. Danielson, 9 NY3d 342, 348). A weight of the evidence review requires this Court to affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the trier of fact in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the trier of fact was justified in finding that guilt was proven beyond a reasonable doubt (see People v. Delamota, 18 NY3d 107, 116-117; People v. Danielson, 9 NY3d at 348; Matter of Shannel P., 137 AD3d 1039, 1041).In conducting our weight of the evidence review where a defendant relies solely upon the affirmative defense of mental disease or defect, we first determine whether a finding of not responsible by reason of mental disease or defect would have been reasonable. If we answer that question in the affirmative, then we must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions in order to decide whether the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence (see People v. Danielson, 9 NY3d at 348; People v. Joyner, 126 AD3d at 1005; People v. Curry, 112 AD3d 843, 844; see also Penal Law §§25.00[2]; 40.15; People v. Kohl, 72 NY2d 191).Given the conflicting expert opinions, as well as the witness testimony and psychiatric records, a finding of not responsible by reason of mental disease or defect would have been reasonable. Weighing the opinion of the defense expert, who was an experienced forensic psychiatrist, against the opinion of the prosecution expert, a clinical neuropsychologist with limited experience in forensics, the defense expert’s opinion was more convincing, and entitled to more weight. The defense expert’s opinion better accounted for the witnesses’ testimony regarding their observations of the defendant’s increasingly bizarre behavior and onset of mental illness which began to exhibit itself just weeks before the incident, and continued during and after the incident until the defendant was hospitalized for psychiatric treatment. The defense expert’s opinion was further corroborated by the defendant’s subsequent psychiatric diagnosis and history. Contrary to the Supreme Court’s determination, we find that the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence.In light of our determination, we need not reach the defendant’s remaining contentions.Accordingly, we reverse the judgment, as amended, and remit the matter to the Supreme Court, Queens County, for the issuance of an examination order pursuant to CPL 330.20, and further proceedings thereafter.HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.By Austin, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.Lenny Gullo ap, v. Bellhaven Center for Geriatric and Rehabilitative Care, Inc., etc., def, Mark Shapiro, etc., res — (Index No. 25986/09)Joseph C. Stroble, Sayville, NY, for appellants.Gabriele & Marano, LLP, Garden City, NY (Melissa Goldberg of counsel), for respondent.Appeal from a judgment of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), entered July 1, 2015. The judgment, upon an order of that court dated May 15, 2015, is in favor of the defendant Mark Shapiro dismissing the amended complaint insofar as asserted against him.The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512[a]).ORDERED that the judgment is affirmed, with costs.The plaintiff Lenny Gullo (hereinafter Gullo), and his wife and daughter suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice, alleging, among other things, that the defendant Mark Shapiro, an internist and Gullo’s former primary care physician, failed to timely diagnose and treat Gullo for hepatitis C. Shapiro moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against him. The Supreme Court granted that branch of Shapiro’s motion, and the plaintiffs appeal.In order to impose liability upon a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries (see Bowe v. Brooklyn United Methodist Church Home, 150 AD3d 1067, 1067; Berthen v. Bania, 121 AD3d 732; Stukas v. Streiter, 83 AD3d 18, 23). A defendant physician seeking summary judgment in a malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries (see Berthen v. Bania, 121 AD3d at 732; Swanson v. Raju, 95 AD3d 1105, 1106). ”In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden” (Bowe v. Brooklyn United Methodist Church Home, 150 AD3d at 1068; see Feuer v. Ng, 136 AD3d 704, 706).Here, Shapiro established his prima facie entitlement to judgment as a matter of law by submitting an affirmation of his medical expert, who addressed the specific allegations of malpractice set forth in the plaintiffs’ bills of particulars. The expert concluded that Shapiro did not depart from the applicable standard of care and that, in any event, the alleged departures were not a proximate cause of any alleged injuries. In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. Where, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion” (DiLorenzo v. Zaso, 148 AD3d 1111, 1113 [internal quotation marks omitted]; see Tsimbler v. Fell, 123 AD3d 1009, 1009-1010; Feuer v. Ng, 136 AD3d at 707). The plaintiffs’ expert failed to provide such foundation. Moreover, even assuming that the proper foundation had been laid, the expert’s affidavit was insufficient to raise a triable issue of fact as to whether Shapiro’s alleged departures from the standard of care proximately caused Gullo’s alleged injuries. The affidavit was conclusory and speculative, and failed to address the specific assertions of Shapiro’s expert (see Feuer v. Ng, 136 AD3d at 707; Brinkley v. Nassau Health Care Corp., 120 AD3d 1287, 1289-1290). Accordingly, the Supreme Court properly granted that branch of Shapiro’s motion which was for summary judgment dismissing the amended complaint insofar as asserted against him.Shapiro’s remaining contentions are either not properly before this Court or without merit.AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.MATTER of Natalia J. (Anonymous). Westchester County Department of Social Services, res; Clarence T. (Anonymous), ap — (Proceeding No. 1)MATTER of Kaneilia T. (Anonymous). Westchester County Department of Social Services, res; Clarence T. (Anonymous), ap — (Proceeding No. 2)MATTER of Fatima A. (Anonymous), a/k/a Fatima J. (Anonymous). Westchester County Department of Social Services, res; Clarence T. (Anonymous), ap — (Proceeding No. 3) (Docket Nos. N-4235-13, N-4238-13, N-4239-13)Appeals from (1) an order of the Family Court, Westchester County (Arlene Katz, J.), dated August 11, 2016, (2) a permanency hearing order of that court dated August 11, 2016, and (3) an order of disposition of that court dated August 11, 2016. The first order dated August 11, 2016, granted, without a hearing, the petitioner’s motion pursuant to Family Court Act §1039-b for a finding that reasonable efforts to reunite Clarence T. with the child Kaneilia T. are no longer required. The permanency hearing order, insofar as appealed from, directed Clarence T. to comply with full stay-away orders of protection previously issued against him on behalf of the children Kaneilia T. and Fatima A., a/k/a Fatima J. The order of disposition directed Clarence T. to comply with the full stay-away orders of protection previously issued against him on behalf of the children Kaneilia T. and Fatima A., a/k/a Fatima J.ORDERED that the order and the order of disposition are affirmed, without costs or disbursements; and it is further,ORDERED that the permanency hearing order is affirmed insofar as appealed from, without costs or disbursements.The appellant (hereinafter the father) is the biological father of the subject children Natalia J. and Kaneilia T. and a person who was legally responsible for the subject child Fatima A., a/k/a Fatima J. On March 14, 2013, Natalia died from a head injury caused by blunt force trauma. Kaneilia and Fatima were immediately placed in the custody of the petitioner, Westchester County Department of Social Services (hereinafter DSS). DSS filed petitions pursuant to Family Court Act article 10, alleging that Natalia was abused, neglected, and severely abused, and that Kaneilia and Fatima were derivatively abused and neglected. In April 2015, the father pleaded guilty to manslaughter in the second degree for recklessly causing Natalia’s death (see People v. Thomas, 150 AD3d 770). Based on the father’s plea, DSS moved for summary judgment on the petitions. The Family Court granted the motion. On a prior appeal, this Court affirmed the Family Court’s order granting DSS’s motion (see Matter of Natalia J. [Clarence T.], 145 AD3d 889).While the prior appeal was pending, Kaneilia and Fatima were released to their mother’s custody for a trial discharge, and DSS moved pursuant to Family Court Act §1039-b for a finding that reasonable efforts to reunite the father with Kaneilia are no longer required. DSS did not make a motion pursuant to Family Court Act §1039-b on behalf of Fatima because she is not the father’s biological child. In an order dated August 11, 2016, the Family Court granted DSS’s motion without conducting a hearing. In a permanency hearing order dated August 11, 2016, the court, inter alia, directed the father to comply with full stay-away orders of protection previously issued against him on behalf of Kaneilia and Fatima. In an order of disposition dated August 11, 2016, the court directed the father to comply with the orders of protection. The father appeals from these orders.The Family Court properly granted DSS’s motion pursuant to Family Court Act §1039-b for a finding that reasonable efforts to reunite the father with Kaneilia are no longer required. Pursuant to Family Court Act §1039-b, the Family Court may relieve an agency of its obligation to make diligent efforts to reunite a parent and child under certain circumstances (see Matter of Alexandryia M.B. [Heather C.], 130 AD3d 1022, 1022). These circumstances include where the parent has been convicted of manslaughter in the second degree as defined in Penal Law §125.15, the victim was another child of the parent (see Family Ct Act §1039-b[b][2][ii]; Matter of Angela N.L. [Ying L.], 153 AD3d 1408, 1410, 1412), and the parent fails to demonstrate that, despite the conviction, “reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future” (Family Ct Act §1039-b[b]). Here, upon DSS presenting proof of the father’s conviction of manslaughter in the second degree based upon his actions in causing the death of Natalia, the father failed to meet his burden of establishing that reasonable efforts would be in the best interests of Kaneilia, not contrary to her health and safety, and would likely result in their reunification in the foreseeable future (see Matter of Angela N.L. [Ying L.], 153 AD3d at 1412; Matter of Keishaun P. [Tyrone P.], 140 AD3d 1171, 1173; Matter of Hezekiah L.J. [Michael J.], 133 AD3d 754, 755; Matter of Skyler C. [Satima C.], 106 AD3d 816, 818). Further, contrary to the father’s contention, the court did not err in deciding the motion without a hearing inasmuch as his answering papers did not establish that any genuine issue of fact existed (see Matter of Alexandryia M.B. [Heather C.], 130 AD3d at 1022).The father’s remaining contention is without merit.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Abraham Angel Vasquez, a/k/a Juan Velazquez, ap — (Ind. No. 3293/10)Paul Skip Laisure, New York, NY (A. Alexander Donn of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Arieh Schulman of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered December 1, 2011, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that he was deprived of a fair trial by the admission of certain evidence regarding whether he was a member of a gang is unpreserved for appellate review (see CPL 470.05[2]; People v. Green, 110 AD3d 825, 826). In any event, any error in admitting such evidence was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that any error contributed to his convictions (see People v. Crimmins, 36 NY2d 230, 240-241).The defendant’s contention that he was unfairly prejudiced by several remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2]). In any event, the challenged remarks were proper responses to arguments made by defense counsel on summation or fair comment on the evidence (see People v. Halm, 81 NY2d 819, 821; People v. Adamson, 131 AD3d 701, 703).Further, defense counsel’s failure to move to redact the portions of the defendant’s videotaped interview relating to the defendant’s tattoos and to object to the prosecutor’s remarks made during summation did not constitute ineffective assistance of counsel (see People v. Benevento, 91 NY2d 708, 713-714; People v. Ramirez, 146 AD3d 987, 988; People v. Manigat, 136 AD3d 614, 616; People v. Ervin, 118 AD3d 910, 912).Finally, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.Kaloakas Management Corp. ap, v. Lawrence & Walsh, P.C. res — (Index No. 11188/08)Andrew Lavoott Bluestone, New York, NY, for appellants.Furman Kornfeld & Brennan LLP, New York, NY (Andrew S. Kowlowitz and Florence N. Lishansky of counsel), for respondents.In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Walker, J.), dated December 23, 2014, as granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging legal malpractice.ORDERED that the order is affirmed insofar as appealed from, with costs.The defendant attorneys represented the plaintiffs in connection with the plaintiffs’ dispute with a contractor over renovations at the plaintiffs’ diner. The dispute proceeded to arbitration, where the plaintiffs were unsuccessful (see Matter of DeRaffele Mfg. Co., Inc. v. Kaloakas Mgt. Corp., 48 AD3d 807). Subsequently, the plaintiffs commenced this action alleging, among other things, that the defendants committed legal malpractice in representing them in their dispute with the contractor. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal from so much of the order as granted that branch of the motion which was for summary judgment dismissing the cause of action alleging legal malpractice.A plaintiff in an action alleging legal malpractice must prove that the defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Ragunandan v. Donado, 150 AD3d 1289, 1290). To establish proximate causation, the plaintiff must show that it would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). In the context of a defendant’s motion for summary judgment in a legal malpractice action, the defendant’s burden is to establish, prima facie, that the plaintiff is unable to prove that the defendant failed to exercise the requisite skill and knowledge, or that the plaintiff is unable to prove that the defendant’s alleged failure proximately caused the plaintiff to suffer damages (see Ragunandan v. Donado, 150 AD3d at 1290). If the moving defendant satisfies its prima facie burden, the burden shifts to the plaintiff to rebut the prima facie showing (see id.; Montero v. Cohen, 104 AD3d 654, 655; cf. Stukas v. Streiter, 83 AD3d 18, 23-24).Here, the defendants met their burden by establishing, prima facie, that they did not fail to exercise the requisite skill and knowledge in their representation of the plaintiffs. The defendants also established, prima facie, that, in any event, their alleged negligence did not proximately cause the plaintiffs’ alleged damages. In opposition, the plaintiffs failed to raise a triable issue of fact (see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 AD3d 1168, 1168), since their opposition consisted entirely of speculation and conclusory assertions (see Financial Servs. Veh. Trust v. Saad, 137 AD3d 849, 853; Cusimano v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542, 542; Holschauer v. Fisher, 5 AD3d 553, 554). Accordingly, the Supreme Court correctly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging legal malpractice.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.MATTER of Demetrious L. K. (Anonymous). Suffolk County Department of Social Services, res; James K. (Anonymous), ap — (Docket No. B-5474-16)Appeals from two orders of fact-finding and disposition of the Family Court, Suffolk County (Caren Loguercio, J.), both dated September 8, 2016. The orders, after fact-finding and dispositional hearings, and upon the father’s failure to appear at the hearings, found that the father permanently neglected the subject child, terminated his parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption.ORDERED that the appeals are dismissed, without costs or disbursements, except insofar as they bring up for review the denial of the father’s requests for an adjournment (see CPLR 5511; Katz v. Katz, 68 AD2d 536); and it is further,ORDERED that the orders of fact-finding and disposition are affirmed insofar as reviewed, without costs or disbursements.The petitioner commenced this proceeding to terminate the father’s parental rights to the subject child. The father failed to appear at a fact-finding hearing, and his attorney’s requests for an adjournment were denied. Following the fact-finding hearing and a dispositional hearing, at which the father also failed to appear, the Family Court found that the father permanently neglected the child, terminated his parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption. The father appeals.Where, as here, an order is made upon the appellant’s default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v. Avraam G., 27 AD3d 754, 755 [internal quotation marks omitted]; see James v. Powell, 19 NY2d 249, 256 n 3; Matter of Ca’leb R.D. [Mary D.S.], 121 AD3d 890, 892; Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907). Accordingly, here, review is limited to the denial of the father’s requests for an adjournment, which were made by his attorney prior to and during the fact-finding hearing (see Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907; Matter of Tripp, 101 AD3d 1137; Matter of Paulino v. Camacho, 36 AD3d 821).“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907). ”In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v. Embro, 31 AD3d 651, 651; see        Matter of Tripp, 101 AD3d 1137). Here, in light of, inter alia, the untimely requests for an adjournment, the lack of notice to the court and counsel, the lack of a reasonable explanation for the father’s absences, and the merits of the proceeding, the Family Court providently exercised its discretion in denying the father’s requests for an adjournment (see Matter of Ca’leb R.D. [Mary D.S.], 121 AD3d at 892; see Matter of Tripp, 101 AD3d at 1138-1139; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d 657; Matter of Sanaia L. [Corey W.], 75 AD3d 554; Matter of Dakota B. [Brigitta B.], 73 AD3d 763; Matter of Amber Megan D., 54 AD3d 338). Moreover, under the circumstances of this case, the father was not deprived of due process (see Matter of Sean P.H. [Rosemarie H.], 122 AD3d 850, 850-851; Matter of Lillian D.L., 29 AD3d 583, 584).DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.MATTER of Maurice R. (Anonymous). Administration for Childrens Services, res; Darlene R. (Anonymous), ap — (Docket No. N-16925-14)Appeal from an order of fact-finding and disposition of the Family Court, Queens County (Connie Gonzalez, J.), dated November 22, 2016. The order, insofar as appealed from, after a fact-finding hearing, found that the mother neglected the subject child.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.In May 2014, the then 15-year-old subject child, who had been diagnosed with attention deficit hyperactivity disorder, autism, and bipolar disorder, exhibited suicidal ideations at school and was hospitalized for approximately one month. His discharge instructions from the hospital included therapy and medication. The mother, however, failed to follow up with those instructions and, in early September 2014, the child again exhibited suicidal ideations, stating that he had thoughts about wanting to jump off the Van Wyck Expressway. The petitioner’s caseworker, who had recently become involved in the case, advised the mother to take the child to the hospital for a psychiatric evaluation, and the mother agreed to do so, but instead she took the child home. The following day, the caseworker herself took the child to the hospital, and he was admitted and treated as an in-patient for several weeks.The petitioner filed a neglect petition against the mother. Following a fact-finding hearing, the Family Court found that the mother had neglected the child. The mother appeals from the neglect finding.Under the Family Court Act, a “neglected child” is defined, in part, as a child “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the] parent… to exercise a minimum degree of care… in supplying the child with adequate… medical… care… or 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][A], [B]). ”To find medical neglect, there must be a determination that the parent did not seek or accept medical care, and that such failure placed the child in imminent danger of becoming impaired” (Matter of Mia G. [William B.], 146 AD3d 882, 883 [internal quotation marks omitted]). ”[T]he most significant factor in determining whether a child is being deprived of adequate medical care… is whether the parents have provided an acceptable course of medical treatment for their child in light of all the surrounding circumstances” (id. at 883 [internal quotation marks omitted]). ”A parent’s unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child’s emotional health may support a finding of neglect” (Matter of Jaelin L. [Kimrenee C.], 126 AD3d 795, 796). Additionally, a parent’s failure to follow treatment recommendations for a child upon that child’s discharge from a psychiatric hospitalization can constitute medical neglect (see Matter of Dayshaun W. [Jasmine G.], 133 AD3d 1347, 1348).Here, the Family Court properly found, by a preponderance of the evidence, that the mother neglected the child because, for a three-month period after the child’s May 2014 hospitalization, the mother did not take the child for therapy that he needed or ensure that he took his medication, and she failed to take the child to the emergency room as instructed after the child exhibited suicidal ideations for a second time in early September 2014.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.Vyrtle Trucking Corp., ap, v. James M. Browne, a/k/a James Browne, res — (Index No. 15075/10)In an action to recover damages for injury to property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Walker, J.), dated February 16, 2016, which denied its motion for leave to renew its opposition to the defendant’s motion for summary judgment dismissing the complaint, which had been granted by a decision and order of this Court dated March 13, 2012.ORDERED that the order is affirmed, with costs.A truck owned by the plaintiff allegedly was damaged when a vehicle owned by the defendant collided with it. The plaintiff commenced this action against the defendant to recover damages for injury to property. The defendant moved for summary judgment dismissing the complaint on the ground that, at the time of the accident, his vehicle was being operated by an unauthorized driver who had stolen the vehicle. The Supreme Court denied the motion. In a decision and order dated March 13, 2012, this Court reversed and granted the motion (see Vyrtle Trucking Corp. v. Browne, 93 AD3d 716). Three years later, the plaintiff moved in the Supreme Court for leave to renew its opposition to the defendant’s motion for summary judgment, relying on a photograph taken by the defendant’s insurance company that depicted a key in the ignition of the vehicle, and an affidavit from a mechanic opining that this was the original key to the vehicle. The Supreme Court denied the renewal motion, and the plaintiff appeals.A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]). The plaintiff demonstrated reasonable justification for failing to present the photograph and affidavit on the defendant’s prior motion for summary judgment by establishing that the photograph, on which the affidavit relied, was not served upon it by the defendant until after the motion was made. However, on a postappeal motion to renew, the movant “bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty” (Levitt v. County of Suffolk, 166 AD2d 421, 423; see Derby v. Bitan, 112 AD3d 881, 882; Abrams v. Berelson, 94 AD3d 782, 784; Andrews v. New York City Hous. Auth., 90 AD3d 962, 963; Estate of Essig v. 5670 58 St. Holding Corp., 66 AD3d 822). Here, the photograph was obtained by the plaintiff in January 2012, and the affidavit was obtained in January 2014. Yet, the plaintiff’s renewal motion was not made until February 2015. Under these circumstances, the plaintiff failed to meet its heavy burden of showing due diligence in presenting the new evidence to the Supreme Court (see Abrams v. Berelson, 94 AD3d at 784; Levitt v. County of Suffolk, 166 AD2d at 422-423; see also Andrews v. New York City Hous. Auth., 90 AD3d at 962).In any event, the new facts would not have changed the prior determination. On the prior motion, the plaintiff presented evidence that there was a key in the ignition at the time of the accident, but this Court concluded that the plaintiff had nevertheless failed to raise a triable issue of fact as to whether the defendant violated Vehicle and Traffic Law §1210(a), which prohibits a driver from leaving a vehicle unattended without removing the key. Further evidence in the form of a photograph would not have changed that determination. Moreover, there was no evidence as to when the photograph was taken, and, indeed, there was evidence that it may have been taken after the defendant was asked by his insurance company to provide keys to the vehicle. Finally, to the extent that the photograph may have been taken after the key was provided by the defendant, the affidavit concluding, based upon the photograph, that the key depicted therein was the original key was irrelevant, and, to the extent that the photograph may have been taken before the key was provided by the defendant, the affidavit consisted of mere speculation and conjecture insufficient to raise a triable issue of fact (see generally Latuso v. Maresca, 150 AD3d 712, 713).Accordingly, the Supreme Court properly denied the plaintiff’s motion for leave to renew its opposition to the defendant’s summary judgment motion.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Bank of New York Mellon, etc., res, v. Eleanor Zavolunov, appellant def — (Index No. 503892/14)Appeal from an order of the Supreme Court, Kings County (Graham, J.), entered December 21, 2015. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were to extend the time to move for summary judgment, for summary judgment on the complaint insofar as asserted against the defendant Eleanor Zavolunov, and for an order of reference.ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Eleanor Zavolunov and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Eleanor Zavolunov.The plaintiff commenced this action against the defendant Eleanor Zavolunov (hereinafter the defendant), among others, to foreclose a mortgage on certain real property in Brooklyn. The defendant interposed an answer asserting various affirmative defenses, including lack of standing. Thereafter, the plaintiff moved, inter alia, for an extension of time to move for summary judgment, for summary judgment on the complaint insofar as asserted against the defendant, and for an order of reference. The defendant opposed the motion, arguing that the motion was untimely under NY Kings County Supreme Court Uniform Civil Term Rules Pt. C, Rule 6. The defendant asserted, in the alternative, that the plaintiff failed to eliminate triable issues of fact as to its standing to commence the action, and failed to demonstrate its strict compliance with RPAPL 1304. The Supreme Court, inter alia, granted those branches of the plaintiff’s motion, and the defendant appeals.Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to extend the time to move for summary judgment, as the plaintiff demonstrated good cause for making the motion more than 60 days after the filing of the note of issue, as required by NY Kings County Supreme Court Uniform Civil Term Rules Pt. C, Rule 6 (see Popalardo v. Marino, 83 AD3d 1029, 1030; Ramos v. Triboro Coach Corp., 31 AD3d 625; see also DeFilippo v. Miller, 106 AD3d 770).Nevertheless, the Supreme Court erred in granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. ”Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689; see Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 684). Furthermore, where the plaintiff in a residential foreclosure action alleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, a plaintiff moving for summary judgment must “prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304″ (Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106).RPAPL 1304(1), which applies to home loans, 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.” The statute sets forth the requirements for the content of such notice (see id.), and 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 and to the subject residence (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 at 106; see Citibank, N.A. v. Wood, 150 AD3d 813, 814; Flagstar Bank, FSB v. Damaro, 145 AD3d 858, 860).Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 (see M&T Bank v. Joseph, 152 AD3d 579; CitiMortgage, Inc. v. Pappas, 147 AD3d 900; Bank of N.Y. Mellon v. Aquino, 131 AD3d 1186, 1186; Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909, 910). In moving for summary judgment, the plaintiff submitted the affidavit of Jason Ussery, a representative of its loan servicer, who stated that “[a]t least 90 days prior to the commencement of the action, notice was sent to Defendant by certified mail and first class mail to the last known address of the Defendant and, if different, to the residence that is the subject of the mortgage.” Ussery annexed copies of the 90-day notices mailed to the defendant, all of which contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service (see Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049). Moreover, Ussery did not make the requisite showing that he 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” (id. at 1050-1051; see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890; Citibank, N.A. v. Wood, 150 AD3d 813; CitiMortgage, Inc. v. Pappas, 147 AD3d at 901).Since the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med Ctr., 64 NY2d 851, 853).CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.HSBC Bank USA, National Association, etc., res, v. Pansy N. Cooper, appellant def — (Index No. 7635/13)In an action to foreclose a mortgage, the defendant Pansy N. Cooper appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Siegal, J.), dated July 8, 2015, as granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against her and for an order of reference.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for leave to enter a default judgment against the appellant and for an order of reference are denied, with leave to renew upon proper papers.The plaintiff commenced this action to foreclose a mortgage against the defendant Pansy N. Cooper and other defendants. Cooper failed to timely answer the complaint, but subsequently moved pursuant to CPLR 3012(d) to compel the plaintiff to accept her late answer. The plaintiff opposed Cooper’s motion.While Cooper’s motion to compel the plaintiff to accept her late answer was pending and undecided, the plaintiff moved, inter alia, for leave to enter a default judgment against Cooper and for an order of reference. Cooper opposed the motion, arguing that the plaintiff lacked standing to maintain this action.Subsequently, the Supreme Court denied Cooper’s motion to compel the plaintiff to accept her late answer, finding that she failed to show a reasonable excuse for the delay. Thereafter, in the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff’s motion which were for leave to enter a default judgment against Cooper and for an order of reference. Cooper appeals.As a threshold matter, Cooper’s contention that the Supreme Court erred in denying her motion to compel the plaintiff to accept her late answer is not properly before the Court on this appeal, as the denial of that motion was the subject of a separate order from which no appeal was taken (see Matter of Miedema v. Miedema, 144 AD3d 803, 804).“Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an affidavit made by the party“(HSBC Bank USA, N.A. v. Betts, 67 AD3d 735, 736 [internal quotation marks omitted; emphasis added]). Here, the plaintiff submitted an affidavit of merit executed by the Vice President of Loan Documentation for the plaintiff’s purported “servicer.” However, there is no evidence in the record demonstrating that the Vice President of Loan Documentation had the authority to act on behalf of the plaintiff. Under such circumstances, the Supreme Court should have denied those branches of the plaintiff’s motion which were for leave to enter a default judgment against Cooper and for an order of reference, with leave to renew upon proper papers (see HSBC Bank USA, N.A. v. Betts, 67 AD3d at 736; cf. US Bank N.A. v. Louis, 148 AD3d 758, 758-759; Deutsche Bank Natl. Trust Co. v. Patrick, 136 AD3d 970, 971; Bayview Loan Servicing, LLC v. Bernard, 130 AD3d 850, 850; US Bank N.A. v. Poku, 118 AD3d 980, 981).RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.MATTER of Christopher Brocato, etc. ap, v. Frank Tinari, etc. respondents- respondents res — (Index No. 9133/16)In a hybrid proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents Frank Tinari and Executive Committee of the Suffolk County Committee of the Conservative Party of New York State from filling certain vacancies in the Suffolk County Committee of the Conservative Party of New York State, and action for a judgment declaring that those respondents are not authorized to fill the vacancies, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Pitts, J.), dated September 23, 2016, which denied the petition and declared that the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State has the authority to fill the subject vacancies in the Suffolk County Committee of the Conservative Party of New York State.ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and it is declared that the respondents Frank Tinari and Executive Committee of the Suffolk County Committee of the Conservative Party of New York State do not have the authority to fill the subject vacancies in the Suffolk County Committee of the Conservative Party of New York State.On September 13, 2016, a primary election was held in which voters registered in the Conservative Party of New York State (hereinafter the Conservative Party) elected members to the respondent Suffolk County Committee of the Conservative Party of New York State (hereinafter the 2016 County Committee). Pursuant to the rules of the Conservative Party, an organizational meeting was required to be held within 20 days of the election, pursuant to which the 2016 County Committee was required to elect a new Executive Committee of the Suffolk County Committee of the Conservative Party of New York State (hereinafter the 2016 Executive Committee).Although new members of the 2016 County Committee were elected in the primary election, membership vacancies remained in the 2016 County Committee due to tie votes or no votes in the subject contested election districts. On September 16, 2016, the respondent Frank Tinari, who was the Chairman of the Executive Committee that was formed in 2014 (hereinafter the 2014 Executive Committee), issued a notice for a meeting of the 2014 Executive Committee for the purpose of filling the County Committee membership vacancies for the subject election districts. This meeting was scheduled for September 23, 2016, which was before the scheduled date of the 2016 County Committee’s organizational meeting in which the 2016 County Committee would, among other things, vote for the 2016 Executive Committee. On September 21, 2016, before the organizational meeting, the petitioners commenced this proceeding to prohibit the 2014 Executive Committee from filling the vacancies, and sought a judgment declaring that the 2014 Executive Committee did not have authority to fill vacancies in the 2016 County Committee during the period after the primary election and before the organizational meeting. Frank Tinari, the 2014 County Committee (that is, the County Committee that was formed in 2014), and the 2014 Executive Committee (hereinafter collectively the respondents) opposed and sought to dismiss the petition. The Supreme Court denied the petition and declared that the 2014 Executive Committee “has authority to fill the committee positions of all the enumerated districts.”Contrary to the Supreme Court’s determination, Election Law §6-148 does not confer authority upon the Executive Committee to fill vacancies in the county committee. Rather, that section relates to filling vacancies in designations and nominations of candidates, not members of a political party’s county committee. The filling of vacancies in a political party’s county committee is governed by Election Law §2-118, which provides, in pertinent part, that, in the case of a failure to elect a member of the committee, the vacancy created thereby shall be filled by the remaining members of the committee. Therefore, only the 2016 County Committee had the authority to fill the subject vacancies.With the election of the 2016 County Committee in the primary election, the 2014 County Committee had no further official authority, and no rule of the 2014 County Committee could extend the authority of its executive committee to continue to exercise functions in substantial matters after the members of the 2016 County Committee had been elected (see Matter of Torchin v. Cohen, 286 NY 544; Matter of Mazur v. Kelly, 170 AD2d 1037, 1038; Matter of Bauman v. Fusco, 21 AD2d 470, 472;). The filling of vacancies for the 2016 County Committee was a “substantial matter,” and therefore the actions of the 2014 Executive Committee in filling vacancies in the 2016 County Committee were improper (see Matter of Mazur v. Kelly, 170 AD2d at 1038).Moreover, contrary to the respondents’ contentions, the Rules and Regulations of the Suffolk County Committee of the Conservative Party of New York State, Article II, Section 3, do not authorize the 2014 Executive Committee to fill the subject vacancies in the 2016 County Committee. Those rules are consistent with Election Law §2-118 and provide, in pertinent part, that “[a]ny vacancy in the membership of the County Committee… caused by failure to elect a member, shall be filled by the remaining members of such County Committee.” The party rules contain an exception that allows the Executive Committee to fill vacancies when the County Committee is “not in session.” However, to allow the 2014 Executive Committee to rely on this exception so as to fill vacancies during the period after the primary election in 2016 and before the mandated organizational meeting violates the express terms of Election Law §2-118 (see Matter of Donnelly v. Curcio, 284 AD2d 460, 460-461), improperly allows the exception to swallow the general rule, which only permits the remaining members of the County Committee to fill such vacancies, undermines the election results of the 2016 primary election, and is inconsistent with case law limiting the authority of the 2014 Executive Committee during the period after the primary election and before the organizational meeting (see Matter of Mazur v. Kelly, 170 AD2d at 1038).Accordingly, the Supreme Court should have granted the petition and declared that Frank Tinari and the 2014 Executive Committee do not have the authority to fill the subject vacancies in the 2016 County Committee.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Maurice McArthur, ap — (Ind. No. 1451/14)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered April 28, 2015, convicting him of assault in the second degree (two counts), unlawful fleeing a police officer in a motor vehicle in the third degree, reckless endangerment in the second degree, reckless driving, obstructing governmental administration in the second degree, resisting arrest, leaving the scene of an incident without reporting, and aggravated unlicensed operation of a motor vehicle in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt of two counts of assault in the second degree (Penal Law §120.05[3]), including the element of physical injury (Penal Law §10.00[9]), beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those two counts was not against the weight of the evidence.The defendant contends that certain remarks made by the prosecutor during summation deprived him of a fair trial. A prosecutor has “broad latitude during summation, particularly when responding to the defense counsel’s summation” (People v. Cariola, 276 AD2d 800, 800, citing People v. Galloway, 54 NY2d 396; see People v. Rhodes, 11 AD3d 487, 488). Here, most of the prosecutor’s remarks were either fair comment on the evidence presented, fair response to the defendant’s summation, or permissible rhetorical comment (see People v. Pearson, 29 AD3d 711; People v. Garner, 27 AD3d 764; People v. Collins, 12 AD3d 33; cf. People v. Ashwal, 39 NY2d 105; People v. Smith, 28 AD3d 688, 689; People v. Lyking, 147 AD2d 504, 504-505). To the extent that any of the remaining challenged remarks were improper, their impact was alleviated by the Supreme Court’s curative instructions (see People v. Baker, 14 NY3d 266, 273-274; People v. Arce, 42 NY2d 179, 187; People v. Ashwal, 39 NY2d at 111; People v. Daley, 50 AD3d 1051; People v. Williams, 14 AD3d 519), and those comments did not deprive the defendant of a fair trial. Further, any other error in this regard was harmless, as the evidence of the defendant’s guilt was overwhelming, and there is no significant probability that any error contributed to the defendant’s convictions (see People v. Crimmins, 36 NY2d 230, 241-242).The defendant’s remaining contention is without merit.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.U.S. Bank National Association, etc., res, v. Miguel Henry, etc., appellant def — (Index No. 12556/13)In an action to foreclose a mortgage, the defendant Miguel Henry appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Nassau County (Adams, J.), entered August 6, 2015, as, in effect, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and for an order of reference, and (2) so much of an order of the same court entered August 7, 2015, as, in effect, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and for an order of reference, and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.ORDERED that the appeal from so much of the order entered August 6, 2015, as, in effect, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Miguel Henry, to strike his answer, and for an order of reference, is dismissed, as those portions of that order were superseded by the order entered August 7, 2015; and it is further,ORDERED that the order entered August 7, 2015, is reversed insofar as appealed from, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Miguel Henry, to strike his answer, and for an order of reference are denied, and that defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,ORDERED that one bill of costs is awarded to the appellant.In November 2005, the defendant Miguel Henry (hereinafter the defendant) executed a note secured by a mortgage on residential property located in East Meadow, Nassau County. In September 2008, the defendant entered into a loan modification agreement, in which he agreed to amend and supplement the note and mortgage, and to establish a new principal balance. In October 2013, the plaintiff commenced this mortgage foreclosure action against the defendant and others, alleging in its complaint that the defendant defaulted on his mortgage obligations and that it complied with RPAPL 1304. In his answer, the defendant asserted several affirmative defenses, including that the plaintiff lacked standing and failed to comply with RPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him. In an order entered August 7, 2015, the Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion.The defendant appeals.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (U.S. Bank N.A. v. Sabloff, 153 AD3d 879, 880 [internal quotation marks omitted]; see Bank of Am., N.A. v. DeNardo, 151 AD3d 1008). Where, as here, the plaintiff’s standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753). A plaintiff establishes its standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 684). ”Either a written assignment of the underlying note or the physical delivery of the note… is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank, N.A. v. Collymore, 68 AD3d at 754; see Deutsche Bank Natl. Trust Co. v. Weiss, 133 AD3d 704, 705; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 650).Here, the plaintiff demonstrated, prima facie, that it was a holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, 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; Wells Fargo Bank, N.A. v. Thomas, 150 AD3d 1312; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861; Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866; JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643; cf. Deutsche Bank Natl. Trust Co. v. Webster, 142 AD3d 636). Contrary to the defendant’s contention, there is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (see Deutsche Bank Natl. Trust Co. v. Carlin, 152 AD3d at 493; Wells Fargo Bank, N.A. v. Thomas, 150 AD3d at 1313; JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d at 645; UCC 3-204[2]). Further, where the note is affixed to the complaint, “it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date” (JPMorgan Chase Bank, N.A. v. Weinberger, 142 AD3d at 645; see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 362; Wells Fargo Bank, N.A. v. Thomas, 150 AD3d at 1313). In opposition, the defendant failed to raise a triable issue of fact as to the plaintiff’s standing.However, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference, since the evidence submitted in support of the motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304, which is a condition precedent to foreclosure (see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890; Investors Sav. Bank v. Salas, 152 AD3d 752; Wells Fargo Bank, N.A. v. Trupia, 150 AD3d 1049). The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of the statute (see Investors Sav. Bank v. Salas, 152 AD3d at 753; Citibank, N.A. v. Wood, 150 AD3d 813; CitiMortgage, Inc. v. Pappas, 147 AD3d 900; cf. Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95). Contrary to the plaintiff’s contention, the affidavit of a vice president for loan documentation of the loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing (see Wells Fargo Bank, N.A. v. Lewczuk, 153 AD3d 890; Investors Sav. Bank v. Salas, 152 AD3d at 754; Wells Fargo Bank, N.A. v. Trupia, 150 AD3d at 1050; Citibank, N.A. v. Wood, 150 AD3d 813; CitiMortgage, Inc. v. Pappas, 147 AD3d at 901; cf. Flagstar Bank, FSB v. Mendoza, 139 AD3d 898).The Supreme Court erred in denying the defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted against him based upon the plaintiff’s failure to comply with RPAPL 1304. The defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him, submitting, inter alia, his own affidavit attesting that he did not receive any notice pursuant to RPAPL 1304 (see CitiMortgage, Inc. v. Pappas, 147 AD3d at 902; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d at 106; cf. Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909, 911). In opposition, the plaintiff failed to raise a triable issue of fact. Thus, the court should have granted the defendant’s cross motion for summary judgment (see CitiMortgage, Inc. v. Pappas, 147 AD3d at 902; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d at 106).In light of our determination, we need not reach the defendant’s remaining contention.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.MATTER of Skyler G. (Anonymous). Dutchess County Department of Social Services, res; Heather G. (Anonymous), ap — (Proceeding No. 1)MATTER of Sarah G. (Anonymous). Dutchess County Department of Social Services, res; Heather G. (Anonymous), ap — (Proceeding No. 2) (Docket Nos. B-4175-14, B-4176-14)Appeal from an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated August 31, 2016. The order, after a hearing, found that the mother violated the terms of a prior order of suspended judgment and that it would be in the best interests of the subject children to terminate the mother’s parental rights, revoked the suspended judgment, terminated the mother’s parental rights, and transferred guardianship and custody of the subject children to the Dutchess County Department of Community and Family Services for the purpose of adoption.ORDERED that the order is modified, on the facts, by deleting the provisions thereof revoking the suspended judgment, terminating the mother’s parental rights, and transferring guardianship and custody of the subject children to the Dutchess County Department of Community and Family Services for the purpose of adoption; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for a new dispositional hearing and a new disposition thereafter in accordance herewith.In July 2014, the petitioner commenced this proceeding to terminate the mother’s parental rights based on her permanent neglect of the subject children. On March 26, 2015, the mother admitted to permanently neglecting the children and consented to an order of disposition suspending judgment for one year upon stated terms and conditions. The suspended judgment, inter alia, required the mother to have ongoing involvement in a specified parenting class and, during visitation, to refrain from discussing with the children when they might be coming home. On July 15, 2015, the petitioner filed a motion alleging that the mother violated the terms of the suspended judgment and seeking revocation of the suspended judgment and termination of the mother’s parental rights. After a hearing, the Family Court revoked the suspended judgment and terminated the mother’s parental rights. The mother appeals.The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of the conditions of the suspended judgment (see Family Ct Act §633[f]; Matter of Phoenix D.A. [Jessie A.], 123 AD3d 823, 824; Matter of Kimble G., II [Kimble G.],108 AD3d 534; Matter of Gerald M.,112 AD2d 6). The best interests of the children, however, remain relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment (see Family Ct Act §631; Matter of Phoenix D.A. [Jessie A.],        123 AD3d at 824; Matter of Shdell Shakell L., 51 AD3d 1027, 1028). Here, a preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court’s conclusion that it was in the best interests of the children to terminate the mother’s parental rights (see Matter of Phoenix D.A. [Jessie A.],123 AD3d at 824; Matter of Shdell Shakell L.,  51 AD3d at 1028).Although the children had spent several years in foster care, throughout most of the hearing they were living in a residential children’s home. During the course of the hearing, the children were placed in a pre-adoptive foster home together. However, one child was removed from that home and placed back into residential care prior to the Family Court’s determination. Moreover, the testimony elicited at the hearing demonstrated that the children emphatically wanted to be with the mother, that the mother regularly visited with the children until the court suspended all contact, and that there is a strong bond between the children and their mother. Further, the mother had not used illegal substances for a substantial period of time, was committed to her recovery, regularly attended AA meetings, completed programs related to issues of anger and domestic violence, obtained an order of protection against her abuser, and engaged in mental health treatment. In addition, while the court determined that the mother violated the terms of the suspended judgment, in large part, based on a finding that she failed to comply with a provision mandating ongoing involvement in a specified parenting class, the mother completed that class prior to the conclusion of the hearing.Under these facts, we find that termination of the mother’s parental rights was not in the best interests of the children (see Matter of Phoenix D.A. [Jessie A.],123 AD3d at 824; Matter of Shdell Shakell L., 51 AD3d at 1028; Matter of Nicole Lee B.,256 AD2d 1103, 1104).The mother’s remaining contentions are without merit.Accordingly, we remit the matter to the Family Court, Dutchess County, for a new dispositional hearing to determine the best interests of the children and a new disposition thereafter.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Nassau County, res-ap, v. New York State Urban Development Corporation, doing business as Empire State Development Corporation appellants-respondents defendants (and third-party actions). (Index No. 2750/04)In an action, inter alia, to recover damages for breach of contract, the defendants New York State Urban Development Corporation, doing business as Empire State Development Corporation, and Dormitory Authority of the State of New York appeal from so much of an order of the Supreme Court, Nassau County (DeStefano, J.), entered April 6, 2015, as denied that branch of their motion which was for summary judgment dismissing the fifth cause of action, and the plaintiff cross-appeals, as limited by its notice of appeal and brief, from so much of the same order as granted that branch of the motion of the defendants New York State Urban Development Corporation, doing business as Empire State Development Corporation, and Dormitory Authority of the State of New York which was for summary judgment dismissing the first cause of action.ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that the order is reversed insofar as cross-appealed from, on the law, and that branch of the motion of the defendants New York State Urban Development Corporation, doing business as Empire State Development Corporation, and Dormitory Authority of the State of New York which was for summary judgment dismissing the first cause of action is denied; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.This action concerns the design and construction of a natatorium in Nassau County (hereinafter the Aquatic Center) in support of New York State’s bid for the 1998 Goodwill Games. The State Legislature appropriated $24 million of state funds to the defendant New York State Urban Development Corporation, doing business as Empire State Development Corporation (hereinafter UDC), to manage the design and construction of the Aquatic Center. UDC, in turn, assigned the management of the design and construction of the Aquatic Center to the defendant Dormitory Authority of the State of New York (hereinafter DASNY). The Aquatic Center was to be constructed on parkland owned by the plaintiff, Nassau County, which had been donated for that specific purpose, and, upon completion of construction, the Aquatic Center would be owned by the County, which would be solely responsible thereafter for its operation and maintenance. The construction of the Aquatic Center was completed in 1998. The Aquatic Center hosted the 1998 Goodwill Games and opened to the general public later that year.The County commenced this action asserting, inter alia, a cause of action to recover damages for breach of contract against UDC (hereinafter the first cause of action) based on an agreement dated February 1, 1996, entered into between the County and UDC (hereinafter the County-UDC Agreement). The County also asserted a cause of action to recover damages for breach of contract against DASNY (hereinafter the fifth cause of action), alleging that it was a third-party beneficiary of an agreement dated February 2, 1996, entered into between UDC and DASNY (hereinafter the UDC-DASNY Agreement). The amended complaint alleged, in relevant part, that UDC and DASNY, which were responsible for overseeing the design and construction of the Aquatic Center, failed to ensure that it was properly designed and constructed in a good and workmanlike manner.UDC and DASNY moved, inter alia, for summary judgment dismissing the first and fifth causes of action. The Supreme Court, among other things, granted that branch of the motion which was for summary judgment dismissing the first cause of action and denied that branch of the motion which was for summary judgment dismissing the fifth cause of action. UDC and DASNY appeal, and the County cross-appeals.Turning first to the appeal of UDC and DASNY, the primary question before us is whether the Supreme Court erred in finding that they failed to establish, as a matter of law, that the County was not a third-party beneficiary of the UDC-DASNY Agreement. Even assuming that the motion papers were sufficient to establish, prima facie, that the County was not a third-party beneficiary of the UDC-DASNY Agreement, the County, based on the provisions of the UDC-DASNY Agreement and the circumstances surrounding that agreement (see Cutler v. Hartford Life Ins. Co., 22 NY2d 245, 253), raised triable issues of fact (see Staten Is. N.Y. CVS, Inc. v. Gordon Retail Dev., LLC, 57 AD3d 760, 763; Dormitory Auth. of State of N.Y. v. Baker, Jr., of N.Y., 218 AD2d 515, 516). UDC and DASNY’s remaining contention is without merit. Thus, the court properly denied that branch of the motion which was for summary judgment dismissing the fifth cause of action, alleging breach of contract against DASNY.Turning to the County’s cross appeal, the only question before us is whether the County-UDC Agreement is supported by valid consideration. The Supreme Court, in relevant part, accepted the contention of UDC and DASNY that the County-UDC Agreement was unenforceable for lack of consideration. Specifically, they contended that UDC’s actions in connection with the design and construction of the Aquatic Center were undertaken solely as a result of UDC’s statutory duty to implement the legislative appropriation of $24 million to complete the Aquatic Center project. In other words, UDC claimed that it received no benefit from its participation in the project, and that none of its actions were the result of a bargained-for exchange with the County. We disagree.At the outset, while the project documents are silent as to any compensation, financial or otherwise, received by UDC for its management of the project, UDC and DASNY failed to produce evidentiary materials in admissible form to support the contention that UDC received no such compensation. In any event, even assuming that UDC did not receive anything of value for its role in the project, this does not establish, as a matter of law, that the County-UDC Agreement is invalid for lack of consideration. “‘Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]‘” (Dee v. Rakower, 112 AD3d 204, 210, quoting Anand v. Wilson, 32 AD3d 808, 809). The detriment suffered or the thing promised need not benefit the promisee or a third party, or be of substantial value to anyone (see Weiner v. McGraw-Hill, Inc., 57 NY2d 458).Here, there is evidence in the record that the $24 million appropriation proved insufficient to complete the Aquatic Center, and but for the County’s promise to fund future cost overruns, which was specifically incorporated into the County-UDC Agreement, the project could not have gone forward as planned. In fact, the cost-overrun provision of the County-UDC Agreement bears all the hallmarks of a negotiated agreement. It makes clear that the County bears no responsibility for any portion of a cost overrun attributable to any fees payable to either UDC or DASNY, and it requires UDC to refund any overpayment of a cost overrun to the County upon completion of the project. Contrary to the contention of UDC and DASNY, the County’s promise to fund future cost overruns constitutes a “specific, bargained-for legal detriment” (Anand v. Wilson, 32 AD3d at 809).Thus, the Supreme Court erred in granting that branch of the motion which was for summary judgment dismissing the first cause of action, alleging breach of contract against UDC.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, res, v. Eric Quinones, ap — Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated February 7, 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.In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), the defendant was designated a level three sex offender. Contrary to the defendant’s contention, the County Court properly assessed 15 points under risk factor 12 (acceptance of responsibility). The defendant’s refusal to participate in a sex offender treatment program automatically demonstrates an unwillingness to accept responsibility for the crime (see People v. Grigg, 112 AD3d 802, 803; People v. DeCastro, 101 AD3d 693, 693). While the defendant contended that he refused to participate in treatment while incarcerated because he believed that he would be better served by attending a program when he was released, and that he planned to attend such a program, “[r]easons for not participating in sex offender treatment are only relevant in considering a request for a downward departure” (People v. Grigg, 112 AD3d at 803).Further, the defendant’s contention that he is entitled to a downward departure, which is made for the first time before this Court, is unpreserved for appellate review and, in any event, without merit (see People v. Sweat, 147 AD3d 802, 802).CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.MATTER of Ronald Ackridge, pet, v. Barry Warhit, etc. res — Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from continuing with the prosecution of the petitioner in a criminal action entitled People v. Ackridge, pending in the Supreme Court, Westchester County, under Indictment No. 16-143, 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.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Akiva Shapiro, ap, v. Eltman, Eltman & Cooper, P.C., respondent def — (Index No. 703909/15)In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Dufficy, J.), entered May 10, 2016, and (2), as limited by his brief, from so much of an order of the same court entered July 1, 2016, as granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss the third and fourth causes of action insofar as asserted against the defendant Eltman, Eltman & Cooper, P.C.ORDERED that the appeal from the order entered May 10, 2016, is dismissed as abandoned; and it is further,ORDERED that the order entered July 1, 2016, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendant Eltman, Eltman & Cooper, P.C.The plaintiff’s appeal from the order entered May 10, 2016, must be dismissed as abandoned, as the plaintiff failed to raise any issues with respect to that order in his brief.The plaintiff allegedly began working for the defendant Eltman, Eltman & Cooper, P.C. (hereinafter Eltman), as a computer programmer and analyst in September 2011 upon the execution of a consulting contract. In October 2011, the plaintiff and Eltman allegedly entered into two additional contracts, including a second consulting agreement (hereinafter the RN Contract), both of which were oral agreements. In June 2014, Eltman terminated its relationship with the plaintiff.Thereafter, the plaintiff commenced this action, alleging, inter alia, as a third cause of action, breach of the RN Contract, and, as a fourth cause of action, breach of the RN Contract’s implied covenant of good faith and fair dealing. The plaintiff alleged in the complaint that the RN Contract “could have been completed in less than a year,” was “not terminable at will,” and provided for certain commission payments with a “multi-year payout schedule” in the event it was terminated by Eltman. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the third and fourth causes of action insofar as asserted against Eltman. Among other things, the Supreme Court granted those branches of the defendants’ motion. The plaintiff appeals.Contrary to the plaintiff’s contention, the RN Contract could not be performed by both parties within one year. ”Where there is absolutely no possibility in fact and law of full performance by both parties within one year, the Statute of Frauds bars enforcement of an oral contract” (Americana Petroleum Corp. v. Northville Indus. Corp., 200 AD2d 646, 647; see Hamburg v. Westchester Hills Golf Club, Inc., 96 AD3d 802, 802-803; Spitz v. Klein, 33 AD3d 988, 989). This rule is codified at General Obligations Law §5-701. While the plaintiff alleged in the complaint that the RN Contract was “not subject to the statute of frauds” because written “notes or memorandums subscribed by Eltman exist,” none of the writings relied upon by the plaintiff, singly or in combination, satisfy the statute of frauds with respect to the alleged RN Contract (see Taylor Diversified Corp. Servs., Inc. v. AMBAC Assur. Corp., 81 AD3d 810, 812). To the extent that the plaintiff argues that Eltman’s “part performance” under the RN Contract removes it from the statute of frauds, this argument is without merit, as the “exception to the statute of frauds for part performance has not been extended to General Obligations Law §5-701″ (Kelly v. P & G Ventures 1, LLC, 148 AD3d 1002, 1004; see Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 NY2d 229, 234 n 1; Stephen Pevner, Inc. v. Ensler, 309 AD2d 722, 722). Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the third and fourth causes of action insofar as asserted against Eltman as barred by the statute of frauds (see General Obligations Law §5-701[a][1]).CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Gerald Mobley, ap — (Ind. No. 1225/14)Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William Donnino, J.), rendered March 4, 2016, convicting him of criminal possession of a controlled substance in the fourth degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of the suppression of physical evidence.ORDERED that the judgment is affirmed.The specific contentions raised by the defendant regarding the lawfulness of the stop of his vehicle and subsequent arrest are unpreserved for appellate review (see CPL 470.05[2]; People v. Cruz, 137 AD3d 1158, 1159). In any event, the defendant’s contentions lack merit. ”[T]he stop of [a] vehicle must be grounded on a reasonable suspicion that at least one of its occupants has engaged, is engaging, or is about to engage in criminal activity” (People v. Bloise, 150 AD2d 382, 382 [internal quotation marks omitted]; see People v. Ocasio, 85 NY2d 982, 984). Here, the officers who stopped the vehicle driven by the defendant had, at the very least, reasonable suspicion to believe that one of the occupants had just engaged in a narcotics transaction. While the defendant contends that two of the officers who assisted in the stop personally lacked information giving rise to reasonable suspicion, these officers were acting at the direction of fellow officers involved in the stop, who had probable cause to believe that one of the occupants committed a crime (see People v. Moreno, 148 AD3d 827). Accordingly, the hearing court properly denied suppression of the physical evidence found in the vehicle.The defendant’s contention that the evidence supporting his convictions was legally insufficient is partially unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant’s remaining contentions are without merit.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. James Miller, ap — (Ind. No. 4792/09)Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Raymond Guzman, J.), entered January 9, 2015, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of that court rendered April 20, 2010, convicting him of burglary in the second degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.ORDERED that the order is affirmed.The defendant’s contention that portions of the trial testimony of the People’s fingerprint expert violated his right to confront witnesses under the Sixth Amendment to the United States Constitution (see People v. Rawlins, 10 NY3d 136) was previously raised upon the defendant’s direct appeal (see People v. Miller, 102 AD3d 813, 814), where this Court found the contention to be unpreserved and determined, upon reviewing the record, that the case did not present a reasonable basis for the exercise of our interest of justice jurisdiction (see People v. Semione, 235 NY 44, 46; People v. Feuer, 11 AD3d 633, 634). Therefore, the defendant is barred from raising this contention anew, “dressed in different procedural garments” (People ex rel. Baumgart v. Martin, 9 NY2d 351, 354; see CPL 440.10[2][a]).Contrary to the defendant’s contention, the Supreme Court could determine from the parties’ submissions that the defendant was not deprived of the effective assistance of counsel (see People v. Satterfied, 66 NY2d 796, 799-800; People v. Khan, 153 AD3d 935).Accordingly, the Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Deshaun Morris, ap — (Ind. No. 4336/08)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Albert Tomei, J.), rendered May 12, 2010, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of murder in the second degree (see Penal Law §125.25[1]) beyond a reasonable doubt (see People v. Hale, 147 AD3d 975; People v. Leddy, 47 AD3d 842). Additionally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPLR 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633, 643-644).The defendant’s contention that his right to due process was violated by alleged prosecutorial misconduct on summation is unpreserved for appellate review (see CPL 470.05[2]), as the defendant failed to object, request curative instructions, or timely move for a mistrial (see People v. Dunning, 148 AD3d 1047, 1048), and we decline to review the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c]; [6]; People v. Grant, 152 AD3d 792, 793; People v. Jones, 139 AD3d 878, 880; People v. Ellis, 133 AD3d 777, 778; People v. Belle, 113 AD3d 630, 631).The Supreme Court properly denied the defendant’s motion for a mistrial (see People v. Pleasant, 146 AD3d 985, 986).CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Sgroi, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Andrew Caballero, ap — (Ind. No. 1022/12)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 9, 2016 (People v. Caballero,137 AD3d 929), affirming a judgment of the Supreme Court, Queens County, rendered September 10, 2014.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).LEVENTHAL, J.P., SGROI, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.Episcopal Diocese of Long Island res, v. St. Matthias Nondenominational Ministries, Inc., et al., ap — (Index No. 14247/12)In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, the defendants appeal from a judgment of the Supreme Court, Nassau County (Diamond, J.), entered February 25, 2015, which, upon an order of the same court dated January 20, 2015, granting the plaintiffs’ motion for summary judgment on the complaint, determined that the plaintiff Trustees of the Estate Belonging to the Diocese of Long Island is the lawful fee owner of the subject property, and directed the defendants to vacate the premises within 30 days of the date of the judgment.ORDERED that the judgment is affirmed, with costs.The subject real property was deeded to the Corporation of the Diocesan Missions of Long Island in 1904. That corporation later merged with the plaintiff Trustees of the Estate Belonging to the Diocese of Long Island (hereinafter the Trustees). The 1904 deed stated that the property was transferred “in trust for the use and occupation of the congregation of St. Matthias Mission in care of the archdeacon of Queens and Nassau, Diocese of Long Island, Protestant Episcopal Church.” A corrected 1905 deed omitted any language indicating that the land was to be held in trust for the congregation of St. Matthias. After operating as an Episcopal congregation for more than 100 years, the congregation of St. Matthias Episcopal Church chose to incorporate as a nondenominational church, the defendant St. Matthias Nondenominational Ministries, Inc. In 2009, the Diocese declared St. Matthias Episcopal Church to be extinct.The Supreme Court did not err in granting the plaintiffs’ motion for summary judgment on the complaint. The plaintiffs established their prima facie entitlement to judgment as a matter of law, and the defendants failed to raise a triable issue of fact in opposition. The 1905 corrected deed removed any language indicating that the property was being held in trust for the congregation of St. Matthias. Where a deed of correction has been obtained, the corrective deed will control and the title of the grantee will be determined by the new grant (see Ardi v. Martin, 2009 NY Slip Op 32407[U] [Sup Ct, Suffolk County]; 8-91 Warren’s Weed New York Real Property 91.18). The 1905 deed superseded the 1904 deed and was controlling.Even if the 1905 deed did not supersede the 1904 deed, the Supreme Court was correct in holding that the ownership of the property vested in the Trustees upon the separation of St. Matthias Nondenominational Ministries from the Episcopal Church pursuant to the applicable canons of the Protestant Episcopal Church in the United States of America (hereinafter the National Church) and the plaintiff Episcopal Diocese of Long Island (hereinafter the Diocese). By accepting the principles of the National Church and the Diocese for approximately 100 years, the defendants were subject to their canons, rules, and practices (see Trustees of the Diocese of Albany v. Trinity Episcopal Church, 250 AD2d 282).Canons I.7.4 and I.7.5 of the National Church, known as the “Dennis Canons,” were adopted in 1979, in response to the United States Supreme Court’s decision in Jones v. Wolf, 443 US 595, which held that the constitution of a hierarchical church can be crafted to recite an express trust in its favor concerning the ownership and control of local church property (see Episcopal Diocese of Rochester v. Harnish, 11 NY3d 340, 351; Trustees of the Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 AD2d at 284-285). Canon I.7.4 provides that all real and personal property held by or for the benefit of any parish, mission, or congregation is held in trust for the National Church and the Diocese in which such parish, mission, or congregation was located. This canon also provides that the existence of this trust shall in no way limit the power and authority of the parish, mission, or congregation otherwise existing over such property, so long as that parish, mission, or congregation remains a part of, and subject to, the National Church and its constitution and canons. The fact that the St. Matthias congregation preexisted the Dennis Canons does not render those canons inapplicable. Retroactive application of trust provisions such as those in the Dennis Canons does not extinguish the real property rights of local churches or parishes. The canons were declarations of existing church policy. These canons expressly codified a trust relationship which had implicitly existed between the local parishes and their dioceses throughout the history of the National Church (see Trustees of Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 AD2d at 288). There is sufficient evidence of an intent to create an implied trust to hold church property in favor of the National Church and the Diocese, based upon the defendants’ actions in conformity with the tenets and canons of the National Church, and the National Church’s establishment of an express trust in the relevant canons. Accordingly, both an express trust and an implied trust exist for the benefit of the plaintiffs with respect to the real property held by the defendants. Consequently, upon the defendants’ schism from the National Church and the Diocese in 2008, the defendants forfeited the real property to the plaintiffs under Canon I.7.4 of the National Church and Canon V.3.V of the Diocese (see id. at 289-290).The affirmation of the plaintiffs’ expert was insufficient to raise a triable issue of fact to defeat summary judgment, as it consisted solely of legal analysis and conclusions. Expert opinion as to a legal conclusion is impermissible (see Penda v. Duvall, 141 AD3d 1156; Schulz v. Cuomo, 133 AD3d 945; Measom v. Greenwich & Perry St. Hous. Corp., 268 AD2d 156).The defendants’ remaining contentions are either improperly raised for the first time on appeal or without merit.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.PEOPLE, etc., res, v. Freddie Johnson, a/k/a Frankie Johnson, ap — (Ind. No. 2347/10)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D’Emic, J.), rendered February 9, 2011, convicting him of arson in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant pleaded guilty to arson in the second degree, and was sentenced as a second violent felony offender (see CPL 400.15). Contrary to the defendant’s contention on appeal, the Supreme Court did not err in failing to hold a hearing as to the constitutionality of a prior conviction on which the second violent felony offender adjudication was based. Although the defendant initially indicated that he controverted the allegations of the predicate felony statement with respect to the constitutionality of the prior conviction, the defendant then decided to withdraw that challenge, and declined to controvert the allegations of the statement. Accordingly, no hearing was required (see CPL 400.15[4]).The defendant’s pro se challenge to the factual sufficiency of the plea is unpreserved for appellate review (see People v. Lopez, 71 NY2d 662, 665). Further, preservation was required because, contrary to the defendant’s contention, the defendant’s recitation of the facts did not negate the element of intent or suggest the possibility of an “intoxication defense” so as to clearly cast significant doubt upon his guilt or otherwise call into question the voluntariness of the plea (see id. at 666). In any event, the factual allocution was sufficient (see People v. Goldstein, 12 NY3d 295, 301; People v. Seeber, 4 NY3d 780, 781).The defendant’s contention, in his pro se supplemental brief, that he received ineffective assistance of counsel is not reviewable on direct appeal because it involves matter dehors the record (see People v. Love, 57 NY2d 998, 1000; People v. Williams, 149 AD3d 986).The defendant’s remaining contentions, raised in counsel’s brief and the pro se supplemental brief, are without merit.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.JPMorgan Chase Bank, National Association, res, v. Jeffrey Novis, appellant def — (Index No. 11781/11)Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 12, 2015. The order granted the motion of Wilmington Savings Fund Society, FSB, which was for leave to renew and reargue its prior motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Jeffrey Novis and to be substituted as plaintiff in this action, which motion had been denied in a prior order dated June 3, 2015, and, upon renewal and reargument, vacated the prior order and granted the prior motion.ORDERED that the order entered November 12, 2015, is reversed, on the facts and in the exercise of discretion, with costs, the motion of Wilmington Savings Fund Society, FSB, which was for leave to renew and reargue its prior motion is denied, and the order dated June 3, 2015, is reinstated.In September 2007, the defendant Jeffrey Novis (hereinafter the defendant) executed, in favor of the plaintiff, a promissory note in the amount of $772,000, and a mortgage on certain real property located in Woodbury. In August 2011, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant.After the defendant filed an answer, which raised lack of standing as an affirmative defense, nonparty Wilmington Savings Fund Society, FSB (hereinafter Wilmington), moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to be substituted as the plaintiff in this action. The Supreme Court denied Wilmington’s motion. Thereafter, Wilmington moved for leave to renew and reargue its motion. The court granted the motion for leave to renew and reargue, and thereupon vacated the order dated June 3, 2015, and granted Wilmington’s prior motion. The defendant appeals.A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see Professional Offshore Opportunity Fund, Ltd. v. Braider, 121 AD3d 766, 769; Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585, 586). Renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Jovanovic v. Jovanovic, 96 AD3d 1019, 1020; see Fardin v. 61st Woodside Assoc., 125 AD3d 593).Here, the Supreme Court should have denied that branch of Wilmington’s motion which was for leave to renew. The new materials that Wilmington relied upon were available to it prior to the date on which it filed its motion. Yet, Wilmington failed to set forth a reasonable justification for failing to present the new facts on the original motion. Thus, the court improvidently exercised its discretion in granting that branch of the motion which was for leave to renew (see Robinson v. Viani, 140 AD3d 845, 848; Deutsche Bank Trust Co. v. Ghaness, 100 AD3d at 586).The Supreme Court also improvidently exercised its discretion in granting leave to reargue. A motion for leave to reargue is similarly directed to the trial court’s discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied law (see CPLR 2221[d]; Barnett v. Smith, 64 AD3d 669). Here, contrary to Wilmington’s contention, the court, in its initial determination, did not overlook or misapprehend relevant facts or misapply the law in deciding that Wilmington had failed to meet its prima facie burden on the issue of standing, thus requiring denial of its motion (see CPLR 4518[a]; Bank of N.Y. Mellon v. Cutler, 154 AD3d 910, 912). Wilmington failed to demonstrate, prima facie, that the plaintiff, which was the originator of the loan, was still the holder of the note when it commenced the action (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; cf. Emigrant Mtge. Co., Inc. v. Persad, 117 AD3d 676, 677).In light of our determination, we need not reach the parties’ remaining contentions.Accordingly, we reverse the order granting Wilmington leave to renew and reargue its prior motion, deny the motion, and reinstate the order dated June 3, 2015.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.PEOPLE, etc., res, v. Richard Sassi, Jr., ap — (Ind. No. 127/12)Appeal by the defendant from a judgment of the County Court, Dutchess County (Craig S. Brown, J.), rendered May 18, 2016, convicting him of falsely reporting an incident in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of falsely reporting an incident in the third degree (see Penal Law §240.50[2]) beyond a reasonable doubt (see        People v. Barto, 144 AD3d 1641, 1642; People v. Krebbeks, 140 AD3d 1785, 1786; People v. Taylor, 79 AD3d 944, 948). The defendant contends that the testimony of a prosecution witness was incredible as a matter of law. We conclude that the testimony of this witness, an individual whom the defendant had previously recruited as a confidential informant in the defendant’s capacity as a county law enforcement officer, was credible as a matter of law. Nor was this a case “in which all of the evidence of guilt came from a single prosecution witness who gave irreconcilable testimony pointing both to guilt and innocence, leaving the jury without basis, other than impermissible speculation, for its determination of either” (People v. Thomas, 139 AD3d 764, 765; see People v. Delamota, 18 NY3d 107, 114). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Moreover, the County Court providently exercised its discretion in permitting the People to present testimony concerning attempted extractions of cell phones to recover deleted text messages, and in allowing testimony relating to the rules and regulations of the drug task force, since such testimony gave context to records that were admitted on consent (see People v. Johnson, 137 AD3d 811, 812; People v. Wisdom, 120 AD3d 724, 725), and the probative value was not outweighed by the prejudice to the defendant (see People v. Brewer, 28 NY3d 271, 277; People v. Beer, 146 AD3d 895, 896). Moreover, the court did not err in admitting into evidence certain portions of the defendant’s testimony given at a prior trial on the instant indictment since such testimony constituted judicial admissions (see Harrison v. United States, 392 US 219, 222; People v. King, 158 AD2d 471, 471), was relevant, and demonstrated a consciousness of guilt on the defendant’s part (see generally People v. Kent, 79 AD3d 52, 69, mod 19 NY3d 290).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Wilmington Savings Fund Society, FSB, etc., res, v. Michael Zimmerman, appellant def — (Index No. 16040/08)Appeals from (1) a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Hector D. LaSalle, J.), entered August 5, 2013, and (2) an order of that court (Andrew G. Tarantino, Jr., J.), dated February 23, 2015. The order, insofar as appealed from, denied those branches of the motion of the defendant Michael Zimmerman which were pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale entered upon his failure to answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.ORDERED that the appeal from the judgment of foreclosure and sale is dismissed, as no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511; Deutsche Bank Natl. Trust Co. v. Jagroop, 104 AD3d 723); and it is further,ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.In April 2008, Homesales, Inc. (hereinafter Homesales), commenced this action to foreclose a mortgage against Michael Zimmerman (hereinafter the defendant), among others. After the defendant failed to appear or answer the complaint, in an order dated May 4, 2009, the Supreme Court granted Homesales’s motion for an order of reference. The defendant served an answer dated February 13, 2012, but the answer was rejected as untimely. In October 2012 and January 2013, the defendant’s attorneys served notices of appearance in the action. In June 2013, Homesales moved for a judgment of foreclosure and sale and to amend the caption to reflect that Wilmington Savings Fund Society, FSB (hereinafter the plaintiff), was the proper plaintiff. The court granted the motion and issued a judgment of foreclosure and sale entered August 5, 2013, upon the defendant’s default in answering the complaint.In February 2014, the defendant moved, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an order dated February 23, 2015, the Supreme Court, inter alia, denied those branches of the motion. The defendant appeals.The Supreme Court properly denied those branches of the defendant’s motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. Contrary to the plaintiff’s contention, the defendant is not judicially estopped from seeking vacatur of the judgment of foreclosure and sale as a result of his filing of a bankruptcy petition, because he did not receive a favorable result in the bankruptcy proceeding by taking a position contrary to one he is taking in this action (see Dime Sav. Bank of Williamsburg v. 146 Ross Realty, LLC, 106 AD3d 863, 864). However, as the plaintiff correctly contends, the defendant waived the defense of lack of personal jurisdiction by appearing in the action without asserting an objection to jurisdiction by way of motion or in an answer (see American Home Mtge. Servicing, Inc. v. Arklis, 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v. Albert, 78 AD3d 983, 984; National Loan Invs., L.P. v. Piscitello, 21 AD3d 537, 537-538).The Supreme Court also properly denied that branch of the plaintiff’s motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale on the ground of fraud, misrepresentation, or other misconduct of an adverse party. The defendant failed to meet his burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff warranting vacatur of the judgment of foreclosure and sale pursuant to CPLR 5015(a)(3) (see LaSalle Bank N.A. v. Oberstein, 146 AD3d 945, 946; Golden First Bank v. Tal, 136 AD3d 974, 974-975; Citimortgage, Inc. v. Bustamante, 107 AD3d 752, 753).The defendant’s remaining contentions are not properly before this Court.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Chambers, Maltese and Duffy, JJ.James Liotta, ap, v. County of Suffolk, et al., res — (Index No. 9849/11)Lieb at Law, P.C., Center Moriches, NY (Dennis C. Valet of counsel), for appellant.Jared Kasschau, Acting County Attorney, Hauppauge, NY (James Squicciarini of counsel), for respondents.In an action to recover damages for false arrest and false imprisonment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated September 22, 2015, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action to recover damages for false arrest and false imprisonment after he was arrested for violating an order of protection that had been granted to his former wife. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.Probable cause to believe that a person committed a crime is a complete defense to claims of false arrest and false imprisonment (see MacDonald v. Town of Greenburgh, 112 AD3d 586; Strange v. County of Westchester, 29 AD3d 676). The existence or absence of probable cause becomes a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest (see MacDonald v. Town of Greenburgh, 112 AD3d at 586-587). Generally, the “information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest” (Carlton v. Nassau County Police Dept, 306 AD2d 365, 366; seeNasca v. Sgro, 130 AD3d 588, 589).Here, the defendants established their prima facie entitlement to summary judgment dismissing the complaint. In support of their motion they submitted, among other things, a copy of an order of protection directing the plaintiff to stay away from his former wife, and a copy of the former wife’s statement to the police, in which she stated that she called the 911 emergency number when she saw the plaintiff at one of their children’s baseball games. They also submitted a copy of the deposition testimony of the police officer who responded to that 911 call, who testified that the former wife told him that the plaintiff “knew she would be at the field because she [was] the only one that would be bringing the child to the field,” and that the plaintiff “showed up at the field,” “star[ed] at her for several minutes,” and did not leave until she picked up her phone and “mouthed that she was going to contact the police.” This evidence was sufficient to establish that the police had probable cause to arrest the plaintiff for the crime of criminal contempt in the second degree (Penal Law §215.50[3]). In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see Nasca v. Sgro, 130 AD3d at 589-590; Dioguardi v. City of New Rochelle, 179 AD2d 798, 799).Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Jay H. Weindling, ap, v. Helaine F. Berkowitz, res — (Docket No. F-17943-15)Jerome A. Scharoff, P.C., Garden City, NY, for appellant.Zenith T. Taylor, Forest Hills, NY, for respondent.Appeals from (1) an order of the Family Court, Queens County (John M. Hunt, J.), dated January 24, 2017, and (2) an order of that court dated March 8, 2017. The order dated January 24, 2017, dismissed without prejudice the father’s petition for modification of his child support obligation to the extent of deeming the parties’ daughter constructively emancipated and terminating his support obligation as to her. The order dated March 8, 2017, denied the father’s motion, inter alia, to vacate the order dated January 24, 2017.ORDERED that the appeal from the order dated January 24, 2017, is dismissed as academic in light of our determination on the appeal from the order dated March 8, 2017; and it is further,ORDERED that the order dated March 8, 2017, is reversed, on the law, the father’s motion is granted, the order dated January 24, 2017, is vacated, the petition is reinstated, and the matter is remitted to the Family Court, Queens County, for a determination on the merits of the petition; and it is further,ORDERED that one bill of costs is awarded to the father.The parties are divorced and have two children together. The father filed a petition in the Family Court to modify his child support obligation with respect to the parties’ daughter to the extent of deeming her constructively emancipated and terminating his support obligation as to her since she allegedly refused to communicate or visit with him. While the proceeding was pending, the father submitted a proposed order to show cause to the Supreme Court, Queens County, seeking, inter alia, to hold the mother in contempt for violating the terms of the judgment of divorce and for sanctions against her, and asking that the pending Family Court proceeding be consolidated in the Supreme Court with the contempt motion.At a court appearance before the Family Court on the father’s modification petition, the father’s counsel mistakenly informed the Family Court that the father was “bringing a contemporaneous motion in Supreme Court” seeking, inter alia, to “declar[e] both children constructively emancipated.” Upon hearing this, the Family Court, sua sponte, dismissed the father’s petition, and issued an order dated January 24, 2017, accordingly. Thereafter, the Supreme Court declined to sign the father’s proposed order to show cause.The father then moved in the Family Court, inter alia, to vacate the order dated January 24, 2017, and to have his petition for modification of his child support obligation with respect to the parties’ daughter restored to the Family Court’s trial calendar, on the ground that his counsel had misrepresented to the Family Court that the proposed order to show cause submitted to the Supreme Court requested substantially identical relief. In an order dated March 8, 2017, the Family Court denied the father’s motion. The father appeals from the order of dismissal and the subsequent order denying his motion, inter alia, to vacate.A court’s power to dismiss a pleading, sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal (see First United Mtge. Banking Corp. v. Lawani, 147 AD3d 912, 913; U.S. Bank, N.A. v. Emmanuel, 83 AD3d 1047, 1048). No such extraordinary circumstances were present here (see generally Henning v. 17 Murray Rest. Corp., 137 AD3d 1216). In fact, it appears that the Family Court’s decision to dismiss the father’s petition was based on a misapprehension—albeit one induced by an unintentional misstatement made by the father’s counsel—that the father had filed for substantially identical relief before the Supreme Court.Accordingly, the father’s petition for modification of his child support obligation to the extent of deeming the parties’ daughter constructively emancipated and terminating his support obligation as to her must be reinstated, and the matter remitted to the Family Court, Queens County, for a determination of the father’s petition on the merits.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Kolien Thompson-Richmond, res, v. Robert A. Perez, ap — (Docket No. O-5381-12/15A)Appeal from an order of the Family Court, Dutchess County (Joan S. Posner, J.), dated September 16, 2016. The order denied the father’s motion to vacate an order of protection that was entered against him upon his failure to appear at a scheduled court date.ORDERED that the order is affirmed, without costs or disbursements.On March 29, 2016, the Family Court in this family offense proceeding granted the mother’s motion pursuant to Family Court Act §842 for an extension of an order of protection against the father and in her favor, upon the father’s failure to appear at a scheduled court conference. The court thereupon issued, upon the father’s default, an order of protection due to expire on March 29, 2018. Thereafter, the father moved pursuant to CPLR 5015(a)(1) to vacate the default order of protection. In an order dated September 16, 2016, the court denied his motion. The father appeals.“A party seeking to vacate an order entered on default must establish that there was a reasonable excuse for the default and a potentially meritorious defense” (Matter of Mongitore v. Linz, 95 AD3d 1130, 1130). Here, even if the father provided a reasonable excuse for his failure to appear at the conference, he did not establish a potentially meritorious defense to the mother’s motion (see Matter of McKinney v. Jones, 151 AD3d 973; Matter of Mongitore v. Linz, 95 AD3d at 1131; cf. Matter of Gastaldi v. Gastaldi, 125 AD3d 657). Accordingly, the Family Court properly denied the father’s motion pursuant to CPLR 5015(a)(1) to vacate the default order of protection.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Mario Metellus, ap — (Ind. No. 4923/05)Appeal by the defendant from a judgment of the Supreme Court, Kings County (William E. Garnett, J.), rendered December 7, 2012, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Matthew J. D’Emic, J.), of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.ORDERED that the judgment is reversed, on the law, and a new trial is ordered.The Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 210.20(1)(g) to dismiss the indictment on the ground that he was denied his right to a speedy trial and his due process right to prompt prosecution. A defendant’s right to a speedy trial is guaranteed both by the United States Constitution (see US Const 6th, 14th Amends; Klopfer v. North Carolina,386 US 213), and by statute (see CPL 30.20[1]; Civil Rights Law §12). Moreover, an unjustified delay in prosecution will deprive a defendant of the State constitutional right to due process (see NY Const, art I, §6; People v. Decker,13 NY3d 12, 14; People v. Staley, 41 NY2d 789, 791). However, “a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant” (People v. Vernace,96 NY2d 886, 888; see People v. Decker,13 NY3d at 14). Where there has been extended delay, the People have the burden to establish good cause (see People v. Decker,13 NY3d at 14; People v. Singer, 44 NY2d 241, 254).In determining whether a defendant’s constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant’s defense (see People v. Romeo,12 NY3d 51, 55; People v. Taranovich, 37 NY2d 442, 445; see also Moore v. Arizona, 414 US 25, 26; Barker v. Wingo,407 US 514, 533). These factors apply as well to the due process guarantee (see People v. Decker, 13 NY3d at 15; People v. Vernace, 96 NY2d at 887; People v. Staley, 41 NY2d at 792). ”In this State, ‘we have never drawn a fine distinction between due process and speedy trial standards’ when dealing with delays in prosecution” (People v. Vernace, 96 NY2d at 887, quoting People v. Singer,44 NY2d at 253).Here, the Supreme Court appropriately balanced the requisite factors in denying the defendant’s motion to dismiss the indictment. While there was an extensive delay of 31 months between the commission of the decedent’s murder and the indictment, the Supreme Court properly determined that the People met their burden of demonstrating good cause for the delay. The case was largely circumstantial and, thus, the People had a good faith basis to wait until they believed that they had sufficient evidence to arrest the defendant (see People v. Decker,13 NY3d at 14; People v. Denis,276 AD2d 237, 248; People v. LaRocca, 172 AD2d 628; cf. Doggett v. United States, 505 US 647, 652-653; People v. Staley, 41 NY2d at 792). Moreover, the nature of the charge, murder in the second degree, was very serious, the defendant was not incarcerated during the delay period, and he failed to demonstrate prejudice resulting from the delay (see People v. Vernace,96 NY2d at 888; People v. Fuller, 57 NY2d 152, 160; People v. Taranovich,37 NY2d at 445-446; People v. Bryant,65 AD2d 333, 337).The Supreme Court also properly denied, after hearing, that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials, because the statements were voluntarily made after the defendant knowingly, intelligently, and voluntarily waived his Miranda rights (see Miranda v. Arizona,384 US 436; People v. Dayton,66 AD3d 797; People v. O’Malley, 282 AD2d 884).Contrary to the defendant’s contention, the Supreme Court imposed a sufficient sanction, an adverse inference charge, on the prosecution for failing to produce the Miranda card used to administer the warnings to the defendant (see People v. Martinez,276 AD2d 645; People v. Fullwood,254 AD2d 431). Furthermore, the People’s failure to produce the Miranda card did not constitute a Rosario violation (see People v. Rosario,9 NY2d 286, 289-291). Two detectives credibly testified that the Miranda warnings were preprinted on the Miranda card. Therefore, since the Miranda card was not a prior statement of a prosecution witness (cf. People v. Consolazio,40 NY2d 446, 453), the failure to produce the Miranda card did not constitute a Rosario violation. The defendant’s further contention that the People’s failure to produce the memo book of one of the detectives constituted a Rosario violation is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit, because the detective’s unrebutted testimony was that he took no notes during his interview of the defendant.We agree with the defendant, however, that reversal is warranted based on the Supreme Court’s dismissal of the first jury panel. The court opened jury selection by swearing in a full panel of prospective jurors. The court then stated the charges against the defendant and listed the names of all of the prospective witnesses, asking jurors to indicate if they recognized their names. After the court gave its preliminary instructions and questioned individual jurors about potential hardships, it called 20 people into the jury box. The court asked each of those prospective jurors about his or her background, contacts with the criminal justice system, and hobbies, and then turned the questioning over to the prosecutor. The prosecutor questioned the prospective jurors until the court broke for lunch. After the recess, both defense counsel and the prosecutor notified the court about an interaction between one of the potential jurors and the defendant’s brother. The court was told that as people were waiting outside the courtroom to re-enter, one of the potential jurors approached and hugged the defendant’s brother. The two chatted briefly until defense counsel interceded and directed them to stop. The two, however, continued to talk until both defense counsel and one of the prosecutors stopped them. During the colloquy on the People’s application to dismiss the entire jury panel, the prosecutor maintained that three of the other potential jurors seemed to be looking and commenting on what was going on, while defense counsel maintained that the three potential jurors were actually standing about 10 to 15 feet away, were not privy to the conversation, and were not able to hear it.The Supreme Court granted the prosecutor’s application to dismiss the entire jury panel, concluding that the defendant’s brother had potentially tainted the entire panel. Significantly, the court did not first conduct an inquiry of the potential jurors as to what they had seen and as to whether they could remain impartial. Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (People v. Thorpe, 223 AD2d 739, 740; see CPL 270.05[2]; People v. Collier, 114 AD3d 1136; People v. Roblee,70 AD3d 225). By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial (cf. People v. Wells,7 NY3d 51, 59-60), the court deprived the defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law §500; see CPL 270.05[2]; People v. Collier,114 AD3d 1136; People v. Roblee, 70 AD3d 225).Since there must be a new trial, we note that, although the issue is unpreserved for appellate review (see CPL 470.05[2]), the defendant correctly contends that the admission of DNA profiles and reports violated his right of confrontation. ”The Sixth Amendment to the United States Constitution guarantees a defendant the right to be ‘confronted with the witnesses against him [or her]‘” (People v. Brown,        13 NY3d 332, 338, quoting Crawford v. Washington, 541 US 36, 53-54). ”This provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant… had a prior opportunity for cross-examination’” (People v. Brown,        13 NY3d at 338, quoting Crawford v. Washington, 541 US at 53-54). ”Statements that are considered testimonial include ‘affidavits,… similar pretrial statements that declarants would reasonably expect to be used prosecutorially… [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’” (People v. John,        27 NY3d 294, 303, quoting Crawford v. Washington, 541 US at 51-52). Here, the DNA profiles and reports produced from the testing of evidence recovered from the decedent’s home, including the defendant’s clothing, are testimonial, because such profiles and reports “were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of [that] defendant,” and because all of the documents in the file of the Office of the Chief Medical Examiner refer to the defendant by name and label him a “suspect” (People v. John, 27 NY3d at 308; see People v. Austin,30 NY3d 98). Furthermore, the admission of such evidence violated the defendant’s confrontation right, because it was admitted upon the testimony of an analyst who did not perform, witness, or supervise the generation of the defendant’s DNA profile, or perform an independent analysis on the raw data (see People v. Austin, 30 NY3d at 104-105; People v. John,27 NY3d at 313-315).The defendant’s remaining contentions need not be reached in light of our determination.HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.MATTER of Autumn H. (Anonymous). Suffolk County Department of Social Services, ap; Clay H. (Anonymous), res — (Docket No. N-8277-16)Appeal from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated May 5, 2017. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish that the father neglected the subject child, dismissed the petition.ORDERED that order is affirmed, without costs or disbursements.The Suffolk County Department of Social Services (hereinafter the DSS) commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by engaging in domestic violence against the child’s mother in the presence of the child. After a fact-finding hearing, the Family Court found that the DSS failed to establish neglect, and dismissed the petition. The DSS appeals.To establish neglect, a petitioner must demonstrate by a preponderance of the evidence, “first, that [the] child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent… to exercise a minimum degree of care in providing the child with the proper supervision or guardianship” (Nicholson v. Scoppetta, 3 NY3d 357, 368; see Family Ct Act §§1012[f][i]; 1046[b][i]). Although the “exposure of the child to domestic violence between the parents may form the basis for a finding of neglect” (Matter of Michael G., 300 AD2d 1144, 1144), “exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment” (Nicholson v. Scoppetta, 3 NY3d at 375 [emphasis omitted]). Indeed, a single incident of domestic violence that the child did not witness may be insufficient to establish neglect (see Matter of Kiana M.-M. [Robert M.], 123 AD3d 720; Matter of Ilona H. [Elton H.], 93 AD3d 1165; Matter of Christy C. [Jeffrey C.], 74 AD3d 561).Here, the DSS presented the hearsay testimony of a caseworker who testified that the mother described being choked by the father. The mother’s statements were corroborated by her certified hospital records. The caseworker’s testimony, however, was inconsistent and equivocal as to whether the child was present during the incident, and thus, the testimony was insufficient to establish by a preponderance of the evidence that the physical, mental, or emotional condition of the child was placed in imminent danger of impairment as a result of the father’s conduct (see Family Ct Act §§1012[f][i][B]; 1046[b][i]; Matter of Kiana M.-M. [Robert M.], 123 AD3d at 721; Matter of Christy C. [Jeffrey C.], 74 AD3d at 562). Accordingly, the Family Court properly dismissed the petition.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.MATTER of Kristina Villafana, res, v. Vincent A. Walker, ap — (Docket No. F-3623-16)Appeal from an order of the Family Court, Suffolk County (Matthew G. Hughes, J.), dated September 21, 2016. The order denied the father’s objections to an order of that court (Aletha V. Fields, S.M.) dated June 24, 2016, which, after a hearing, granted the mother’s petition for child support and directed him to pay, inter alia, weekly child support in the sum of $277.ORDERED that the order dated September 21, 2016, is affirmed, without costs or disbursements.The mother and the father, who were never married, are the parents of two children. On February 25, 2016, the mother commenced this proceeding by filing a petition for child support in the Family Court. At the parties’ first court appearance on March 24, 2016, the father brought his income tax returns for the preceding two years. The court directed the father to provide a financial disclosure affidavit, explaining to him that absent full financial disclosure, child support would be determined based on the needs of the children. The case was adjourned repeatedly at the father’s request until May 26, 2016, when the Support Magistrate issued a preclusion order due to the father’s failure to provide full financial disclosure in compliance with Family Court Act §424-a.After a hearing, the Support Magistrate determined the needs of the children and directed the father to pay $277 per week in child support, retroactive to the date of the petition. Thereafter, in an order dated September 21, 2016, the Family Court denied the father’s objections to the Support Magistrate’s order. The father appeals.Family Court Act §424-a(a) provides, in relevant part, that “[a] sworn statement of net worth shall be filed with the clerk of the court on a date to be fixed by the court no later than ten days after the return date of the petition.” Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act §424-a, “the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to respondent’s financial ability to pay support” (Family Ct Act §424-a[b]; see Matter of Suffolk County Dept. of Social Servs. v. Block, 152 AD3d 529, 530; Matter of Speranza v. Speranza, 113 AD3d 622, 623; Matter of Feng Lucy Luo v. Yang, 89 AD3d 946; Matter of Sheenagh O’R. v. Sean F., 50 AD3d 480, 481-482).Here, the Support Magistrate properly determined that the father had failed to comply with the statutory requirement to provide financial disclosure, and imposed an order of preclusion (see Matter of Suffolk County Dept. of Social Servs. v. Block, 152 AD3d at 530; Matter of Speranza v. Speranza, 113 AD3d at 623; Matter of Feng Lucy Luo v. Yang, 89 AD3d at 946).Furthermore, where, as here, there is insufficient evidence to determine parental income, the Family Court is authorized and directed to award child support based upon the needs of the child (see Family Ct Act §413[1][k]; Matter of Suffolk County Dept. of Social Servs. v. Block, 152 AD3d at 530; Matter of Feng Lucy Luo v. Yang, 89 AD3d at 946-947; Matter of Tsarova v. Tsarov, 59 AD3d 632, 633; Matter of Genender v. Genender, 51 AD3d 669, 670).Accordingly, the Family Court properly denied the father’s objections.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.PEOPLE, res, v. Ronald Bower, ap — Appeal by the defendant from an order of the County Court, Nassau County (Teresa K. Corrigan, J.), dated April 2, 2014, 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.In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the County Court assessed the defendant 10 points under risk factor 12 (acceptance of responsibility) and 10 points under risk factor 13 (conduct while confined). The assessment of these points was proper, as it was supported by clear and convincing evidence in the record, including evidence that the defendant still maintained his innocence of the crimes for which he was convicted after more than 20 years of incarceration, and evidence that he committed three tier II disciplinary violations and one tier III disciplinary violation while incarcerated (see People v. Anderson, 137 AD3d 988; People v. Mosley, 106 AD3d 1067, 1068; People v. Lewis, 37 AD3d 689, 690).The County Court properly denied the defendant’s application for a downward departure from his presumptive risk level designation. A downward departure from a sex offender’s presumptive risk level generally is warranted only where there exists a mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter SORA Guidelines) (see People v. Fryer, 101 AD3d 835, 836). A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128; see People v. Gillotti, 23 NY3d 841, 861). If the defendant “surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (People v. Gillotti, 23 NY3d at 861; see People v. Wyatt, 89 AD3d at 128). Here, the defendant failed to establish, by a preponderance of the evidence, the existence of such a mitigating factor (see SORA Guidelines at 4; People v. Moultrie, 147 AD3d 800, 801; People v. Simmons, 146 AD3d 912, 913).The defendant’s remaining contentions are without merit.Accordingly, the County Court properly designated the defendant a level three sex offender.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.PEOPLE, etc., res, v. Kevin D. Vanderpool, ap — (Ind. No. 10092/15)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered July 5, 2016, convicting him of criminal possession of a controlled substance in the fifth degree, criminal possession of a weapon in the fourth degree, and unlawful possession of marijuana, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Steven W. Paynter, J.), after a hearing (Thomas A. Demakos, J.H.O.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).After a hearing, the Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. The credible evidence at the hearing established that police officers properly stopped the vehicle in which the defendant was riding based on an apparent violation of Vehicle and Traffic Law §375(12-a)(b) (see People v. Estrella, 10 NY3d 945, 946; People v. McKane, 267 AD2d 253; People v. Edwards, 222 AD2d 603, 604). The officers then directed the vehicle’s occupants to lower all of the vehicle’s windows, and all of the windows were lowered. As one of the officers approached the passenger’s side of the vehicle and pointed a flashlight inside, he observed a gravity knife on the front passenger floor in front of the defendant’s feet. This observation gave the officers the authority to seize the knife (see People v. Brown, 96 NY2d 80, 88-89), and provided them with probable cause to arrest the defendant (see People v. Smith, 125 AD3d 897, 898). During a valid search incident to the defendant’s arrest, the officers properly seized $1,636, 12 bags of cocaine, and a bag of marijuana from the defendant’s person (see Chimel v. California, 395 US 752, 762-763; People v. Evans, 43 NY2d 160, 165).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Austin, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.Jacob Ganchrow res, v. Karen Kremer, ap — (Index No. 703697/14)In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Raffaele, J.), entered April 14, 2016, which denied her motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint and granted the plaintiffs’ cross motion, in effect, to extend the time to serve the complaint.ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the defendant’s motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint is granted, and the plaintiffs’ cross motion, in effect, to extend the time to serve the complaint is denied.On January 15, 2013, the defendant, while operating her own vehicle, allegedly was involved in an accident with a vehicle in which the plaintiffs, Jacob Ganchrow (hereinafter the injured plaintiff) and Susan Ganchrow, were passengers. By the filing of a summons with notice, the plaintiffs commenced this personal injury action. The defendant served the plaintiffs with a notice of appearance and demand for a complaint on October 14, 2014. The plaintiffs had until November 10, 2014, to serve their complaint upon the defendant, but failed to do so (see CPLR 2103[b][2]; 3012[b]; General Construction Law §25-a[1]).On September 30, 2015, the defendant moved pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint. In an affirmation in support of the motion, the defendant’s counsel stated that on September 2, 2015, he had phoned the plaintiffs’ counsel to request a response to the demand for a complaint. The defendant’s counsel also submitted with the motion a copy of a letter he sent to the plaintiffs’ counsel that same day memorializing their phone conversation. The plaintiffs cross-moved on November 12, 2015, in effect, to extend their time to serve their complaint. The plaintiffs annexed to their cross motion a proposed complaint verified by their counsel, and an uncertified copy of a police accident report concerning the accident which gave rise to this action. The Supreme Court denied the defendant’s motion and granted the plaintiffs’ cross motion, and the defendant appeals.To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff has to demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action (see Country Serv., Inc. v. Feiden & Assoc., P.C., 92 AD3d 914, 915). Although it is generally within the sound discretion of the motion court to determine what constitutes a reasonable excuse (see Pristavec v. Galligan, 32 AD3d 834, 834-835), reversal is warranted if that discretion is improvidently exercised (see Thompson v. Steuben Realty Corp., 18 AD3d 864, 865; Orwell Bldg. Corp. v. Bessaha, 5 AD3d 573, 574).Here, the plaintiffs failed to demonstrate either that they had a reasonable excuse for the delay in serving their complaint or that their causes of action were meritorious. The excuse for the failure to serve a complaint proffered by the plaintiffs’ counsel, that when the defendant’s demand was received by his office on October 18, 2014, an unidentified member of his support staff “apparently” placed the demand in the file without showing it to him, did not constitute a reasonable excuse (see e.g. J.C. Ryan EBCO/H&G, LLC v. Cyber-Struct, Inc., 134 AD3d 901, 902). Further, the fact that the letter memorializing the telephone conversation between the parties’ attorneys was sent to the former address of the plaintiffs’ counsel did not provide the plaintiffs with a reasonable excuse since their attorney never advised the Supreme Court or the defendant of his new address, and there is no requirement that a good faith letter be sent prior to moving to dismiss an action for failure to timely serve a complaint (see 22 NYCRR 202.7[a][2]; [c]; Piemonte v. JSF Realty, LLC, 140 AD3d 1145, 1146).Moreover, the plaintiffs failed to submit an affidavit of merit or other evidence demonstrating that their action was meritorious. The proposed complaint verified by their attorney, who did not have personal knowledge of the facts, was not sufficient to demonstrate that the action was potentially meritorious (see King v. King, 99 AD3d 672, 673; see also Baldwin v. Mateogarcia, 57 AD3d 594, 594-595). Further, the police accident report was uncertified and, thus, constituted inadmissible hearsay, and did not contain any admission by the defendant against her interest bearing on how the accident occurred (see Gezelter v. Pecora, 129 AD3d 1021, 1022-1023; Hazzard v. Burrowes, 95 AD3d 829, 831).Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to dismiss the action and in granting the plaintiffs’ cross motion, in effect, to extend the time to serve the complaint.AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Leventhal, J.P.; Barros, Nelson and Christopher, JJ.Shlomo Karpen, res, v. Golden Jubilee Realty, LLC, ap — (Index No. 501428/13)In an action, inter alia, for specific performance of a real estate contract, the defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated April 2, 2015, as granted the plaintiff’s cross motion for summary judgment on the cause of action for specific performance.ORDERED that the order is affirmed insofar as appealed from, with costs.On April 25, 2012, the plaintiff, as prospective purchaser, and the defendant, as prospective seller, executed a contract for the sale of real property located in Brooklyn. The closing did not occur pursuant to the terms of the contract, and the plaintiff commenced this action, inter alia, for specific performance of the contract. Subsequently, the defendant moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the cause of action for specific performance. The Supreme Court denied the motion and granted the cross motion, and the defendant appeals.On appeal, the defendant argues only that the plaintiff failed to proffer evidence establishing that the member of the defendant who executed the contract had the authority to bind the defendant. This argument is not properly before this Court, as the defendant has raised it for the first time on appeal, and it does not involve a question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture (see Vargas v. Crown Container Co., Inc., 114 AD3d 762, 764; Chia v. City of New York, 109 AD3d 865, 866-867).Accordingly, since the appellant raises no other issues warranting reversal, we affirm the order insofar as appealed from.LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.‌2015-04372Shlomo Karpen, respondent, v. Golden Jubilee Realty,LLC, appellant.(Index No. 501428/13)‌Motion by the respondent on an appeal from an order of the Supreme Court, Kings County, dated April 2, 2015, inter alia, to strike the appellant’s brief on the ground that it improperly raises issues for the first time on appeal. By decision and order on motion of this Court dated October 18, 2016, that branch of the motion which is to strike the appellant’s brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the branch of the motion which is to strike the appellant’s brief is denied as academic in light of our determination on the appeal.LEVENTHAL, J.P., BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.Fritz David, etc., ap, v. State of New York, res — (Claim No. 119965)In a claim to recover damages for medical malpractice, etc., the claimant appeals from an order of the Court of Claims (Marin, J.), dated May 13, 2015, which granted the defendant’s motion, in effect, for summary judgment dismissing the claim as barred by collateral estoppel.ORDERED that the order is affirmed, with costs.On October 2, 2010, the claimant’s wife died from a blood clot that traveled to her lungs after she gave birth by cesarean section at the State University of New York, Downstate Medical Center (hereinafter the hospital). The claimant commenced a medical malpractice action in the Supreme Court against, among others, Ehab Abdelmalek, the covering obstetrician employed by the hospital who helped treat the claimant’s wife. The claimant also commenced the instant claim in the Court of Claims. Thereafter, Abdelmalek moved in the Supreme Court for summary judgment dismissing the complaint insofar as asserted against him. The claimant chose not to oppose the motion, and the Supreme Court granted the motion. The hospital then moved, in effect, for summary judgment dismissing the claim as barred by collateral estoppel. The Court of Claims granted the motion, and the claimant appeals.“The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” (Capellupo v. Nassau Health Care Corp., 97 AD3d 619, 621; see Kaufman v. Eli Lily & Co., 65 NY2d 449, 455). The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior matter, and is decisive of the present action (see D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination (see id. at 664).Here, the hospital demonstrated the identity of issue requirement for collateral estoppel. In the Supreme Court action it was alleged that the malpractice included Abdelmalek’s failure to properly monitor the decedent’s condition before and after giving birth when she allegedly exhibited signs of having a blood clot. The instant claim was premised on the same theory of malpractice. In fact, the bills of particulars in the two cases were virtually identical.The claimant failed to meet his burden of demonstrating that he was not afforded a full and fair opportunity to litigate the issue of whether the hospital’s alleged improper monitoring of the decedent’s condition before and after giving birth resulted in the failure to diagnose and treat the blood clot. An award of summary judgment on a particular issue constitutes a determination on the merits, and gives rise to issue preclusion to the same degree as a favorable resolution at trial (see QFI, Inc. v. Shirley, 60 AD3d 656, 657). That is the case even where the nonmoving party has not opposed the motion (see Windley v. City of New York, 104 AD3d 597, 598; Fofana v. 41 W. 34th St., LLC, 71 AD3d 445, 448; QFI, Inc. v. Shirley, 60 AD3d at 657; Rodenheiser v. State of New York, 47 AD3d 788; Brown v. Suggs, 39 AD3d 395; Matter of Abady, 22 AD3d 71, 85; Harriman Estates Dev. Corp. v. General Acc. Ins. Co., 309 AD2d 575; Vinci v. Northside Partnership, 250 AD2d 965).The claimant’s remaining contentions are without merit.Accordingly, the Court of Claims properly granted the hospital’s motion, in effect, for summary judgment dismissing the claim.HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Dillon, Balkin and Sgroi, JJ.PEOPLE, etc., res, v. George Konstantinides, ap — (Ind. No. 605/04)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 October 14, 2008 (People v. Konstantinides, 55 AD3d 752, affd 14 NY3d 1), affirming a judgment of the Supreme Court, Queens County, rendered February 6, 2006.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).RIVERA, J.P., DILLON, BALKIN and SGROI, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.MATTER of Ricki I. (Anonymous), ap — (Docket No. D-19883-15)Appeal by Ricki I. from an order of disposition of the Family Court, Suffolk County (Richard Hoffman, J.), dated July 29, 2016. The order of disposition, upon an order of fact-finding and after a hearing, determined that he committed an act which constituted the crime of unlawful possession of weapons by persons under sixteen, adjudged him to be a juvenile delinquent, and placed him under the supervision of the Suffolk County Department of Probation until July 28, 2018.ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the order of fact-finding is vacated, the petition is dismissed, and the matter is remitted to the Family Court, Suffolk County, for the purpose of entering an order pursuant to Family Court Act §375.1.A juvenile delinquency proceeding is originated in the Family Court by the filing of a petition (see Family Ct Act §310.1[1]; Matter of Michael M., 3 NY3d 441, 445). For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof (see Family Ct Act §331.2[3]; Matter of Markim Q., 7 NY3d 405, 407; Matter of Michael M., 3 NY3d at 445; Matter of Neftali D., 85 NY2d 631, 635; Matter of Jahron S., 79 NY2d 632, 639). Such allegations must be set forth in the petition and/or the supporting depositions (see Family Ct Act §311.2[3]; Matter of Jahron S., 79 NY2d at 635-636). The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count (see Matter of Neftali D., 85 NY2d at 634). Here, neither the petition nor the supporting deposition provided sworn, nonhearsay allegations as to the appellant’s age, which is an element of the crime of unlawful possession of weapons by persons under 16 (see Penal Law §265.05; Matter of Diamond J., 134 AD3d 1117, 1118; Matter of Michael Grudge M., 80 AD3d 614, 615; Matter of Divine D., 79 AD3d 940, 941; Matter of Matthew W., 48 AD3d 587, 588). Accordingly, the petition was jurisdictionally defective and must be dismissed (see Matter of Diamond J., 134 AD3d at 1118; Matter of Michael Grudge M., 80 AD3d at 615; Matter of Divine D., 79 AD3d at 941; Matter of Matthew W., 48 AD3d at 588).In light of our determination, we need not reach the appellant’s remaining contentions.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Oneil Mairs, ap — (Ind. No. 676/11)Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 16, 2014, and (2) an amended judgment of the same court rendered January 7, 2015, convicting him of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the amended judgment; and it is further,ORDERED that the amended judgment is affirmed.The defendant was convicted of manslaughter in the second degree (Penal Law §125.15[1]), criminal possession of a weapon in the second degree (Penal Law §265.03[3]), and reckless endangerment in the first degree (Penal Law §120.25), arising out of the shooting death of a young woman at a house party in Queens.“The statutory definition of accessory liability provides that ‘[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’” (People v. Carpenter, 138 AD3d 1130, 1131, quoting Penal Law §20.00; see People v. Scott, 25 NY3d 1107, 1110). ”Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or ‘community of purpose’ with the principal” (People v. Carpenter, 138 AD3d at 1131, quoting People v. Cabey, 85 NY2d 417, 421; see People v. Scott, 25 NY3d at 1110).The defendant’s current challenge to the legal sufficiency of the evidence is unpreserved for appellate review, since he failed to advance his present arguments as a basis for dismissal in the trial court (see CPL 470.05[2]; People v. Gray, 86 NY2d 10; People v. Kearney, 25 AD3d 622, 623). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant’s guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law §§20.00; 125.15[1]; 265.03[1][b]; 120.25). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633; People v. Rizzo, 142 AD3d 1187).The defendant’s contention that he was deprived of a fair trial when the Supreme Court admitted into evidence certain allegedly inflammatory photographs is without merit. Photographic evidence “should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v. Pobliner, 32 NY2d 356, 370; see People v. Stevens, 76 NY2d 833, 835; People v. Thomas, 99 AD3d 737, 738). When allegedly inflammatory photographs are relevant to a material issue at trial, the court has broad discretion to determine whether the probative value of the photographs outweighs any prejudice to the defendant (see People v. Stevens, 76 NY2d at 835; People v. Thomas, 99 AD3d at 738). Here, the photographs at issue were relevant to material issues in the case, and the court did not improvidently exercise its discretion in admitting them into evidence. Contrary to the defendant’s contentions, the photographs were not so inflammatory as to have deprived him of a fair trial.The defendant’s contentions regarding alleged prosecutorial misconduct during summation are without merit. The prosecutor’s comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel’s summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 NY2d 105, 109-110; People v. King, 144 AD3d 1176, 1176-1177; People v. Nanand, 137 AD3d 945, 947-948; People v. Willis, 122 AD3d 950; People v. Hoke, 111 AD3d 959; People v. McGowan, 111 AD3d 850).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Nicholas Allen, ap — (Ind. No. 676/11)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 16, 2014, as amended January 7, 2015, convicting him of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment, as amended, is affirmed.The defendant was convicted of manslaughter in the second degree (Penal Law §125.15[1]), criminal possession of a weapon in the second degree (Penal Law §265.03[3]), and reckless endangerment in the first degree (Penal Law §120.25), arising out of the shooting death of a young woman at a house party in Queens.“The statutory definition of accessory liability provides that ‘[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’” (People v. Carpenter, 138 AD3d 1130, 1131, quoting Penal Law §20.00; see People v. Scott, 25 NY3d 1107, 1110). ”Inasmuch as the statute requires that the accomplice act with the mental culpability required for the commission of the underlying crime, an accomplice must have a shared intent, or ‘community of purpose’ with the principal” (People v. Carpenter, 138 AD3d at 1131, quoting People v. Cabey, 85 NY2d 417, 421; see People v. Scott, 25 NY3d at 1110). Contrary to the defendant’s contention, the evidence was legally sufficient to establish beyond a reasonable doubt his guilt of manslaughter in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, based on an acting-in-concert theory (see Penal Law §§20.00; 125.15[1]; 265.03[1][b]; 120.25). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633; People v. Rizzo, 142 AD3d 1187).The defendant’s contentions regarding alleged prosecutorial misconduct are without merit. The prosecutor’s comments on summation were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel’s summation, or otherwise did not deprive the defendant of a fair trial (see People v. Ashwal, 39 NY2d 105, 109-110; People v. King, 144 AD3d 1176, 1176-1177; People v. Nanand, 137 AD3d 945, 947-948; People v. Willis, 122 AD3d 950; People v. Hoke, 111 AD3d 959; People v. McGowan, 111 AD3d 850).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.MATTER of Catherine Commons, LLC, ap, v. Town of Orangetown, etc. respondents- respondents Nyack Union Free School District, intervenor-res-res — (Index Nos. 5002/11, 33561/12, 33437/13, 32944/14)In four related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2011, 2012, 2013, and 2014, the petitioner appeals from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated December 22, 2015, as denied its motion pursuant to CPLR 3217(b) to discontinue the proceedings with respect to one of the subject tax lots, and, by permission, from so much of the order as, sua sponte, directed the parties to merge two of the subject tax lots.ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing the parties to merge two of the subject tax lots; as so modified, the order is affirmed, with one bill of costs to the respondents-respondents and the intervenor-respondent-respondent.The petitioner owns, among other things, a townhouse building containing seven individual townhouse units located on two adjacent tax lots in the Town of Orangetown, in the Village of Nyack, Rockland County. It commenced tax certiorari proceedings for those two lots, as well as a third unrelated tax lot, challenging the amount of taxes assessed for those properties in the assessment rolls of 2011, 2012, 2013, and 2014. The petitioner moved pursuant to CPLR 3217(b) to discontinue the proceedings with respect to one of the tax lots. The respondents, the Town of Orangetown, the Town of Orangetown Assessor, and the Town of Orangetown Board of Assessment Review, and the intervenor-respondent, Nyack Central School District (hereinafter collectively the respondents), opposed the motion, arguing, inter alia, that their ability to defend the proceedings would be prejudiced by the discontinuance.The Supreme Court denied the motion, and, sua sponte, directed the parties to merge two of the subject lots. The petitioner appeals. We modify.A motion for leave to discontinue an action is addressed to the sound discretion of the court (see Tucker v. Tucker, 55 NY2d 378; Turco v. Turco, 117 AD3d 719; GMAC Mtge., LLC v. Bisceglie, 109 AD3d 874), and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results (see Jamaica Hosp. Med. Ctr., Inc. v. Oxford Health Plans [NY], Inc., 58 AD3d 686; Kaplan v. Village of Ossining, 35 AD3d 816; DuBray v. Warner Bros. Records, 236 AD2d 312).Here, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend the assessment on the remaining parcel.However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing the parties to merge two of the subject tax lots. ”Generally, a court may, in its discretion, ‘grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party’” (Clair v. Fitzgerald, 63 AD3d 979, 980, quoting Frankel v. Stavsky, 40 AD3d 918, 918-919; see Matter of Myers v. Markey, 74 AD3d 1344, 1345). Here, neither party sought merger of the subject lots or similar relief, and merger of those lots could potentially be prejudicial to the petitioner.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Deutsche Bank Trust Company Americas, etc., res, v. Aron Deutsch, appellant def — (Index No. 28582/09)Appeals from two orders of the Supreme Court, Kings County (Martin M. Solomon, J.), both dated August 18, 2015. The first order, insofar as appealed from, granted the plaintiff’s motion for an order of reference, and denied the cross motion of the defendant Aron Deutsch pursuant to CPLR 3215(c), in effect, to dismiss the complaint insofar as asserted against him as abandoned. The second order, insofar as appealed from, granted the plaintiff’s motion for an order of reference.ORDERED that the first order dated August 18, 2015, is reversed insofar as appealed from, on the law, the cross motion of the defendant Aron Deutsch pursuant to CPLR 3215(c), in effect, to dismiss the complaint insofar as asserted against him as abandoned is granted, the plaintiff’s motion for an order of reference is denied, and the second order dated August 18, 2015, is vacated; and it is further,ORDERED that the appeal from the second order dated August 18, 2015, is dismissed as academic in light of our determination on the appeal from the first order dated August 18, 2015; and it is further,ORDERED that one bill of costs is awarded to the defendant Aron Deutsch.In June 2006, Aron Deutsch (hereinafter the defendant) executed a note in the sum of $1,000,000, which was secured by a mortgage on residential property located in Brooklyn. Subsequently, the mortgage was assigned to the plaintiff. In November 2009, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. The defendant was served with process pursuant to CPLR 308(2) on November 11, 2009, but did not answer the complaint. Mandatory foreclosure settlement conferences were held from May 18, 2010, until October 4, 2011, at which time the Supreme Court advised the plaintiff that it could proceed with the action.In February of 2014, more than two years later, the plaintiff moved, inter alia, for an order of reference. The defendant cross-moved pursuant to CPLR 3215(c), in effect, to dismiss the complaint insofar as asserted against him as abandoned. The Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion.CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of a [default] judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned… unless sufficient cause is shown why the complaint should not be dismissed.” Here, the defendant defaulted in December 2009, but the plaintiff did not initiate proceedings for the entry of a default judgment until February 2014. Although any motions in the action were held in abeyance while settlement conferences were pending (see 22 NYCRR 202.12a[c][7]), the plaintiff was authorized to proceed with the action at the conclusion of mandatory settlement conferences on October 4, 2011. However, the plaintiff took no steps to initiate proceedings for entry of a default judgment until more than two years later, and it failed to demonstrate a reasonable excuse for its delay (see Wells Fargo Bank, N.A. v. Bonanno, 146 AD3d 844, 846; HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671; U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852). Accordingly, the Supreme Court should have denied the plaintiff’s motion for an order of reference and granted the defendant’s cross motion pursuant to CPLR 3215(c), in effect, to dismiss the complaint insofar as asserted against him as abandoned.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Wells Fargo Bank, N.A., etc., res, v. Susan Frankson appellants def — (Index No. 5437/10)Appeals from two orders of the Supreme Court, Kings County (Peter P. Sweeney, J.), both dated December 17, 2015. The first order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference. The second order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference, and appointed a referee to compute the amount due to the plaintiff.ORDERED that the appeal from so much of the first order dated December 17, 2015, as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Susan Frankson and Michelle Roberts and, in effect, for an order of reference is dismissed, as those portions of the order were superseded by the second order dated December 17, 2015; and it is further,ORDERED that the second order dated December 17, 2015, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689; see Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 684). Additionally, where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief (see Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, 628, affd 25 NY3d 355). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361; U.S. Bank N.A. v. Handler, 140 AD3d 948, 949). Either a written assignment of the underlying note or the physical delivery of the note is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 754).Here, the plaintiff demonstrated, prima facie, that it was the holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; U.S. Bank N.A. v. Saravanan, 146 AD3d 1010; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861; Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866; JP Morgan Chase Bank, N.A. v. Weinberger, 142 AD3d 643, 645; JPMorgan Chase Bank, N.A. v. Roseman, 137 AD3d 1222, 1223; Deutsche Bank Natl. Trust Co. v. Leigh, 137 AD3d 841, 842). Furthermore, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and an affidavit of its loan servicer’s document control officer, attesting to the borrower’s default under the terms of the loan (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726; Deutsche Bank Natl. Trust Co. v. Leigh, 137 AD3d at 842). In opposition, the defendants Susan Frankson and Michelle Roberts (hereinafter the defendants) failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants and, in effect, for an order of reference.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.PEOPLE, etc., res, v. Franto Chery, ap — (Ind. No. 4852/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Guzman, J.), rendered April 23, 2014, convicting him of attempted robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant contends that the evidence was legally insufficient to support the finding that the complainant suffered “physical injury,” an element of the crimes of attempted robbery in the second degree (Penal Law §§110.00, 160.10[2][a]) and assault in the third degree (Penal Law §120.00[1]). Physical injury is defined as either the impairment of physical condition or substantial pain (see Penal Law §10.00[9]). ”[I]mpairment of physical condition” does not require a victim’s incapacitation (People v. Tejeda, 78 NY2d 936, 938 [internal quotation marks omitted]). “‘[S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain,” although “[p]ain need not, however, be severe or intense to be substantial” (People v. Chiddick, 8 NY3d 445, 447). Whether substantial pain has been proven is generally a question for the trier of fact (see People v. Rojas, 61 NY2d 726, 727; Matter of Philip A., 49 NY2d 198, 200; People v. Monserrate, 90 AD3d 785, 787).Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the element of physical injury (see People v. Stanback, 149 AD3d 877, 878; People v. Carson, 126 AD3d 996, 997; People v. Rose, 120 AD3d 593, 594). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of Patricia R. Leippe, pet, v. Gerald J. Wilkoff, Inc. res — (Index No. 602404/13)Proceeding pursuant to Executive Law §298 to review a determination of the Commissioner of the New York State Division of Human Rights dated July 9, 2013. The determination adopted the recommendation of an administrative law judge, made after a hearing, dismissing the petitioner’s complaint against the respondents Gerald J. Wilkoff, Inc., and Gerald J. Wilkoff.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.In July 2011, the petitioner filed a complaint with the New York State Division of Human Rights (hereinafter the SDHR) against her former employer, Gerald J. Wilkoff, Inc., and her former coworker, Gerald J. Wilkoff, alleging, inter alia, that she was subjected to a hostile work environment and constructively discharged from her employment because of her sex. After a public hearing, an administrative law judge recommended that the complaint be dismissed. Thereafter, the Commissioner of the SDHR (hereinafter the Commissioner) adopted that recommendation, and dismissed the complaint. The petitioner subsequently commenced this proceeding pursuant to Executive Law §298 to review the Commissioner’s determination.The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence in the record (see Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Div. of Human Rights, 100 NY2d 326, 331; Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact… More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180-181 [citations omitted]; see Matter of Briggs v. New York State Div. of Human Rights, 142 AD3d 663, 664). “Courts may not weigh the evidence or reject [the SDHR's] determination where the evidence is conflicting and room for choice exists” (Matter of State Div. of Human Rights [Granelle], 70 NY2d at 106). Here, there is substantial evidence in the record to support the Commissioner’s determination that the petitioner was not subjected to a hostile work environment or constructively discharged because of her sex (see Morris v. Schroder Capital Mgt. Intl., 7 NY3d 616, 622; Matter of All Is. Airport Servs., Inc. v. New York State Div. of Human Rights, 127 AD3d 967, 968; Matter of Gold Coast Rest. Corp. v. Gibson, 67 AD3d 798, 799-800; Vitale v. Rosina Food Prods., 283 AD2d 141, 142-143; Pace v. Ogden Servs. Corp., 257 AD2d 101, 103).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Rivera, J.P.; Austin, Cohen and Connolly, JJ.Steven S. Siegel, ap, v. Adam Glassman res — (Index No. 8842/12)Appeal from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered July 21, 2015. The order granted the defendants’ motion for leave to renew and reargue their opposition to the plaintiff’s prior motion pursuant to CPLR 3126 to strike the answer and, upon renewal and reargument, vacated the determination in an order of that court entered May 5, 2015, granting the prior motion, and thereupon denied the prior motion.ORDERED that the order entered July 21, 2015, is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for leave to renew their opposition to the plaintiff’s prior motion pursuant to CPLR 3126 to strike the answer, and substituting therefor a provision denying that branch of the motion; as so modified, the order entered July 21, 2015, is affirmed, with costs to the defendants.In July of 2012, the plaintiff commenced this action to recover damages for breach of contract. In July of 2014, the plaintiff moved, inter alia, to compel the defendants to comply with a preliminary conference order dated April 3, 2014. In an order entered October 14, 2014, the Supreme Court granted the plaintiff’s motion to the extent of directing the defendants to produce certain discovery within 30 days of the order. In January 2015, the plaintiff moved pursuant to CPLR 3126 to strike the answer based on the defendants’ failure to comply with the order entered October 14, 2014. In opposition to the motion, the defendants furnished the outstanding discovery. In an order entered May 5, 2015, the court, among other things, granted the plaintiff’s motion to strike the answer. Thereafter, the defendants moved for leave to renew and reargue their opposition to the plaintiff’s motion to strike the answer. In an order entered July 21, 2015, the court granted the defendants’ motion, and upon renewal and reargument, vacated the determination in the order entered May 5, 2015, granting the plaintiff’s prior motion to strike the answer, and thereupon denied the prior motion.The Supreme Court should have denied that branch of the defendants’ motion which was for leave to renew, since the additional facts offered by the defendants were known to them at the time of the original motion and the defendants failed to set forth a reasonable justification for failing to present those facts at the time of the prior motion (see CPLR 2221[e]; Federal Natl. Mtge. Assn. v. Sakizada, 153 AD3d 1236; DLJ Mtge. Capital, Inc. v. David, 147 AD3d 1024, 1026-1027; Mount Sinai Hosp. v. Country Wide Ins. Co., 85 AD3d 1136, 1138).However, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was for leave to reargue their opposition to the plaintiff’s motion to strike the answer, since the defendants demonstrated that the court previously misapprehended the facts and applicable law in determining the prior motion (see CPLR 2221[d]). Further, upon reargument, the court properly denied the plaintiff’s motion. The plaintiff failed to provide an affirmation of a good-faith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7, necessitating denial of its motion (see Pardo v. Family Chiropractic, 131 AD3d 1214; Quiroz v. Beitia, 68 AD3d 957, 960; Fanelli v. Fanelli, 296 AD2d 373). Accordingly, upon reargument, the court properly vacated the determination in the order entered May 5, 2015, granting the plaintiff’s prior motion, and, thereupon, denied the prior motion.RIVERA, J.P., AUSTIN, COHEN and CONNOLLY, JJ., concur.By Dillon, J.P.; Leventhal, Sgroi and Cohen, JJ.PEOPLE, etc., res, v. James Gillespie, ap — (Ind. No. 2468/09)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 July 18, 2012 (People v. Gillespie, 97 AD3d 763), affirming a judgment of the Supreme Court, Queens County, rendered September 23, 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).DILLON, J.P., LEVENTHAL, SGROI and COHEN, JJ., concur.By Austin, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.MATTER of Nelson A. G.-L. (Anonymous). Maria Y. G. S., ap — (Docket No. G-20692-16)Appeal from an order of the Family Court, Suffolk County (George F. Harkin, J.), dated July 31, 2017. The order, insofar as appealed from, after a hearing, denied the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J).ORDERED that the order is reversed insofar as appealed from, on the facts, without costs or disbursements, the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J) is granted, and it is found that reunification of the subject child with his parents is not viable due to parental neglect and abandonment.In December 2016, Maria Y. G. S. (hereinafter the petitioner) filed a petition pursuant to Family Court Act article 6 to be appointed as guardian of Nelson A. G.-L. (hereinafter the child), a native of El Salvador, for the purpose of obtaining an order declaring that the child was dependent on the Family Court and making specific findings that he was unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental neglect and abandonment, and that it would not be in his best interests to be returned to his previous country of nationality and last habitual residence, so as to enable the child to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC §1101(a)(27)(J). Thereafter, the petitioner moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. In an order dated July 31, 2017, made after a hearing, the court, inter alia, denied the petitioner’s motion on the basis that, although the child was under 21, unmarried, and dependent on the Family Court, and that it was not in his best interests to be returned to El Salvador, the evidence did not establish that reunification of the child with one or both of his parents was not viable due to parental neglect and abandonment. The petitioner appeals.“Pursuant to 8 USC §1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a special immigrant is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court” (Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795; see Matter of Gurwinder S., 155 AD3d 959; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620). ”Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or similar parental conduct defined under State law, and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence” (Matter of Marvin E.M. de P. [Milagro C.C.---Mario Enrique M.G.], 121 AD3d 892, 893; see Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 795).“Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the [USCIS] for SIJS” (Matter of Marisol N.H., 115 AD3d 185, 188-189). ”Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the Department of Homeland Security” (Matter of Enis A.C.M. [Blanca E.M.---Carlos V.C.P.], 152 AD3d 690, 692). Consequently, the state or juvenile court is not making an immigration determination when it makes the requisite SIJS findings (see id. at 692).Based upon our independent factual review, we conclude that the record supports a finding that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment (see Matter of Dennis X.G.D.V., 153 AD3d 628, 630; Matter of Enis A.C.M. [Blanca E.M.---Carlos V.C.P.], 152 AD3d at 692; Matter        of Oscar J.L.J. [Segundo R.L.T.], 151 AD3d 969). The child testified that, while in El Salvador, although he was approached by gang members to join their gang during his walk to school, his parents did not make any arrangements for his transportation to and from school to ensure his safety or do anything to deter such recruitment activities although aware of such activities and the fact that a neighborhood boy, who resisted the gang’s efforts, was killed while traveling to another village (see Matter of Dennis X.G.D.V., 153 AD3d at 630). Moreover, the child testified that his parents strongly encouraged him to leave the family home in El Salvador but did not provide alternate living arrangements and have not supported him since his arrival in New York.Accordingly, the Family Court should have granted the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment.AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Roman, Miller and Connolly, JJ.PEOPLE, etc., res, v. Brendon Boria, ap — (Ind. No. 14-00199)Appeal by the defendant from a judgment of the County Court, Rockland County (Rolf Thorsen, J.), rendered December 15, 2015, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The County Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his plea of guilty. A motion to withdraw a plea of guilty rests within the sound discretion of the court, and generally the court’s determination will not be disturbed absent an improvident exercise of discretion (see CPL 220.60[3]; People v. Alexander, 97 NY2d 482, 485; People v. Street, 144 AD3d 711, 711-712; People v. Rodriguez, 142 AD3d 1189, 1190). ”Generally, a plea of guilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in its inducement” (People v. Smith, 54 AD3d 879, 880; see People v. Rodriguez, 142 AD3d at 1190; People v. Zakrzewski, 7 AD3d 881, 881). When a defendant moves to withdraw a plea of guilty, the nature and extent of the fact-finding inquiry rests largely in the discretion of the court, and a hearing will be granted only in rare instances (see People v. Tinsley, 35 NY2d 926; People v. Street, 144 AD3d at 712). Here, the record demonstrates that the defendant’s plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 NY3d 780, 780). The defendant’s claim that his attorney coerced him to plead guilty is belied by his statements under oath acknowledging that he was voluntarily pleading guilty, that he was satisfied with his attorney’s representation, and that no one had made any threats or forced him to enter his plea (see People v. Dazzo, 92 AD3d 796, 796-797; People v. Caruso, 88 AD3d 809, 810; People v. Jackson, 87 AD3d 552, 553; People v. Douglas, 83 AD3d 1092, 1092-1093).By pleading guilty, the defendant forfeited appellate review of his claim of ineffective assistance of counsel to the extent that the claim does not directly involve the plea negotiation (see People v. Dunne, 106 AD3d 928, 928; see also People v. Petgen, 55 NY2d 529, 534; People v. Turner, 40 AD3d 1018, 1019). To the extent that the defendant contends that ineffective assistance of counsel affected the voluntariness of his plea, the record demonstrates that the defendant received the effective assistance of counsel (see People v. Cobb, 19 AD3d 506; see also People v. Dazzo, 92 AD3d 796, 796-797).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.Pamela Sorocco, ap, v. Bruce P. Meglio respondents (and a third-party action and another action). (Index No. 849/13)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated April 29, 2016, as denied her motion for summary judgment on the issue of liability.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff allegedly was injured when a vehicle she was driving was struck in the rear by a vehicle owned by the defendant Ryder Truck Rental, Inc., leased by the defendant Logistics One, Inc., and operated by the defendant Bruce P. Meglio. The plaintiff commenced this action to recover damages for personal injuries, and moved for summary judgment on the issue of liability. The Supreme Court, inter alia, denied the motion, and the plaintiff appeals.A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence (see Tutrani v. County of Suffolk, 10 NY3d 906, 908; Cruz v. Finney, 148 AD3d 772, 773; Drakh v. Levin, 123 AD3d 1084, 1085). To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault (see Nikolic v. City-Wide Sewer & Drain Serv. Corp., 150 AD3d 754, 755; Bowen v. Farrell, 140 AD3d 1001, 1002).Here, in support of her motion the plaintiff submitted the transcript of her own deposition, at which she testified that, upon seeing a vehicle stopped in the lane ahead of her, she activated her hazard lights and applied her brakes “gently” to slow her vehicle. As she was slowing her vehicle it was struck from behind by the defendants’ vehicle. This testimony was sufficient to establish her prima facie entitlement to judgment as a matter of law (see Schmertzler v. Lease Plan U.S.A., Inc., 137 AD3d 1101, 1102; Le Grand v. Silbersein, 123 AD3d 773, 775). In opposition, however, the defendants submitted evidence sufficient to raise a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident (see D’Agostino v. YRC, Inc., 120 AD3d 1291, 1292; Martin v. Cartledge, 102 AD3d 841; Kerstesz v. Jason Transp. Corp., 102 AD3d 658, 659).Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Hall and Sgroi, JJ.MATTER of Jorge T. (Anonymous), Jr. Administration for Childrens Services, ap; Christine S. (Anonymous), res — (Docket No. N-06052-16)Gerard P. Nolan, Brooklyn, NY, for respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.Appeal from an amended order of the Family Court, Kings County (Ann E. O’Shea, J.), dated September 19, 2016. The amended order, after a hearing, denied the petitioner’s application to exclude the mother from the subject child’s home during the pendency of the proceeding or prohibit her from being alone with the child.ORDERED that the amended order is affirmed, without costs or disbursements.The petitioner commenced this child protective proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the subject child by misusing drugs and failing to comply with treatment. The petitioner sought to exclude the mother from the child’s home during the pendency of the proceeding, or, in the alternative, to prohibit the mother from being alone with the child. The Family Court, after a hearing, denied the petitioner’s application and released the child to the care of the mother and the father, without the petitioner’s supervision. The petitioner appeals.An exclusionary order of protection is effectively a removal of the child from his or her parent and, therefore, is governed by the same legal standards as are provided in Family Court Act §§1027 and 1028 (see Matter of Lucinda R. [Tabitha L.], 85 AD3d 78; Matter of Commissioner of Social Servs. [Alexandria H.], 159 Misc 2d 345 [Fam Ct, Kings County]; Gottlieb v. County of Orange, 84 F3d 511, 521 [2d Cir]). In determining whether removal of a parent from the child’s home is necessary, the Family Court must determine whether allowing the parent to remain in the home during the pendency of the proceedings “presents an imminent risk to the child’s life or health” (Family Ct Act §1028[a]). In making its determination, the Family Court “must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” (Nicholson v. Scoppetta, 3 NY3d 357, 378). The court “must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests” (id. at 378). Since the Family Court had the advantage of viewing the witnesses and assessing their character and credibility, its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of David Edward D., 35 AD3d 856; Matter of Jennifer R., 29 AD3d 1003, 1004; Matter of John Robert P. v. Vito C., 23 AD3d 659, 661).Here, there was a sound and substantial basis in the record for the Family Court’s determination that there was insufficient evidence to establish that the child would be subjected to an imminent risk if the mother was permitted to remain in the child’s home or that supervised visitation of the mother was necessary during the pendency of the proceeding (see Matter of Ryliegh B. [Madelan B.], 141 AD3d 579; Matter of David Edward D., 35 AD3d 856; Matter of Shevonne C., 292 AD2d 452).MASTRO, J.P., LEVENTHAL, HALL and SGROI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Bank of America, N.A., res, v. Brian Jonathan Welga appellants def — (Index No. 18506/13)Appeal from an order of the Supreme Court, Suffolk County (Ralph T. Gazzillo, J.), dated July 28, 2015. The order denied the motion of the defendants Brian Jonathan Welga and Tara Welga        to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction or, in effect, to vacate their default in answering the complaint and for leave to serve a late answer.ORDERED that the order is affirmed, with costs.The plaintiff commenced this mortgage foreclosure action in July 2013, alleging that the defendants Brian Jonathan Welga and Tara Welga (hereinafter together the defendants) failed to make certain required payments. It is undisputed that the defendants defaulted in answering the complaint. In January 2014, the defendants served an answer, which the plaintiff rejected as untimely. Subsequently, the defendants moved to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction or, in effect, to vacate their default in answering the complaint and for leave to serve a late answer. The Supreme Court denied the motion, and the defendants appeal.“[A] process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Wells Fargo Bank, NA v. Chaplin, 65 AD3d 588, 589). Here, contrary to the defendants’ contention, their submissions were insufficient to rebut the presumption of proper service pursuant to CPLR 308(1) and (2). Therefore, the Supreme Court properly denied that branch of their motion which was to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction.A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 2004, 3012[d]; Deutsche Bank Natl. Trust Co. v. Kuldip, 136 AD3d 969, 969; One West Bank, FSB v. Valdez, 128 AD3d 655, 655; Citimortgage, Inc. v. Stover, 124 AD3d 575, 576; Chase Home Fin., LLC v. Minott, 115 AD3d 634; Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 AD3d 784; Taddeo-Amendola v. 970 Assets, LLC, 72 AD3d 677). ”‘The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court’” (HSBC Bank USA, N.A. v. Lafazan, 115 AD3d 647, 648, quoting Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 AD3d 889, 890).Here, the defendants failed to demonstrate a reasonable excuse for their default. In light of the defendants’ failure to offer a reasonable excuse, it is unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense (see HSBC Bank USA, N.A. v. Lafazan, 115 AD3d at 648; U.S. Bank N.A. v. Stewart, 97 AD3d 740; see also HSBC Bank USA, N.A. v. Roldan, 80 AD3d 566, 567).Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was, in effect, to vacate their default in answering the complaint and for leave to serve a late answer.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.PAL Environmental Services, Inc., res, v. LJC Dismantling Corp., ap — (Index No. 28968/11)In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County (Grays, J.), entered September 15, 2015, which, upon so much of an order of the same court entered February 23, 2015, as granted that branch of the plaintiff’s motion which was for leave to renew that branch of its prior motion which was pursuant to CPLR 3126(3) to strike the defendant’s answer, which was denied by an order of the same court entered October 15, 2013, and, upon renewal, granted that branch of the plaintiff’s motion which was to strike the defendant’s answer, is in favor of the plaintiff and against it in the principal sum of $1,263,766.80.ORDERED that the judgment is reversed, on the law, with costs, so much of the order entered February 23, 2015, as, upon renewal, granted that branch of the plaintiff’s motion which was pursuant to CPLR 3126(3) to strike the defendant’s answer is vacated, and, upon renewal, that branch of the plaintiff’s motion is denied.The plaintiff commenced this action, inter alia, to recover damages for breach of contract. After issue was joined, the defendant failed to provide discovery pursuant to a preliminary conference order dated July 9, 2012, and later failed to comply with a compliance conference order dated January 8, 2013, directing the production of the same material. The parties entered into a stipulation on May 13, 2013, whereby the defendant agreed to respond to all outstanding discovery requests by May 28, 2013, with the understanding that “[t]he failure to comply with the terms of this Stipulation, absent a showing of good cause, shall result in… a striking of the answer, affirmative defenses, and counterclaims in the case of defendant, on notice to the [Supreme] Court of such noncompliance.” The stipulation was later so-ordered by the court.The defendant produced documents and other discovery responses by the end of May 2013. The plaintiff thereafter moved, inter alia, pursuant to CPLR 3126(3) to strike the defendant’s answer on the ground that the responses were incomplete and that the defendant had failed to comply with the terms of the stipulation. In opposition, the defendant maintained that it had timely and substantially complied with the terms of the stipulation. In an order entered October 15, 2013, the Supreme Court denied the motion. The plaintiff moved, inter alia, for leave to renew, and in an order entered February 23, 2015, the court granted that branch of the plaintiff’s motion which was for leave to renew, and, upon renewal, granted that branch of the plaintiff’s motion which was pursuant to CPLR 3126(3) to strike the defendant’s answer. The court found that the defendant had failed to fully and properly comply with the terms of the stipulation, and that the defendant’s conduct was willful and contumacious.“As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party’s pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious” (Henry v. Datson, 140 AD3d 1120, 1122; see Singer v. Riskin, 137 AD3d 999, 1001). ”The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, or contumacious conduct rests with the party seeking an order of preclusion” (Goodman, Rackower & Agiato v. Lieberman, 260 AD2d 599, 600; see Singer v. Riskin, 137 AD3d at 1001).Here, the vast majority of the documents and other responses provided by the defendant were not submitted as part of the plaintiff’s motion papers, and are not part of the record. The very limited evidence before the Supreme Court was insufficient to establish that the defendant failed to substantially comply with the terms of the stipulation, let alone that any such failure was willful or contumacious (see Singer v. Riskin, 137 AD3d at 1001). Accordingly, the court erred in granting that branch of the plaintiff’s motion which was pursuant to CPLR 3126(3) to strike the defendant’s answer.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Deutsche Bank National Trust Company, etc., ap, v. Bertha Vilfranc, respondent def — (Index No. 7919/09)Michael Kennedy Karlson, New York, NY, for respondent.Appeal from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated December 16, 2015. The order, insofar as appealed from, after a hearing to determine the validity of service of process, granted that branch of the cross motion of the defendant Bertha Vilfranc which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this action against the defendant Bertha Vilfranc (hereinafter the defendant), among others, to foreclose a mortgage. The defendant failed to interpose a timely answer to the complaint. The plaintiff moved for a default judgment and an order of reference, and the defendant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. Thereafter, the plaintiff withdrew its motion, and a hearing was conducted to determine whether the defendant was properly served with the summons and complaint. After the hearing, the Supreme Court, inter alia, granted that branch of the defendant’s cross motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The plaintiff appeals.“The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process” (Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d 343, 343; see HSBC Bank USA, N.A. v. Hamilton, 116 AD3d 663, 664). ”In reviewing a determination made after a hearing, this Court’s authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses” (Deutsche Bank Natl. Trust Co. v. Gordon, 129 AD3d 769, 769; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; HSBC Bank USA, N.A. v. Hamilton, 116 AD3d at 663).Here, at the hearing, the plaintiff submitted the process server’s affidavit of service, and established that the process server could not be compelled with due diligence to attend the hearing. Therefore, the process server’s affidavit of service constituted admissible prima facie evidence of service (see CPLR 4531; Campoverde v. Parejas, 95 AD3d 1251; Koyenov v. Twin-D Transp., Inc., 33 AD3d 967, 969). Nevertheless, even considering the affidavit, the plaintiff failed to sustain its burden of proving, by a preponderance of the evidence, that the defendant was served with the summons and complaint (cf. Wells Fargo Bank, N.A. v. Chaplin, 100 AD3d 744, 745).The plaintiff’s remaining contentions are either without merit or unpreserved for appellate review.Accordingly, the Supreme Court properly granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Miller and Brathwaite Nelson, JJ.Donald Boening ap, v. Nassau County Department of Assessment res — (Index No. 1818/14)Appeal from a judgment of the Supreme Court, Nassau County (Anthony F. Marano, J.), entered July 3, 2015. The judgment, insofar as appealed from, upon an oral decision of that court dated January 8, 2015, declared that the defendants were authorized to enact and enforce Nassau County Local Law 8-2013.ORDERED that the judgment is affirmed insofar as appealed from, with costs.In 2013, the defendant Nassau County Legislature adopted Nassau County Local Law 8-2013 (see Nassau County Administrative Code §6-30.0; hereinafter Local Law 8-2013), which requires owners of designated income-producing properties in Nassau County to file a statement setting forth “all income derived from and all expenses attributable to the operation of such property” (Nassau County Administrative Code §6-30.0[b]).These income and expense statements are intended to be used by the defendant Nassau County Department of Assessment (hereinafter the Department of Assessment) to assess the value of income-producing property for the purposes of taxation. Under Local Law 8-2013, landowners who fail to file a required income and expense statement are subject to certain enumerated penalties (see Nassau County Administrative Code §6-30.0[f]).The plaintiffs commenced this action against the County of Nassau, the Department of Assessment, and the Nassau County Legislature, arguing that the New York State Legislature had not delegated the authority to prepare assessment rolls to counties. The plaintiffs sought a declaration that Local Law 8-2013 was a “nullity” because the County lacked the authority to pass local laws pertaining to the preparation of assessment rolls.In an oral decision issued on January 8, 2015, the Supreme Court stated that “[u]nder the County Charter the County has an obligation to assess all property situated in [Nassau] County and liable to taxation.” The court found that “the Nassau County Charter provides that it’s the duty of the assessor to prepare the assessment rol[l].”The Supreme Court determined that the County had the authority to require owners to file income and expense statements pursuant to “both… the Municipal Home Rule Law and the Nassau County Charter.” The court concluded that Local Law 8-2013 was “not inconsistent with the New York State Constitution [or] with any general law” and that it was “a valid exercise of authority given to the County from the [S]tate.”In a judgment entered July 3, 2015, upon the oral decision, the Supreme Court declared, among other things, that the defendants were authorized to enact and enforce Local Law 8-2013. The plaintiffs appeal, arguing that the State Legislature had not expressly delegated to the County the power to prepare assessments.“As limited by the State and Federal Constitutions’ protection of individual rights and restriction of state power, the State Constitution establishes the state government as the preeminent sovereign of New York, and the three coordinate branches of the state government may exercise the entire legislative, executive and judicial power of the State” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d 606, 619; see NY Const, art III, §1; art IV, §1; art VI).“Given that the authority of political subdivisions flows from the state government and is, in a sense, an exception to the state government’s otherwise plenary power, the lawmaking power of a county or other political subdivision ‘can be exercised only to the extent it has been delegated by the State’” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 619, quoting Albany Area Bldrs. Assn. v. Town of Guilderland, 74 NY2d 372, 376; see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 399-401).“Perhaps the most significant delegation of state legislative authority is embodied in article IX of the Constitution, the home rule article” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 620). That article provides for the creation of local governmental entities and grants certain powers to local governments (see NY Const, art IX, §§1, 2; Kamhi v. Town of Yorktown, 74 NY2d 423, 428).As relevant here, article IX of the NY Constitution provides “[i]n addition to powers granted in the statute of local governments or any other law… every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to… [t]he levy, collection and administration of local taxes authorized by the legislature” (NY Const, art IX, §2[c][ii][8]).As the wording of this provision makes clear, however, this power to enact local laws applies only with respect to local taxes that have been “authorized by the legislature” (NY Const, art IX, §2[c][ii][8]). Indeed, “the Constitution expressly imbues the state government, rather than any locality, with ‘[t]he power of taxation’” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 619, quoting NY Const, art XVI, §1; see 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 NY2d 325, 333). The NY Constitution provides that “[a]ny laws which delegate the taxing power shall specify the types of taxes which may be imposed thereunder and provide for their review” (NY Const, art XVI, §1).Accordingly, “state law governs the tax field unless the state legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 619-620; see NY Const, art XVI, §1). ”[T]he delegation of any part of [the] power [of taxation] to a subdivision of the State must be made in express terms,” and the delegation of any form of taxation authority “cannot be inferred” (County Sec., Inc. v. Seacord, 278 NY 34, 37; see Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 620).“To implement article IX [of the NY Constitution], the Legislature enacted the Municipal Home Rule Law” (DJL Rest. Corp. v. City of New York, 96 NY2d 91, 94; see Municipal Home Rule Law §50[1]). The Municipal Home Rule Law sets forth the general powers of local governments to adopt and amend local laws in accordance with article IX of the NY Constitution (see Municipal Home Rule Law §10[1]; 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 NY2d at 332; Kamhi v. Town of Yorktown, 74 NY2d at 429).As relevant here, the Municipal Home Rule Law tracks the language of the NY Constitution in that it grants to a “county, city, town or village” the authority “to adopt and amend local laws… relating to… [t]he levy and administration of local taxes authorized by the legislature” (Municipal Home Rule Law §10[1][ii][a][8]). It also grants those local entities the authority “to adopt and amend local laws… relating to… [t]he collection of local taxes authorized by the legislature” (Municipal Home Rule Law §10[1][ii][a][9]). Consistent with the NY Constitution, the Municipal Home Rule Law only permits the enactment of such local laws with respect to local taxes that have been “authorized by the legislature” (Municipal Home Rule Law §10[1][ii][a][8], [9]).Municipal Home Rule Law §10 also sets forth additional powers of local governments to enact local laws (see Municipal Home Rule Law §10[1][ii][b]-[e]). These additional powers are categorized under separate subdivisions applicable to counties (see Municipal Home Rule Law §10[1][ii][b]), cities (see Municipal Home Rule Law §10[1][ii][c]), towns (see Municipal Home Rule Law §10[1][ii][d]), and villages (see Municipal Home Rule Law §10[1][ii][e]).The statute expressly gives cites, towns, and villages the authority to adopt and amend local laws relating to “[t]he preparation, making, confirmation and correction of assessments of real property” (Municipal Home Rule Law §§10[1][ii][c][2], [d][1], [e][1]). However, no similar provision was included in the subdivision applicable to the additional powers of counties (see Municipal Home Rule Law §10[1][ii][b]).Instead, the subdivision applicable to counties merely authorizes the enactment of local laws relating to the “establishment of a county tax department,” which may be permitted to, among other things, “advise with and assist all assessors, collectors and receivers of taxes of the various tax districts within the county in the discharge of their duties” (Municipal Home Rule Law §10[1][ii][b][2]). It also authorizes counties to pass local laws relating to “[t]he method for the correction of assessment rolls and tax rolls as authorized by title three of article five of the real property tax law” (Municipal Home Rule Law §10[1][ii][b][6]).The plaintiffs contend that because this section of the Municipal Home Rule Law does not give all New York counties the power to adopt and amend local laws relating to the preparation or making of assessments, the State Legislature did not give Nassau County the authority to make or prepare assessments. This contention is without merit.The Municipal Home Rule Law explicitly states that it is not the sole statutory source for local authority: “The powers herein granted shall be in addition to any other powers granted to counties by any other provisions of general or special laws, including but not limited to charters, administrative codes, special acts or local laws” (Municipal Home Rule Law §35[3]).Pursuant to article III, section 26 of the 1894 NY Constitution, the State Legislature enacted legislation in 1936, “providing an alternative form of government for certain counties and providing for the submission of the same to the electors of any such county” (L 1936, ch 879). “Nassau County elected to adopt [this] alternate form of government established by state legislation” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 612). The act became effective in Nassau County on January 1, 1938 (see Nassau County Charter, preamble; see generally Matter of Torre v. County of Nassau, 86 NY2d 421, 424).The statute provided that “the board of supervisors shall have power to… exercise powers of local legislation and administration as provided in section twenty-six of article three of the constitution of the state of New York” (L 1936, ch 879, §103[2]). Furthermore, as relevant here, the statute provided that “the board of supervisors shall have power to… make appropriations, levy taxes and incur indebtedness for the purpose of carrying out any of the powers and duties conferred or imposed on the county or any officer, board, commission or other authority thereof, by this act or otherwise by law” (L 1936, ch 879, §103[6]; see Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 612).The statute further provided that “[t]he board of supervisors may provide by ordinance a plan… for the assessment of property for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, the collection of taxes, the accrual of penalties, the sale of tax liens and the foreclosure thereof” (L 1936, ch 879, §2201; see Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 612).In addition, the statute created the Nassau County “board of assessors” (L 1936, ch 879, §601). The statute provided that “it shall be the duty of the board of assessors… to assess all property, real and personal, situated in the county” (L 1936, ch 879, §602; see Matter of Bowery Sav. Bank v. Board of Assessors, 80 NY2d 961, 964). The statute stated that “[i]t shall be the duty of the board of assessors to adopt such rules and regulations… as will establish an equitable and scientific system of assessing property for taxation” (L 1936, ch 879, §603).As the defendants point out, “the accurate determination of the full value of the property to be taxed… is critical to whatever formula or methodology is employed for ultimately arriving at the tax due” (41 Kew Gardens Rd. Assoc. v. Tyburski, 70 NY2d at 330). The Court of Appeals has recognized that “[t]he income capitalization approach is generally regarded as the preferred method for determining the value of income-producing property” (id.).In addition, the income capitalization method can be effective only with thorough data, including accurate actual income and operating expenses of the subject properties (see        id. at 331). As the defendants correctly contend, the income and expense statements at issue in this case, which were effectuated through Local Law 8-2013, serve this precise purpose and fulfill the County’s duty to “establish an equitable and scientific system of assessing property for taxation” (L 1936, ch 879, §603).Although the NY Constitution was subsequently amended in 1938, and its home rule provisions were changed, it nevertheless specifically provided that “[e]xisting laws applicable to the government of counties… shall continue in force until repealed, amended, modified or superseded by law” (1938 NY Const, art II, §26[7]). Similarly, although the home rule provisions of the NY Constitution were again amended in 1963 (see 1963 NY Const, art IX), the NY Constitution nevertheless continued to provide that “[t]he provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution” (1963 NY Constitution, art IX, §3[b]). That section of the NY Constitution remains in force to this day (see NY Const, article IX, §3[b]).Accordingly, the changes to the NY Constitution did not affect the express grant of authority from the State Legislature to the County of Nassau that was contained in the 1936 statute (see L 1936, ch 879). Subsequent statutory enactments at the state level have also explicitly preserved these existing laws. For example, Municipal Home Rule Law provides that, in enacting the statutory home rule provisions, “[i]t [was] not the intention of the legislature… to… abolish or curtail any powers or rights heretofore conferred upon or delegated to a county or counties or to any of the units of government therein or to any board, commission, body or officer thereof” (Municipal Home Rule Law §35[2][a]; see Municipal Home Rule Law §35[2][b]). Furthermore, the State Legislature specifically provided that “[a]ll existing valid provisions of laws, charters and local laws not specifically repealed by this chapter shall continue in force until lawfully repealed, amended, modified or superseded” (Municipal Home Rule Law §56[1]; see Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 616).“The Municipal Home Rule Law also permits counties to amend their charters in a manner consistent with applicable state laws and the Constitution” (Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 616). Although, pursuant to this authority, Nassau County has amended or renumbered certain provisions applicable here, it has not abdicated the powers granted to it under the 1936 law (see Nassau County Charter, §§103[7], 2201).The Board of Supervisors has been renamed the County Legislature and its powers transferred to that body (see Nassau County Charter §102). However, the County Legislature still maintains the “power to… make appropriations, levy taxes and incur indebtedness for the purpose of carrying out any of the powers and duties conferred or imposed on the county or any officer, board, commission or other authority thereof, by this act or otherwise by law” (Nassau County Charter §103[7] [renumbered by Local Law No. 2 (1954)]).The County Legislature also remains empowered to “provide by ordinance a plan… for the assessment of property for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, the collection of taxes, the accrual of penalties, the sale of tax liens and the foreclosure thereof” (Nassau County Charter §2201 [amended by L 1951, ch 607]).In addition, although the authority of the board of assessors has been vested in the Department of Assessment, headed by the County Assessor (The Nassau County Charter §§601, 608), the duties of the board of assessors have been transferred to that office (The Nassau County Charter §608). The duties of the County Assessor thus include “the duty… to assess all property situated in the County” (The Nassau County Charter §602), and “to adopt such rules and regulations as will establish an equitable and scientific system of assessing property for taxation” (The Nassau County Charter §603). These are the same powers granted to the County by the State Legislature in 1936 (see L 1936, ch 879).In view of the foregoing, we conclude that these provisions of the Nassau County Charter, duly enacted by the State Legislature, still have the force and effect of a statute (see Korn v. Gulotta, 72 NY2d 363, 373 ["the governing statute in this case is the Nassau County Charter enacted by the State Legislature in 1936"]; Matter of Town of N. Hempstead v. County of Nassau, 103 AD3d 734, 735 ["the County Comptroller may properly audit the subject park district pursuant to the authority granted to county comptrollers by the New York State Legislature pursuant to L 1936, ch 879, §402(6), which Nassau County later adopted"]).Accordingly, contrary to the plaintiffs’ contention, these provisions of the Nassau County Charter constitute an express and unambiguous delegation of the authority to make and prepare real property tax assessments from the State Legislature to Nassau County in accordance with the NY Constitution (see NY Const, art XVI, §1; Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 NY3d at 619-620; County Sec., Inc. v. Seacord, 278 NY at 37). Since Local Law 8-2013 unquestionably relates to the authority to make and prepare tax assessments, and since the County Legislature has the authority to enact local laws related to that purpose, the Supreme Court properly declared that the defendants were authorized to enact and enforce Local Law 8-2013.MASTRO, J.P., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.