Appellate Division Second Department Hand Down List decided on: January 24, 2018 By Dillon, J.P.; Cohen, Connolly and Christopher, JJ.

MATTER of First American Title Insurance Company pet-res, v. Ronald v. Kenderian, appellant res — (Index No. 32286/16)In a turnover proceeding pursuant to CPLR 5225(b), Ronald V. Kenderian appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated August 12, 2016, as granted the petition to the extent of directing JP Morgan Chase Bank, N.A., to turn over the contents of a safe deposit box maintained jointly by him and Trude S. Bouton and the funds in any account held in his name or jointly by him and Trude S. Bouton.ORDERED that the order is affirmed insofar as appealed from, with costs.In October 1990, Ronald V. Kenderian (hereinafter the appellant) filed a petition for bankruptcy in the United States Bankruptcy Court for the District of New Jersey. In January 1991, the petitioners commenced an adversarial proceeding against the appellant seeking an exception to a discharge in bankruptcy pursuant to 11 USC §523(b). In June 1991, the Bankruptcy Court granted an exception to discharge and further granted summary judgment on liability in favor of the petitioners. Thereafter, the parties agreed to fix damages, and an Order of Final Judgment and Enforcement of Settlement (hereinafter the Final Judgment) was entered in the Bankruptcy Court on March 8, 1993. The total amount of damages set forth in the Final Judgment was $415,000. On November 28, 2012, the petitioners filed an affidavit and supporting papers with the Superior Court of New Jersey, Law Division, Mercer County, in support of an application to docket the Final Judgment. The Final Judgment in the amount of $415,000 was docketed in the Superior Court of New Jersey on November 28, 2012. On October 13, 2015, pursuant to CPLR 5402, the petitioners filed with the Rockland County Clerk an affidavit and supporting papers for the purpose of filing the Final Judgment in the Supreme Court, Rockland County.In June 2016, the petitioners commenced this turnover proceeding pursuant to CPLR 5225(b) to direct JP Morgan Chase Bank, N.A. (hereinafter Chase), to turn over the contents of a safe deposit box maintained jointly by the appellant and Trude B. Bouton and the funds in accounts held in the name of the appellant or Bouton to satisfy the Final Judgment. The Supreme Court granted the petition to the extent of directing Chase to turn over the contents of the safe deposit box maintained jointly by the appellant and Bouton and the funds in any account held in the appellant’s name or jointly by the appellant and Bouton.Contrary to the appellant’s contentions, the petitioners properly filed the Final Judgment with the Rockland County Clerk on October 13, 2015. At the time of filing, the Final Judgment was extant, as it had been revived and docketed in the Superior Court of New Jersey in November 2012, during its 20-year life span (see NJ Stat Ann §§2A:14-5; 2A:17-3; Adamar of New Jersey, Inc. v. Mason, 399 NJ Super 63, 942 A2d 878). Accordingly, the Supreme Court was entitled to treat the Final Judgment as a judgment of the Supreme Court of this state (see CPLR 5402[b]) and, thereupon, properly directed Chase to turn over the contents of the safe deposit box and the funds in the accounts held jointly by the appellant and Bouton (see CPLR 5225; Matter of Signature Bank v. HSBC Bank USA, N.A., 67 AD3d 917, 918).The appellant’s remaining contentions either are without merit or have been rendered academic by our determination.DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Leventhal, Hinds-Radix and Lasalle, JJ.Barry Crupi, res, v. Syed Rashid ap — (Index No. 100133/14)Ted Mozes PLLC, Spring Valley, NY (Ted T. Mozes of counsel), for appellants.Howard M. File, Esq., P.C., Staten Island, NY, for respondent.In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal, by permission, from an order of the Supreme Court, Richmond County (McMahon, J.), dated March 14, 2016, which, sua sponte, precluded the incarcerated defendant, Syed Rashid, from testifying at trial.ORDERED that the order is reversed, on the law, with costs.The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion (see Dimoulas v. Roca, 120 AD3d 1293, 1295; Zakhidov v. Boulevard Tenants Corp., 96 AD3d 737, 739). The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that (see        Zakhidov v. Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3126:8). Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v. Boulevard Tenants Corp., 96 AD3d at 739; Cianciolo v. Trism Specialized Carriers, 274 AD2d 369, 370).Here, on this record, there is no evidence demonstrating either that the incarcerated defendant, Syed Rashid, willfully and contumaciously failed to be deposed, or that his attorney failed to secure his deposition (see Brodsky v. Amber Ct. Assisted Living, LLC, 147 AD3d 810; Zakhidov v. Boulevard Tenants Corp., 96 AD3d at 738; Patel v. DeLeon, 43 AD3d 432, 432-433; Cianciolo v. Trism Specialized Carriers, 274 AD2d at 370).The plaintiff’s remaining contentions are either without merit or academic in light of our determination.Accordingly, the Supreme Court erred in issuing its order precluding the incarcerated defendant from testifying at trial.DILLON, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.By Mastro, J.P.; Roman, Miller and Connolly, JJ.Northern Blvd Corona, LLC, plf-res, v. Northern Blvd Property, LLC ap, et al., def; North Boulevard Property, LLC, et al., nonparty-res — (Index No. 704265/13)In an action to foreclose a mortgage, the defendants Northern Blvd Property, LLC, and Yourik Atakhanian appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Queens County (D. Hart, J.), entered June 11, 2015, as granted the motion of nonparties North Boulevard Property, LLC, and Melrose Credit Union to vacate a temporary restraining order contained in an order to show cause of the same court (Mayersohn, J.) dated April 3, 2015, and (2), by permission, from so much of the same order as, sua sponte, inter alia, deemed the subject property to have been sold as one parcel as of July 11, 2014, the date of the foreclosure sale.ORDERED that the appeal from so much of the order as granted the motion of nonparties North Boulevard Property, LLC, and Melrose Credit Union to vacate the temporary restraining order contained in the order to show cause dated April 3, 2015, is dismissed as academic; and it is further,ORDERED that the order is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.In May 2014, a judgment of foreclosure and sale was entered in this action upon the failure of the defendant mortgagor, Northern Blvd Property, LLC, and its managing member, the defendant Yourik Atakhanian (hereinafter together the appellants), to answer the complaint. The judgment of foreclosure and sale, inter alia, directed that the subject premises, which consisted of three lots, be sold at public auction “in multiple parcels or in bulk.” The appellants’ motion to vacate the judgment of foreclosure and sale and for leave to serve a late answer was denied, and that denial was affirmed on appeal (see Community Preservation Corporation v. Northern Blvd Property, LLC, 140 AD3d 689).On July 11, 2014, the property was sold at public auction to third-party purchasers for a total purchase price of $10.3 million. On December 31, 2014, the foreclosure sale closed and a referee’s deed was issued to nonparty North Boulevard Property, LLC (hereinafter North Boulevard), as assignee of the third-party purchasers.On April 3, 2015, the appellants moved by order to show cause to vacate and set aside the referee’s deed, inter alia, on the ground that, prior to the foreclosure sale, the three parcels had been merged into one tax lot and therefore the property, which was improved by a mixed-use building spanning all three parcels, could not practically be sold as three separate parcels as permitted by the judgment of foreclosure and sale. The appellants further alleged that the successful bidders had colluded to rig the bids. The order to show cause also included a temporary restraining order (hereinafter the TRO) enjoining North Boulevard and all persons acting on its behalf from further selling or further encumbering the property.Thereafter, North Boulevard and its lender, nonparty Melrose Credit Union (hereinafter MCU), made an emergency application to vacate the TRO, inter alia, on the ground of lack of personal jurisdiction. In the order appealed from, the Supreme Court granted the motion to vacate the TRO contained in the order to show cause dated April 3, 2015, and, in addition, sua sponte, inter alia, deemed the property to have been sold as one parcel as of the date of the foreclosure sale. In a subsequent order, the court, inter alia, denied the appellants’ motion to vacate and set aside the referee’s deed (see Northern Blvd Corona, LLC v. Northern Blvd Property, LLC, __ AD3d __ [Appellate Div. Docket No. 2016-01317; decided herewith]).CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (see Grskovic v. Holmes, 111 AD3d 234; U.S. Bank N.A. v. Eaddy, 109 AD3d 908). In addition, CPLR 5019(a) gives trial courts the discretion to cure mistakes, defects, and irregularities that do not affect substantial rights of parties (see Bessa v. Anflo Indus., Inc., 148 AD3d 974; US Bank, N.A. v. Steele, 142 AD3d 1161; U.S. Bank N.A. v. Eaddy, 109 AD3d at 910). Here, the appellants failed to establish that a substantial right of theirs was prejudiced by the court’s sua sponte, inter alia, deeming the property to have been sold as one lot as of July 11, 2014 (see US Bank, N.A. v. Steele, 142 AD3d 1161; South Point, Inc. v. Rana, 139 AD3d 936; Matrix Fin. Servs. Corp. v. McKiernan, 13 AD3d 344).Under the circumstances, the appeal from so much of the order as granted the motion to vacate the TRO must be dismissed as academic (see Needleman v. Tornheim, 106 AD3d 707, 708-709; Matter of Dent-X Paintless Dent Removal v. Wissemann, 238 AD2d 588).MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.By Mastro, J.P.; Roman, Miller and Connolly, JJ.Northern Blvd Corona, LLC, plf-res, v. Northern Blvd Property, LLC ap, et al., def; North Boulevard Property, LLC, et al., nonparty-res — (Index No. 704265/13)In an action to foreclose a mortgage, the defendants Northern Blvd Property, LLC, and Yourik Atakhanian appeal from (1) a deficiency judgment and order confirming a referee’s report of sale (one paper) of the Supreme Court, Queens County (D. Hart, J.), entered January 12, 2016, upon their failure to answer the complaint, and (2) an order of the same court entered March 8, 2016, which denied their motion, inter alia, to vacate a referee’s deed in foreclosure dated December 31, 2014.ORDERED that the appeal from the deficiency judgment and order confirming the referee’s report of sale is dismissed, as no appeal lies from an order or judgment entered upon the default of the appealing party (see CPLR 5511); and it is further,ORDERED that the order is affirmed, and it is further,ORDERED that one bill of costs is awarded to respondents appearing separately and filing separate briefs.A court may exercise its inherent equitable power to ensure that a foreclosure sale conducted pursuant to a judgment of foreclosure “is not made the instrument of injustice” (Guardian Loan Co. v. Early, 47 NY2d 515, 520; see PII Sam, LLC v. Koutsagelos, 119 AD3d 846; Golden Age Mtge. Corp. v. Argonne Enters., LLC, 68 AD3d 925; 3-30 Bergman on New York Mortgage Foreclosures §30.06) and, therefore, may set aside a foreclosure sale “‘where fraud, collusion, mistake, or misconduct casts suspicion on the fairness of the sale’” (Alkaifi v. Celestial Church of Christ Calvary Parish, 24 AD3d 476, 477, quoting Fleet Fin. v. Gillerson, 277 AD2d 279, 280; see Bank of N.Y. v. Segui, 91 AD3d 689). Absent such conduct, the mere inadequacy of price is an insufficient reason to set aside a sale unless the price is so inadequate as to shock the court’s conscience (see Dime Sav. Bank of N.Y. v. Zapala, 255 AD2d 547; Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 AD2d 400). ”[I]n most instances,” the fair market value of a mortgaged property “will exceed the winning bid” on that property at a foreclosure sale (Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 AD2d at 407; see U.S. Bank N.A. v. Testa, 140 AD3d 855).Here, the appellants moved, inter alia, to vacate the referee’s deed, arguing that it should be set aside because the defendant Yourik Atakhanian overheard the successful bidders conspiring to rig the bidding at the public auction. The appellants’ evidence, however, was improperly submitted for the first time in reply to the plaintiff’s opposition to their motion (see Constantine v. Premier Cab Corp., 295 AD2d 303).Contrary to the appellants’ contention, the delay in closing title does not provide an equitable basis to set aside the sale (see Bank of N.Y. v. Segui, 91 AD3d 689), and their conduct demonstrates that they contributed to the delay (see id. at 690-691).Documentary evidence in the form of a letter of intent submitted by the appellants to support their claim that the property had a value of $15 million was likewise improperly submitted for the first time in their reply papers. The appellants failed to cast suspicion on the fairness of the sale (see PII Sam, LLC v. Koutsagelos, 119 AD3d at 846), and the sale price of $10.3 million was not so inadequate as to shock the conscience of the court (see U.S. Bank N.A. v. Testa, 140 AD3d at 857; Dime Sav. Bank of N.Y. v. Zapala, 255 AD2d at 648).MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.By Leventhal, J.P.; Cohen, Hinds-Radix and Lasalle, JJ.PEOPLE, etc., res, v. Earl Watson, ap — (Ind. No. 4828/11)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 15, 2014 (People v. Watson, 121 AD3d 921), affirming a judgment of the Supreme Court, Kings County, rendered July 30, 2012.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., COHEN, HINDS-RADIX and LASALLE, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Saint Annes Development Company, etc., res, v. Jay Edmund Russ ap — (Index No. 67669/14)In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County (Garguilo, J.), dated December 14, 2015, which denied their motion to compel the production of certain documents.ORDERED that the order is affirmed, with costs.The plaintiff objected to certain of the defendants’ discovery requests on the ground that the requested documents, which related to communications among the plaintiff, its attorney, and its assignors, were protected by the common-interest privilege. The defendants moved to compel the production of these documents, arguing that the common-interest privilege did not apply. Following an in camera review of the documents, the Supreme Court denied the defendants’ motion.The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v. State of Cal. Franchise Tax Bd., 105 AD3d 186, 205; Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s, London, 176 Misc 2d 605, 611 [Sup Ct, NY County], affd 263 AD2d 367; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [Bankr SD NY]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v. State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v. Morrison, 69 AD3d 669; U.S. Bank N.A. v. APP Intl. Fin. Co., 33 AD3d 430, 431). ”The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” (Hyatt v. State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v. Doe, 429 F3d 450, 453 [3d Cir]; F.D.I.C. v. Ogden Corp., 202 F3d 454, 461 [1st Cir]). Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” (Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 620; see Hyatt v. State of Cal. Franchise Tax Bd., 105 AD3d at 205).Here, the Supreme Court properly denied the defendants’ motion to compel the production of the subject documents, as these documents were protected by the common-interest privilege.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Leventhal, J.P.; Chambers, Maltese and Duffy, JJ.Countrywide Home Loans, Inc., res, v. Kirk Gibson def, Brett Jones, ap — (Index No. 2427/08)In an action to foreclose a mortgage, the defendant Brett Jones appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated March 20, 2015, which granted the plaintiff’s motion pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law against him.ORDERED that the order is affirmed, with costs.In 2004, the defendant Brett Jones borrowed the sum of $337,455 from Option One Mortgage Corporation. The loan was secured by a mortgage on the subject property (hereinafter the Option One mortgage). Two years later, after defaulting on the Option One mortgage, Jones turned to MAI Management and Redemption, LLC (hereinafter MAI), for help in avoiding foreclosure. MAI located the defendant Kirk Gibson, who, for a fee, agreed to purchase the subject property from Jones and obtain a new mortgage to finance the purchase.At the closing on November 13, 2006, a portion of the proceeds was used to pay off the Option One mortgage, and a satisfaction of mortgage discharging the Option One mortgage was issued. Gibson obtained two loans from the defendant Premium Capital Funding, LLC, doing business as TopDot Mortgage (hereinafter TopDot), in the amounts of $524,000 and $131,000, respectively. The larger loan was secured by a first mortgage on the subject property (hereinafter the TopDot mortgage), and the smaller loan was secured by a second mortgage.Gibson subsequently defaulted on his mortgage payments, and the plaintiff, as successor-in-interest to TopDot, commenced this action in 2008 to foreclose the TopDot mortgage. Jones answered the complaint, asserting, inter alia, affirmative defenses that the plaintiff lacked standing, that the Option One mortgage was not paid off, and that the plaintiff was “perpetuating the fraud perpetrated upon [him],” as well as a counterclaim alleging that the deed by which Jones conveyed the subject property to Gibson was a forgery.At a nonjury trial, the plaintiff offered the testimony of Nathan Musick, an assistant vice president of Bank of America National Association (hereinafter Bank of America). In relevant part, Musick testified that he is the authorized custodian of the original note relating to the TopDot mortgage, which has been kept in the regular course of Bank of America’s business. Musick further confirmed, based on information contained in a database created by the plaintiff and transferred to Bank of America when the plaintiff was absorbed by merger into Bank of America’s corporate structure, that the plaintiff took possession of the original note on November 28, 2006, before this action was commenced.The plaintiff also offered the testimony of Steven Vasco, the notary public who witnessed the signatures of Jones and Gibson on the November 13, 2006, deed transferring the subject property to Gibson. Although Vasco had no independent recollection of the closing, he confirmed his signature and notary stamp on the deed, and explained the procedure he usually follows in verifying the identity of signatories.Jones testified on his own behalf. In relevant part, he conceded that the grantor’s signature appearing on the November 13, 2006, deed “look[ed] like” his, but maintained that he “would never sell [his] home” or “give [his] home away.” He acknowledged receiving $56,675.82 from the 2006 refinancing transaction, and confirmed that, after the refinancing, he never again received another invoice or demand regarding the Option One mortgage.At the close of evidence, the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law against Jones. The court granted the motion, and Jones appeals.In reviewing a determination made after a nonjury trial, this Court’s power is as broad at that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; International Exterior Fabricators, LLC v. Decoplast, Inc., 128 AD3d 1016, 1019).“Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue” (CPLR 4401). ”A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v. Pilat, 90 NY2d 553, 556; see Geeta Temple-Ashram v. Satyanandji, 142 AD3d 1132, 1134). In considering such a motion, the trial court must afford the nonmoving party every inference that may properly be drawn from the facts presented (see Szczerbiak v. Pilat, 90 NY2d at 556; Geeta Temple-Ashram v. Satyanandji, 142 AD3d at 1134).On appeal, Jones no longer contends that the 2006 deed was forged. Insofar as Jones contends that he was fraudulently induced into entering into the 2006 refinancing based on misrepresentations that the Option One mortgage would be paid off, his contention is belied by the unchallenged documentary evidence, as well as Jones’s own testimony, all of which support the conclusion that the Option One mortgage was, in fact, satisfied in 2006. Accordingly, even considering the evidence in the light most favorable to Jones, there was no rational process by which the court, as the trier of fact, could have found that the Option One mortgage was not satisfied (see Szczerbiak v. Pilat, 90 NY2d at 556).Moreover, insofar as Jones alleges fraud in the factum with respect to the 2006 deed, i.e., that he “was induced to sign something entirely different than what he thought he was signing” (First Natl. Bank of Odessa v. Fazzari, 10 NY2d 394, 397), the trial evidence failed to substantiate his claim. ”Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written” (Anderson v. Dinkes & Schwitzer, P.C., 150 AD3d 805, 806). No such circumstances were shown in this case. Thus, upon the evidence presented at trial, there is no rational process by which the trier of fact could base a finding in favor of Jones on a theory of fraud in the factum (see Szczerbiak v. Pilat, 90 NY2d at 556).Contrary to Jones’s contention, the plaintiff established its standing by showing that it took possession of the subject note, endorsed in blank, on November 28, 2006, well before this action was commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 362).Jones’s remaining contentions are without merit.LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.David Figueroa, ap, v. MTLR Corp. res — (Index No. 3132/15)In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated October 13, 2016, as denied that branch of his motion which was for summary judgment on the issue of liability against the defendants Ivor G. Alert and Foodsaver New York, Inc., with leave to renew upon the completion of discovery.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants Ivor G. Alert and Foodsaver New York, Inc., is granted.On December 16, 2014, at approximately 3:00 p.m., the plaintiff, an employee of nonparty New York City Transit Authority, was operating a bus in the course of his employment when the bus allegedly was struck in the rear by a vehicle owned by the defendant MTLR Corp., which was leased by the defendant Foodsaver New York, Inc. (hereinafter Foodsaver), and operated by the defendant Ivor G. Alert, on Fulton Street near its intersection with St. James Place in Brooklyn. Thereafter, the plaintiff commenced this action, inter alia, to recover damages for personal injuries. Before the completion of discovery, the plaintiff moved, among other things, for summary judgment on the issue of liability against Alert and Foodsaver. In the order appealed from, the Supreme Court, inter alia, denied that branch of the plaintiff’s motion, with leave to renew upon the completion of discovery.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; Nikolic v. City-Wide Sewer & Drain Serv. Corp., 150 AD3d 754). ”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” (Phillip v. D&D Carting Co., Inc., 136 AD3d 18, 22; see Ortiz v. Welna, 152 AD3d 709; Ricciardi v. Nelson, 142 AD3d 492; Bowen v. Farrell, 140 AD3d 1001; Roberts v. Zirkind, 140 AD3d 940). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability against Alert and Foodsaver through the submission of his own affidavit, in which he averred that the bus he was operating was stopped when it was struck in the rear by the vehicle operated by Alert. This affidavit demonstrated, prima facie, that Alert was negligent and that the plaintiff was not comparatively at fault in the happening of the subject accident (see Nikolic v. City-Wide Sewer & Drain Serv. Corp., 150 AD3d at 754; Comas-Bourne v. City of New York, 146 AD3d 855, 856).In opposition, Alert and Foodsaver did not raise a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, nor did they set forth a nonnegligent explanation for it (see Nowak v. Benites, 152 AD3d 613; Comas-Bourne v. City of New York, 146 AD3d at 856; see also Waide v. ARI Fleet, LT, 143 AD3d 975, 975; Cajas-Romero v. Ward, 106 AD3d 850, 852). Furthermore, the plaintiff’s motion was not premature. Alert and Foodsaver failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see Bentick v. Gatchalian, 147 AD3d 890, 891; Turner v. Butler, 139 AD3d 715, 716). ”The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Lopez v. WS Distrib., Inc., 34 AD3d 759, 760; see        Bentick v. Gatchalian, 147 AD3d at 892).Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against Alert and Foodsaver.CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Forestal Condominium, ap, v. Albert Davydov, res — (Index No. 2815/15)In an action, inter alia, for declaratory and injunctive relief, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Butler, J.), entered December 1, 2016, as denied its motion for summary judgment on the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff, the owner of a condominium building located in Forest Hills, commenced this action against the defendant, an owner of one of the units in the building (hereinafter the subject apartment), for a judgment declaring that the defendant violated the plaintiff’s by-laws by performing alterations to the subject apartment without the plaintiff’s permission, to enjoin the defendant from conducting any further construction on the subject apartment in violation of the by-laws, and for costs and attorneys’ fees incurred in commencing this action.The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and the cross motion. The plaintiff appeals from so much of the order as denied its motion.“Condominium ownership is a hybrid form of real property ownership, created by statute” (Board of Mgrs. of Vil. View Condominium v. Forman, 78 AD3d 627, 629; see Real Property Law art 9-B; Caprer v. Nussbaum, 36 AD3d 176, 183). The administration of the condominium’s affairs is governed principally by its by-laws, “which are, in essence, an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium’s common elements” (Schoninger v. Yardarm Beach Homeowners’ Assn., 134 AD2d 1, 6; see Real Property Law §339-v; Board of Mgrs. of Vil. View Condominium v. Forman, 78 AD3d at 629; Murphy v. State of New York, 14 AD3d 127, 133).Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Village at Corbin Hill Condominium II v. Ungaro, 74 AD3d 958; Board of Mgrs. of Stewart Place Condominium v. Bragato, 15 AD3d 601, 602). While article VI, section 12, of the plaintiff’s by-laws specified that a unit owner could not make any structural addition, alteration, or improvement to his or her unit without the prior written consent of the plaintiff’s board of managers, it also provided that the plaintiff’s board of managers had 30 days to answer any written request after receipt of such request, and that the failure to respond within that time frame would constitute consent to the proposed addition, alteration, or improvement. The plaintiff’s submissions failed to eliminate all triable issues of fact as to what requests the defendant made of the plaintiff, and what responses, if any, were provided by the plaintiff (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Since the plaintiff failed to meet its prima facie burden, it is unnecessary to determine whether the papers submitted by the defendant in opposition were sufficient to raise a triable issue of fact (see id. at 853).Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Roman, Miller and Connolly, JJ.MSMJ Realty, LLC, ap, v. DLJ Mortgage Capital, Inc., def — (Index No. 511528/15)In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated March 7, 2016, which denied its unopposed motion, in effect, for leave to enter a default judgment against the defendant upon its failure to appear or answer the complaint and, sua sponte, directed dismissal of the complaint.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is reversed, on the law, without costs or disbursements, the plaintiff’s motion, in effect, for leave to enter a default judgment against the defendant upon its failure to appear or answer the complaint is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment canceling and discharging of record the subject mortgage.In June 2006, Michelle Vassallo borrowed the sum of $540,000 from Credit Suisse Financial Corporation (hereinafter Credit Suisse). The loan was evidenced by a note and secured by a mortgage on real property in Brooklyn. Credit Suisse subsequently assigned the note and mortgage to DLJ Mortgage Capital, Inc. (hereinafter DLJ).In May 2009, DLJ commenced an action against Vassallo and others to foreclose the mortgage (hereinafter the 2009 action). Thereafter, MSMJ Realty, LLC (hereinafter MSMJ), purchased the subject property from Vassallo. In an order dated July 23, 2015, the Supreme Court, after a hearing to determine the validity of service of process, inter alia, directed dismissal of the complaint insofar as asserted against Vassallo for lack of personal jurisdiction.In September 2015, MSMJ commenced this action pursuant to RPAPL 1501(4) against DLJ to cancel and discharge of record the mortgage. DLJ failed to appear or answer the complaint. Thereafter, MSMJ moved, in effect, for leave to enter a default judgment against DLJ, arguing that the mortgage was unenforceable, since the debt had been accelerated and the six-year limitations period for the commencement of an action to foreclose the mortgage had expired. DLJ did not oppose the motion. In an order dated March 7, 2016, the Supreme Court denied the motion and, sua sponte, directed dismissal of the complaint, in effect, for failure to state a cause of action. MSMJ appeals, and we reverse.RPAPL 1501 provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage… has expired,” any person with an estate or interest in the property may maintain an action “to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom” (RPAPL 1501[4]; see JBR Constr. Corp. v. Staples, 71 AD3d 952, 953). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). ”[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605; see Plaia v. Safonte, 45 AD3d 747, 748; Koeppel v. Carlandia Corp., 21 AD3d 884; Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d 892, 894).Here, MSMJ demonstrated its entitlement to a default judgment against DLJ by submitting proof of service of the summons and complaint, proof that DLJ failed to timely answer or appear, and proof of the facts constituting the cause of action (see CPLR 3215[f]; HSBC Bank USA v. Angeles, 143 AD3d 671, 673; HSBC Bank USA, N.A. v. Traore, 139 AD3d 1009, 1011; Deutsche Bank Natl. Trust Co. v. Rauf, 139 AD3d 789, 789-790), i.e., that the six-year limitations period expired prior to commencement of the instant action (see U.S. Bank N.A. v. Barnett, 151 AD3d 791). The filing of the summons and complaint in the 2009 action was sufficient to accelerate the mortgage (see Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 658). Contrary to the Supreme Court’s determination, although a lender may revoke its election to accelerate the mortgage, the dismissal of the prior foreclosure action did not constitute an affirmative act by the lender revoking its election to accelerate, and the record is barren of any affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the 2009 action (see Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 987; Clayton Natl. v. Guldi, 307 AD2d 982; EMC Mtge. Corp. v. Patella, 279 AD2d at 606; Federal Natl. Mtge. Assn. v. Mebane, 208 AD2d at 894).Accordingly, MSMJ’s unopposed motion, in effect, for a default judgment against DLJ should have been granted, and the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment canceling and discharging of record the subject mortgage.MASTRO, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Maria Giamundo, ap, v. Cleveland Dunn 2nd, et al., def, Karen A. Sauter Insurance Agency, Inc. res — (Index No. 22574/12)Steven L. Barkan P.C., Melville, NY, for appellant.Saretsky Katz & Dranoff LLP, New York, NY (Patrick J. Dellay of counsel), for respondents.In an action to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered August 13, 2015, which granted the motion of the defendants Karen A. Sauter Insurance Agency, Inc., and State Farm Mutual Automobile Insurance Company for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Karen A. Sauter Insurance Agency, Inc., and State Farm Mutual Automobile Insurance Company is denied.While operating a vehicle insured by the defendant State Farm Mutual Automobile Insurance Company (hereinafter State Farm), the plaintiff was involved in an accident and allegedly sustained serious injuries when her car collided with a car driven by the defendant Robert Earl Dunn. The plaintiff sought to collect on the supplementary uninsured/underinsured (hereinafter SUM) coverage provided for in her automobile insurance policy procured through the defendant Karen A. Sauter Insurance Agency, Inc. (hereinafter the Agency). State Farm, however, denied the plaintiff’s claim on the ground that Dunn’s vehicle was insured with bodily injury liability limits equal to or exceeding the plaintiff’s SUM coverage limits. Subsequently, the plaintiff commenced this action, alleging, inter alia, negligence against the Agency and State Farm (hereinafter together the defendants) for procuring and offering insufficient SUM coverage. Following the completion of discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion. The plaintiff appeals.An insurance broker may be held liable under theories of breach of contract or negligence for failing to procure insurance upon a showing by the insured that the agent or broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction (see Siekkeli v. Mark Mariani, Inc., 119 AD3d 766, 768; Bedessee Imports, Inc. v. Cook, Hall & Hyde, Inc., 45 AD3d 792, 793-794).Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because they submitted insufficient evidence that they procured the amount of coverage that the plaintiff engaged them to procure (see Siekkeli v. Mark Mariani, Inc., 119 AD3d at 768; Gagliardi v. Preferred Mut. Ins. Co., 102 AD3d 741; Jual Constr. Ltd. v. A.C. Edwards, Inc., 74 AD3d 1150; Trizzano v. Allstate Ins. Co., 7 AD3d 783). Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff’s opposing papers (see        Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. David Newbeck, ap — (Ind. No. 2597/10)Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.Timothy Sini, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered July 14, 2014, convicting him of murder in the second degree and hindering prosecution in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to his friend.ORDERED that the judgment is affirmed.The defendant made statements to his friend concerning the victim’s death. The friend reported these statements to the police, and the defendant was subsequently arrested. Prior to trial, the defendant sought to suppress the statements he made to his friend on the ground that his friend acted as an “agent of the police” to obtain evidence in violation of the defendant’s right to counsel. The County Court declined to suppress these statements.Contrary to the defendant’s contention, his friend did not act as an agent of the police in violation of the defendant’s right to counsel. ”[W]ithout the government directing the individual to the defendant, assisting the individual in obtaining statements, or making some prearranged deal, the individual who ultimately provides information to a passive governmental entity cannot be considered an agent of the government” (People v. Johnson, 303 AD2d 830, 833; see People v. Cardona, 41 NY2d 333, 335; People v. Melendez, 285 AD2d 819, 822). Here, the defendant’s friend provided the information to the police on his own initiative, and the government’s role was one of “mere acceptance” of information (People v. Cardona, 41 NY2d at 335). Although the defendant’s friend had “a self-interest in obtaining better treatment from the government,” this did not thereby automatically make him “an agent of the government” (id.). Thus, the County Court did not err in denying that branch of the defendant’s omnibus motion which was to suppress statements he made to his friend.The defendant further contends that certain testimony the prosecutor elicited from a witness violated his Sixth Amendment right to confrontation and deprived him of a fair trial. This contention is without merit. The witness’s testimony did not imply that the nontestifying codefendant, who was tried separately, implicated the defendant as the perpetrator (cf. People v. Nesbitt, 77 AD3d 854, 856; People v. Jones, 305 AD2d 698, 699).The defendant’s contentions regarding alleged prosecutorial misconduct during summation are largely unpreserved for appellate review (see CPL 470.05[2]; People v. Rosario, 149 AD3d 982, 983; People v. Morel, 297 AD2d 757, 757). In any event, although some remarks were improper, they were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Rosario, 149 AD3d at 983; People v. Ward, 106 AD3d 842, 843).HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.Deutsche Bank National Trust Company, etc., ap, v. Juan Acevedo, respondent def — (Index No. 503781/13)Henry Kohn, Brooklyn, NY, for respondent.Appeal by the plaintiff from an order of the Supreme Court, Kings County (Robin S. Garson, J.), dated February 25, 2016. The order granted the motion of the defendant Juan Acevedo to restore to the calendar his prior motion to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction and to cancel the notice of pendency against the subject property, and thereupon, to grant the prior motion.ORDERED that the order is modified, on the law, by deleting the provision thereof granting the prior motion of the defendant Juan Acevedo to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction and to cancel the notice of pendency against the subject property, and substituting therefor a provision denying the prior motion; as so modified, the order is affirmed, with costs.The defendant Juan Acevedo (hereinafter the defendant) executed a note that was secured by a mortgage on residential property located in Brooklyn. Thereafter, the plaintiff, alleging that it was the successor in interest to the lender, commenced this action to foreclose the mortgage against the defendant, among others. Service of the summons and complaint allegedly was made on the defendant on July 26, 2013.On August 26, 2014, the defendant served a verified answer with affirmative defenses and counterclaims, wherein he asserted, inter alia, the affirmative defense of lack of personal jurisdiction. By letter dated September 3, 2014, the plaintiff, appearing by its former attorneys, wrote to the defendant’s attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected as “excessively overdue and far beyond the time limits mandated by the law.” Then, on September 24, 2014, the plaintiff, appearing by different attorneys, served a verified reply to the counterclaims.In December 2014, more than 60 days after service of the defendant’s verified answer with affirmative defenses and counterclaims, and more than 60 days after the plaintiff served the defendant with a verified reply to the counterclaims, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction based on improper service and to cancel the notice of pendency against the subject property. The plaintiff opposed the defendant’s motion, arguing, among other things, that the defendant waived the defense of lack of personal jurisdiction based on improper service by failing to move for judgment on that ground within 60 days after serving the answer. This motion was marked off the calendar.Subsequently, the defendant moved to restore his prior motion to the calendar, and thereupon, to grant the motion. The plaintiff opposed the motion, again arguing, inter alia, that the defendant waived this defense pursuant to CPLR 3211(e). The Supreme Court granted the defendant’s motion. The plaintiff appeals.Although the Supreme Court properly granted that branch of the defendant’s motion which was to restore, the court should not have thereupon granted his prior motion.“[A]n objection that the summons and complaint… was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship” (CPLR 3211[e]). Here, the defendant failed to move for judgment on the ground of lack of personal jurisdiction based on improper service within 60 days after his answer was served. Additionally, he failed to made an adequate showing of undue hardship that prevented the making of the motion within the requisite statutory period. Although the plaintiff, appearing by its former attorneys, wrote to the defendant’s attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected, this Court has indicated that a “purported rejection of the defendants’ answer did not extend the 60-day time limit” (Dimond v. Verdon, 5 AD3d 718, 719). Further, less than one month after the defendant’s verified answer with affirmative defenses and counterclaims was served, the plaintiff’s responsive pleading was served. Under these circumstances, the defendant waived his objection to personal jurisdiction based on improper service (see        id. at 719; see also Warsowe Acquisition Corp. v. DeNoble, 116 AD3d 949, 950; Reyes v. Albertson, 62 AD3d 855, 855).LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Crifasi Real Estate, Inc., ap, v. Nancy Galasso, et al., res — (Index No. 16565/09)Appeal from a judgment of the Supreme Court, Queens County (Orin R. Kitzes, J.), entered September 14, 2015. The judgment, insofar as appealed from, upon (1) an order of that court dated December 23, 2009, granting that branch of the motion of the defendants Nancy Galasso and Amber Associates of NYC, LLC, which was pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against Amber Associates of NYC, LLC, (2) an order of that court dated September 3, 2014, inter alia, denying the plaintiff’s motion for summary judgment on the complaint in the principal sum of $324,493.48 against the defendants Nancy Galasso and Amber Associates, Ltd., and (3) a decision of that court, made after a nonjury trial, is in favor of the plaintiff against only the defendant Amber Associates, Ltd., in the principal sum of only $74,701.45, and dismissed the amended complaint insofar as asserted against the defendants Nancy Galasso and Amber Associates of NYC, LLC.ORDERED that the judgment is affirmed insofar as appealed from, with costs.The plaintiff commenced this action to recover a real estate brokerage commission pursuant to an exclusive listing agreement dated January 22, 2008 (hereinafter the ELA). The ELA, which consisted of a pre-printed, one-page form with handwritten changes made by the defendant Nancy Galasso, provided, in relevant part, that “[t]he undersigned” agreed to pay a commission to the plaintiff in the event the subject property “is sold or leased.” The agreed commission was five percent of the first three years’ rent and two percent of the rent for the balance of the term, with no commission payable on taxes. The ELA contained two separate, pre-printed signature lines, each marked “OWNER.” Galasso handwrote the name of the defendant Amber Associates, Ltd. (hereinafter Amber Ltd.), on the first signature line, and signed her name on the second one, directly underneath.A tenant was found for the subject property, and a sublease was later entered into on April 1, 2009, between the defendant Amber Associates of NYC, LLC (hereinafter Amber LLC), and nonparty DZH Import & Export, Inc. (hereinafter DZH). The sublease provided that the tax for the fiscal year in which the sublease commenced was included as part of the rent, and that any future tax increases would be payable by DZH to Amber LLC as additional rent. The term of the sublease was 21 years, consisting of an initial 3-year period and an option for the remaining 18 years, which was contingent upon the renewal by a nonparty of the ground lease covering the subject property as well as two adjacent lots.Amber LLC successfully moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, on the grounds that it was not a party to the ELA and that the plaintiff had otherwise failed to articulate any cause of action against it. After a nonjury trial, the Supreme Court dismissed the complaint insofar as asserted against Galasso, finding that she had not entered into the ELA in her individual capacity, but only on behalf of Amber Ltd., and entered judgment in favor of the plaintiff and against Amber Ltd. in an amount equivalent to five percent of the rent for the first three years of the sublease, after deduction of real estate taxes. The plaintiff appeals.“In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” (Split Rock Devs., LLC v. Zartab, Inc., 135 AD3d 845, 846; see Fernandez v. State of New York, 130 AD3d 566, 566).Contrary to the plaintiff’s contention, the evidence adduced at trial supports the Supreme Court’s finding that Galasso did not sign the ELA in her personal capacity, but only on behalf of Amber Ltd. The court’s further finding that the commission payable by Amber Ltd. to the plaintiff must be calculated by deducting the amount of real estate taxes from the rent payable by DZH is supported both by the unambiguous language of the ELA as well as the evidence adduced at trial. Moreover, the court’s finding that the commission must be calculated based only on the rent payable during the first three years of the sublease is supported by proof that the remaining 18-year period of the sublease was subject to a contingency that was beyond Amber LLC’s control.The plaintiff’s remaining contentions are without merit.Accordingly, we decline to disturb the Supreme Court’s determination (see Moezinia v. Ashkenazi, 136 AD3d 988; Split Rock Devs., LLC v. Zartab, Inc., 135 AD3d at 846; Law Offs. of Ronald V. DeCaprio v. Boncoeur, 134 AD3d 682; Fernandez v. State of New York, 130 AD3d at 566).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Lorenzo Adams, ap — (Ind. No. 14-00273)Mark Diamond, New York, NY, for appellant.Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered June 4, 2015, convicting him of robbery in the third degree and criminal possession of an anti-security item, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements he made to law enforcement officials.ORDERED that the judgment is affirmed.The defendant’s challenge to the legal sufficiency of the evidence to support his conviction of robbery in the third degree is 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), we find that it was legally sufficient to establish the defendant’s guilt of that crime (see People v. Danielson, 9 NY3d 342, 349). 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 are satisfied that the verdict of guilt of that crime was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress statements he made to law enforcement officials. The defendant was not in custody at the time that he made the first two sets of challenged statements (see People v. Yukl, 25 NY2d 585; People v. Gelin, 128 AD3d 717; People v. Reardon, 124 AD3d 681; People v. Gore, 117 AD3d 845, 845-846; People v. Martin, 68 AD3d 1015). The third challenged statement, made while the defendant was in custody but prior to the administration of Miranda warnings (see Miranda v. Arizona, 384 US 436), was spontaneous, and not triggered by any police questioning or other conduct which reasonably could have been expected to elicit a declaration from him (see People v. Goldson, 136 AD3d 1053, 1054; People v. Barley, 82 AD3d 996, 996; People v. Henderson, 57 AD3d 562).The defendant’s contention that the Supreme Court’s jury instructions diminished the People’s burden of proof is unpreserved for appellate review (see CPL 470.05[2]). In any event, the jury instructions, taken as a whole, conveyed the correct standard (see People v. Medina, 18 NY3d 98; People v. Fields, 87 NY2d 821; People v. Hankerson, 149 AD3d 778; People v. King, 73 AD3d 1083). Since the instructions were adequate, defense counsel’s failure to object to the court’s charge did not constitute ineffective assistance of counsel (see People v. Hankerson, 149 AD3d 778).The defendant’s contention that he was deprived of his right to present a defense by the Supreme Court’s curtailment of his cross-examination of a prosecution witness is also unpreserved for appellate review (see People v. Valdez-Cruz, 99 AD3d 738). In any event, this contention is without merit (see People v. Hudy, 73 NY2d 40, 56; People v. Cruz, 131 AD3d 706, 707).The defendant’s remaining contentions are without merit.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Victoria Bachir, etc. ap, v. Lloyds of London, etc. res — (Index No. 600160/14)Foley & Associates, P.C., New York, NY (J. Garth Foley of counsel), for appellants.Clark & Fox, New York, NY (Michael S. Savett of counsel), for respondent Lloyds of London.Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., New York, NY (Karen M. Lager of counsel), for respondent All Island Credit Corp.Wood Smith Henning & Berman, LLP, New York, NY (Nancy Quinn Koba of counsel), for respondent Horizon Planning Services, Ltd.In an action, inter alia, to recover damages for breach of an insurance policy, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Marber, J.), entered January 7, 2015, which granted the defendants’ separate motions pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.ORDERED that the order is modified, on the law, by deleting the provision thereof granting the separate motions of All Island Credit Corp. and Horizon Planning Services, Ltd., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, and substituting therefor a provision denying those motions; as so modified, the order is affirmed, with one bill of costs to the defendant Lloyds of London payable by the plaintiffs, and one bill of costs to the plaintiffs payable by the defendants All Island Credit Corp. and Horizon Planning Services, Ltd.The plaintiffs commenced this action against the defendants after the dismissal of a previous action for failure to prosecute. The defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The Supreme Court granted the motions, and the plaintiffs appeal.The Supreme Court should not have granted the defendants’ separate motions on the ground that CPLR 205(a) bars the instant action. The six-month period in CPLR 205(a) is not a limitations period but a tolling provision, which has no application where, as here, the statute of limitations had not expired at the time the second action was commenced (see United States Fid. & Guar. Co. v. Smith Co., 46 NY2d 498, 505; Bonilla v. Tutor Perini Corp., 134 AD3d 869, 870; Hyowon Kim v. Cruz, 94 AD3d 820; Schindler v. Issler & Schrage, 262 AD2d 226, 227).However, as an alternative ground for dismissal, the defendant Lloyds of London (hereinafter Lloyds) relied upon a two-year limitations provision in the subject insurance policy. Lloyds established that this action was barred insofar as asserted against it because the plaintiffs commenced the action after the expiration of that limitations period (see D’Angelo v. Allstate Ins. Co., 126 AD3d 931; Snyder v. Allstate Ins. Co., 70 AD3d 670; Beroza v. Sallah Law Firm, P.C., 126 AD3d 742). In opposition, the plaintiffs failed to raise a question of fact (see generally Snyder v. Allstate Ins. Co., 70 AD3d 670; Savarese v. Shatz, 273 AD2d 219). Accordingly, Lloyds was entitled to dismissal of the complaint insofar as asserted against it, albeit on a ground different from that relied upon by the Supreme Court.The alternative grounds for affirmance raised by the defendants All Island Credit Corp. and Horizon Planning Services, Ltd. (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 NY2d 539, 545), are without merit.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Balkin, J.P.; Hinds-Radix, Lasalle and Barros, JJ.PEOPLE, etc., res, v. Edward Brims, ap — (Ind. Nos. 11-00007, 11-00342)Edward Brims, Wallkill, NY, appellant pro se.Thomas P. Zugibe, District Attorney, New City, NY (Carrie A. Ciganek of counsel), for respondent.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 December 28, 2016 (People v. Brims, 145 AD3d 1025), affirming two judgments of the Supreme Court, Rockland County, both rendered April 5, 2012.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).BALKIN, J.P., HINDS-RADIX, LASALLE and BARROS, JJ., concur.By Mastro, J.P.; Rivera, Dillon and Roman, JJ.PEOPLE, etc., res, v. Robert Wiggins, ap — (Ind. No. 01-00622)Robert Wiggins, Stormville, NY, appellant pro se.David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.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 April 19, 2004 (People v. Wiggins, 6 AD3d 634), affirming a judgment of the County Court, Orange County, rendered October 25, 2001.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., RIVERA, DILLON and ROMAN, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.Luz Morales, res, v. Davidson Apartments, LLC ap — (Index No. 4749/15)Appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated January 20, 2017. The order denied 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 personal injuries she allegedly sustained when she slipped and fell on ice on a sidewalk abutting the defendants’ premises in the Bronx. In her bill of particulars, the plaintiff alleged that she slipped and fell on a “longstanding condition of ice.” The defendants moved for summary judgment dismissing the complaint, contending that the storm in progress rule applied. The Supreme Court denied the motion, and the defendants appeal.The defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law based on the storm in progress rule. The evidence submitted by the defendants failed to establish that the ice upon which the plaintiff slipped was the result of an ongoing storm as opposed to an accumulation of ice from prior snowfalls (see McBryant v. Pisa Holding Corp., 110 AD3d 1034, 1035-1036; Abramo v. City of Mount Vernon, 103 AD3d 760, 761). Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the evidence submitted by the plaintiff in opposition.Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Kiaza Locenitt, ap — (Ind. No. 8956/10)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered June 25, 2013, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him, as a persistent felony offender, to an indeterminate term of imprisonment of 25 years to life, and a fine in the sum of $5,000. The appeal brings up for review the denial (Guy J. Mangano, Jr., J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $5,000; as so modified, the judgment is affirmed.The defendant’s contention that certain identification testimony should have been suppressed because the process of assembling and presenting a particular photo array to the complainant was unduly suggestive is unpreserved for appellate review (see CPL 470.05[2]; People v. Moshier, 110 AD3d 832, 832). In any event, his contention is without merit (see People v. Moshier, 110 AD3d at 832).The defendant’s contention that the trial court erred in excusing, sua sponte, two prospective jurors is partially unpreserved for appellate review, as he objected to the excusal of only one prospective juror (see CPL 470.05[2]; People v. Cunningham, 119 AD3d 601, 601; People v. Toussaint, 40 AD3d 1017, 1017-1018). In any event, the defendant’s contention is without merit since both prospective jurors indicated their unwillingness or inability to follow the trial court’s instructions. The trial court, therefore, providently exercised its discretion in excusing them sua sponte (see People v. Cunningham, 119 AD3d at 602; People v. Anderson, 48 AD3d 825, 826; People v. James, 47 AD3d 947, 948).The defendant’s contention that the People failed to adduce legally sufficient evidence to prove his guilt beyond a reasonable doubt is 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 of criminal possession of a weapon in the second degree under Penal Law §265.03(3) (see People v. Rivera, 152 AD3d 625; People v. Pringle, 136 AD3d 1061, 1061-1062). 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).The defendant’s contention that the use of certain identification testimony during trial constituted improper bolstering is unpreserved for appellate review (see CPL 470.05[2]; People v. Bonilla, 151 AD3d 735) and, in any event, without merit. Moreover, the complainant was sufficiently familiar with the defendant that her identification of him in the photo array was merely confirmatory (see People v. Rodriguez, 79 NY2d 445, 452; People v. Gissendanner, 48 NY2d 543, 552; People v. Shepard, 138 AD3d 895, 896; People v. Avent, 29 AD3d 601, 601; People v. Lima, 2 AD3d 754, 754).The defendant’s contention that certain comments made by the prosecutor in summation were improper is unpreserved for appellate review (see CPL 470.05[2]), as the defendant failed to object to those comments, request curative instructions, or move for a mistrial (see People v. Brown, 139 AD3d 964, 966; People v. Valerio, 70 AD3d 869; People v. Boyce, 54 AD3d 1052, 1052). In any event, his contention is without merit, as the comments were a fair comment on the evidence (see People v. Brown, 139 AD3d at 966; People v. Green, 90 AD3d 948, 948; People v. German, 45 AD3d 861, 862), and responsive to arguments raised by the defense in summation (see People v. Lugg, 124 AD3d 679, 680; People v. Green, 90 AD3d at 948; People v. German, 45 AD3d at 862; People v. Almonte, 23 AD3d 392, 394).The trial court properly declined to give a missing witness charge, as the defendant failed to show that any uncalled witnesses were available and under the control of the People, had material knowledge, and would be able to provide noncumulative testimony (see People v. Edwards, 14 NY3d 733, 735; People v. Chestnut, 149 AD3d 772, 773; People v. Barber, 133 AD3d 868, 870; People v. Roseboro, 127 AD3d 998, 999). In any event, defense counsel was permitted to comment during summation on the People’s failure to call the witnesses in question (see People v. Williams, 5 NY3d 732, 734; People v. Barber, 133 AD3d at 870).The trial court properly denied the defendant’s request to charge the jury on criminal possession of a weapon in the fourth degree, since there was no reasonable view of the evidence that would support a finding that the defendant committed the crime of criminal possession of a weapon in the fourth degree, but not criminal possession of a weapon in the second degree (see People v. Franqueira, 143 AD3d 1164, 1170; People v. Lewis, 96 AD3d 878, 879; People v. Melendez, 71 AD3d 1166, 1167).The defendant’s contention that his adjudication as a persistent felony offender violated his right to a jury trial pursuant to Apprendi v. New Jersey (530 US 466) is unpreserved for appellate review since it was not raised at the sentencing hearing (see CPL 470.05[2]; People v. Rosen, 96 NY2d 329, 335; People v. Washington, 26 AD3d 400, 400). In any event, his contention is without merit (see People v. Bell, 15 NY3d 935, 936; People v. Quinones, 12 NY3d 116; People v. Rivera, 5 NY3d 61, 67; People v. Rosen, 96 NY2d at 335). The defendant’s argument that New York’s persistent felony offender sentencing scheme was improperly applied to him is also without merit. The People proved beyond a reasonable doubt that the defendant is a persistent felony offender within the meaning of Penal Law §70.10(1), and the sentencing court’s conclusion that the nature of the defendant’s criminal conduct in the instant matter, his criminal record, and his character warranted extended incarceration and lifetime supervision is supported by the record and was not an improvident exercise of discretion (see Penal Law §70.10; CPL 400.20; People v. Neree, 142 AD3d 1026, 1027; People v. Dixon, 107 AD3d 735, 736). Nevertheless, the sentence imposed was excessive to the extent indicated herein.The defendant’s claim of ineffective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell, 89 AD3d 1108, 1109). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant’s claim in its entirety (see People v. Spencer, 149 AD3d 983, 984; People v. Marryshow, 135 AD3d 964, 965; People v. Maxwell, 89 AD3d at 1109).The defendant’s remaining contentions, raised in his pro se supplemental brief, are without merit.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Freida Chan, res, v. Valeri Zoubarev, ap — (Index No. 13743/14)Appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated January 8, 2016. The order denied the defendant’s motion pursuant to CPLR 3211(a)(8) and 306-b to dismiss the complaint for lack of personal jurisdiction and granted the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved pursuant to CPLR 3211(a)(8) and 306-b to dismiss the complaint for lack of personal jurisdiction, and the plaintiff cross-moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. The Supreme Court denied the defendant’s motion and granted the plaintiff’s cross motion. The defendant appeals.The defendant correctly contends that the plaintiff’s purported service of the summons and complaint upon him pursuant to CPLR 308(4) was defective, as the defendant submitted unrebutted evidence that the place where service was attempted and where the summons and complaint were affixed was not his dwelling place or usual place of abode at the relevant time (see Commissioners of State Ins. Fund v. Khondoker, 55 AD3d 525, 526; In Ja Kim v. Dong Hee Han, 37 AD3d 662; Venerri v. Gallo, 23 AD3d 376).Nevertheless, the Supreme Court providently exercised its discretion in denying the defendant’s motion to dismiss the complaint and granting the plaintiff’s cross motion to extend the time to serve the summons and complaint upon the defendant. Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” (id.). ”An extension of time for service is a matter within the court’s discretion” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 101). Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action (see Singh v. Trahan, 153 AD3d 961; Selmani v. City of New York, 100 AD3d 861, 862; Dhuler v. ELRAC, Inc., 118 AD3d 937, 939). Moreover, there was no prejudice to the defendant attributable to the delay in service (see Singh v. Trahan, 153 AD3d at 961; Selmani v. City of New York, 100 AD3d at 862; Dhuler v. ELRAC, Inc., 118 AD3d at 939).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Vincent Squitieri, a/k/a Vincent Squitteri, ap — (Ind. No. 4467/15)Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (William Miller, J.), rendered January 6, 2016, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant claims that his plea of guilty was not knowing, voluntary, and intelligent because the Supreme Court failed to make further inquiry when his allocution raised the possibility of the existence of an affirmative defense to the crime of attempted robbery in the first degree (see Penal Law §160.15[4]). Contrary to the People’s contention, the defendant’s claim was not waived by any valid waiver of his right to appeal, since the claim implicates the voluntariness of the defendant’s plea (see People v. Seaberg, 74 NY2d 1, 10; People v. Lovick, 127 AD3d 1108, 1108-1109). However, the claim is unpreserved for appellate review, and the narrow exception to the preservation rule is inapplicable (see People v. Smith, 43 AD3d 474, 475; People v. Sandson, 6 AD3d 632; People v. Willingham, 194 AD2d 703). In any event, reduction of the defendant’s conviction, upon his plea of guilty, to a lesser-included offense, which is the only relief requested on appeal, would not be a lawful remedy because the People do not consent to it (see CPL 220.10[4]; People v. Rafael, 243 AD2d 277; People v. Hough, 176 AD2d 964, 964-965; People v. Vaughn, 119 AD2d 779).Accordingly, the judgment must be affirmed.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Richard Lewis ap, v. City of New York, et al., res — (Index No. 7340/14)In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Genovesi, J.), dated May 20, 2016, which denied their motion for summary judgment on the issue of liability.ORDERED that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the issue of liability is granted.On September 5, 2013, the plaintiff Chantelle Kemp was a passenger in a vehicle operated by the plaintiff Richard Lewis which was struck in the rear by a vehicle owned by the defendant City of New York and operated by the defendant Jonathan Carl Lindie. The plaintiffs allegedly sustained personal injuries and, thereafter, commenced this action against the defendants. The plaintiffs moved for summary judgment on the issue of liability, contending that the defendant driver’s negligent operation of his vehicle was the sole proximate cause of the accident. The Supreme Court denied the motion. The plaintiffs appeal.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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v. County of Suffolk, 10 NY3d 906, 908; Bowen v. Farrell, 140 AD3d 1001, 1002; Theo v. Vasquez, 136 AD3d 795, 796). ”A nonnegligent explanation includes, but is not limited to, ‘sudden or unavoidable circumstances’” (D’Agostino v. YRC, Inc., 120 AD3d 1291, 1292, quoting Gambino v. City of New York, 205 AD2d 583, 583).Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that their vehicle was stopped for the traffic condition ahead when it was struck in the rear by the defendants’ vehicle, and that they were not comparatively at fault in the happening of the accident (see Bowen v. Farrell, 140 AD3d at 1002; Bene v. Dalessio, 135 AD3d 679, 680; Lisetskiy v. Weiss, 123 AD3d 775, 776). In opposition, the defendants failed to raise a triable issue of fact (see Barry v. Pepsi-Cola Bottling Co. of N.Y., Inc., 130 AD3d 500; Lee v. D. Daniels Contr., Ltd., 113 AD3d 824; Agramonte v. City of New York, 288 AD2d 75, 76; Marsella v. Sound Distrib. Corp., 248 AD2d 683, 684).Accordingly, the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.PEOPLE, etc., res, v. Tylin L. Fowler, ap — (Ind. No. 407/13)Paul Skip Laisure, New York, NY (Elizabeth Plimpton of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered May 20, 2014, convicting him of robbery in the first degree, robbery in the second degree (two counts), and criminal possession of marijuana, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the law, by vacating the conviction of robbery in the second degree under count three of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.The defendant’s contentions that he was deprived of a fair trial by improper remarks made by the prosecutor during her opening statement and summation are unpreserved for appellate review (see CPL 470.05[2]; People v. Choi, 137 AD3d 808, 810; People v. Norman, 40 AD3d 1130, 1131). In any event, the contentions lack merit, since the majority of the comments alleged to be prejudicial were either fair comment on the evidence and the reasonable inferences to be drawn therefrom or responsive to defense counsel’s summation. To the extent that some of the comments made during the prosecutor’s opening statements and summation were improper, these errors were not, either singly or in the aggregate, so egregious as to have denied the defendant a fair trial (see People v. Choi, 137 AD3d at 810; People v. O’Diah, 68 AD3d 788; People v. Polin, 63 AD3d 1180; People v. Bailey, 54 AD3d 419, 420; People v. Norman, 40 AD3d at 1131).The defendant’s contention that the Supreme Court failed to adequately instruct the jury as to reasonable doubt is unpreserved for appellate review (see CPL 470.05[2]; People v. Robinson, 88 NY2d 1001, 1001-1002). In any event, the defendant’s contention is without merit because the jury instructions, taken as a whole, conveyed the correct standard to be employed with respect to reasonable doubt (see People v. Fields, 87 NY2d 821, 823; People v. Cutting, 150 AD3d 873, 876; People v. Cook, 58 AD2d 946).The People correctly concede that the defendant’s conviction of robbery in the second degree under count three of the indictment must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of robbery in the first degree (see CPL 300.30[4]; 300.40[3][b]; Penal Law §§160.10[2][B]; 160.15[4]; People v. Miller, 6 NY3d 295, 302; People v. Rodriguez, 141 AD2d 573).The defendant’s remaining contentions are without merit.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Michael Meagher res, v. Drew Doscher, appellant nominal def — (Action No. 1)Michael J. Meyer, etc., plf-res, Michael Meagher nominal plaintiffs- res, v. 148 South Emerson Associates, LLC, def, Drew Doscher, ap; Charles C. Russo, nonparty-res — (Action No. 2)(Index Nos. 60807/14, 68379/14)Appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated February 19, 2015, an amended order of that court dated September 16, 2015, and two orders of that court, both dated October 1, 2015. The order and judgment, in effect, granted the motion of the plaintiffs in Action No. 1 for summary judgment on the complaint and, in effect, declared that the plaintiffs Michael Meagher and Stephen Smith each hold a 25 percent ownership interest in 148 South Emerson Partners, LLC, and granted the motion of the plaintiff and the nominal plaintiffs in Action No. 2 to appoint a temporary receiver for 148 South Emerson Associates, LLC. The amended order dated September 16, 2015, insofar as appealed from, denied the motion of Drew Doscher, the defendant in Action No. 1, to vacate so much of the order and judgment as pertained to Action No. 1 and for leave to renew and reargue his opposition to the motion for summary judgment on the complaint in that action. The orders dated October 1, 2015, granted the motions of nonparty Charles C. Russo, the court-appointed temporary receiver in Action No. 2, for interim compensation, and denied the cross motions of Drew Doscher, a defendant in Action No. 2, inter alia, to direct the plaintiffs and the nominal plaintiffs in Action No. 2 to pay the interim compensation sought by the court-appointed temporary receiver.ORDERED that the order and judgment is modified, on the law, by deleting the provisions thereof, in effect, granting the motion of the plaintiffs in Action No. 1 for summary judgment on the complaint and, in effect, declaring that the plaintiffs Michael Meagher and Stephen Smith each hold a 25 percent ownership interest in 148 South Emerson Partners, LLC, and substituting therefor a provision denying that motion; as so modified, the order and judgment is affirmed, without costs or disbursements; and it is further,ORDERED that the appeal from so much of the amended order dated September 16, 2015, as denied that branch of the motion of Drew Doscher, a defendant in Action No. 1, which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,ORDERED that the appeal from so much of the amended order dated September 16, 2015, as denied those branches of the motion of Drew Doscher, a defendant in Action No. 1, which were to vacate so much of the order and judgment as pertained to Action No. 1 and for leave to renew his opposition to the motion for summary judgment on the complaint in that action is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order and judgment; and it is further,ORDERED that the orders dated October 1, 2015, are affirmed, without costs or disbursements.Four managing members—Michael Meagher, Michael Meyer, and Stephen Smith (hereinafter collectively the plaintiffs), and Drew Doscher—formed two limited liability companies, 148 South Emerson Partners, LLC (hereinafter Emerson Partners), and 148 South Emerson Associates, LLC (hereinafter Emerson Associates). Emerson Partners was formed to “own, lease and manage” real property located at 148 South Emerson Avenue in Montauk (hereinafter the property). Emerson Associates was formed to “own and manage a restaurant business” on the property known as “The Sloppy Tuna.” Originally, the managing members each held a 25 percent ownership interest in each company.In July 2012, the managing members executed an agreement entitled “Assignment of Units,” pursuant to which Meagher and Smith assigned their respective ownership interests in Emerson Associates to Meyer and Doscher. On December 10, 2012, Meagher and Smith were each paid the sum of $230,000 by a check drawn on the account of Emerson Associates. The “memo” on both checks stated, “Return on Capital #1.” Thereafter, a dispute arose as to whether Meagher and Smith had transferred their ownership interests in both Emerson Associates and Emerson Partners to Meyer and Doscher.In February 2014, the plaintiffs commenced Action No. 1 against, inter alia, Doscher, seeking a declaration that each of the managing members holds a 25 percent ownership interest in Emerson Partners. The plaintiffs subsequently moved for summary judgment on the complaint.In October 2014, Meyer, individually and derivatively on behalf of Emerson Associates, along with Meagher and Smith as nominal plaintiffs, commenced Action No. 2 against Emerson Associates and Doscher, seeking, inter alia, an accounting of Emerson Associates. The plaintiffs subsequently moved, in that action, to appoint a temporary receiver for Emerson Associates.In an order and judgment dated February 19, 2015, the Supreme Court, in effect, granted the plaintiffs’ motion in Action No. 1 for summary judgment on the complaint and, in effect, declared that Meagher and Smith each hold a 25 percent ownership interest in Emerson Partners. In addition, the court granted the plaintiffs’ motion in Action No. 2 to appoint a temporary receiver for Emerson Associates. Doscher appeals from the order and judgment.Thereafter, the court-appointed temporary receiver filed two separate motions for interim compensation. Doscher filed two separate cross motions, inter alia, to direct the plaintiffs to pay the interim compensation sought by the court-appointed temporary receiver. In two orders, both dated October 1, 2015, the Supreme Court granted the separate motions of the court-appointed temporary receiver and denied Doscher’s separate cross motions. Doscher appeals from those orders.With respect to the summary judgment motion in Action No. 1, the plaintiffs established, prima facie, that pursuant to the Assignment of Units, Meagher and Smith only transferred their ownership interests in Emerson Associates, and that no writing existed pursuant to which Meagher and Smith transferred their ownership interests in Emerson Partners.In opposition, however, Doscher raised triable issues of fact as to whether Meagher and Smith orally agreed to transfer their ownership interests in Emerson Partners and whether, contrary to the plaintiffs’ contentions, such an agreement was not invalid under the statute of frauds because, as Doscher asserts, the payments of $230,000 to Meagher and Smith in December 2012 constituted partial performance unequivocally referable to the oral agreement (see Pinkava v. Yurkiw, 64 AD3d 690, 692-693; Luft v. Luft, 52 AD3d 479, 481). In that respect, the Assignment of Units merely specified that Meagher and Smith were transferring their respective ownership interests in Emerson Associates to Doscher and Meyer in exchange for “two dollars.” Although the plaintiffs claim that Meagher and Smith were to receive, in exchange for that assignment, their capital contributions to Emerson Associates and share of the profits of that entity as of the date of the assignment, there is conflicting evidence in the record as to the amount of Meagher’s and Smith’s capital contributions to Emerson Associates, and no evidence as to its profits as of the date of the assignment. Thus, there are questions of fact as to whether the payment of $230,000 was unequivocally referable to the alleged oral agreement. Contrary to the plaintiffs’ further contention, there was no evidence demonstrating that the alleged oral agreement had “‘absolutely no possibility in fact and law’” of being performed within a year (JNG Constr., Ltd. v. Roussopoulos, 135 AD3d 709, 710, quoting D & N Boening v. Kirsch Beverages, 63 NY2d 449, 454; see Micena v. Katz, 68 AD3d 826, 827).Accordingly, the Supreme Court erred by, in effect, granting the plaintiffs’ motion in Action No. 1 for summary judgment on the complaint and, in effect, declaring that Meagher and Smith each hold a 25 percent ownership interest in Emerson Partners.Nevertheless, the Supreme Court properly granted the plaintiffs’ motion in Action No. 2 to appoint a temporary receiver for Emerson Associates. ”‘The appointment of a temporary receiver is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits’” (Vardaris Tech, Inc. v. Paleros Inc., 49 AD3d 631, 632, quoting Schachner v. Sikowitz, 94 AD2d 709, 709), and “‘should be granted only where the moving party has made a clear evidentiary showing of the necessity for the conservation of the property at issue and the need to protect the moving party’s interests’” (Vardaris Tech, Inc. v. Paleros Inc., 49 AD3d at 632, quoting Lee v. 183 Port Richmond Ave. Realty, 303 AD2d 379, 380; see CPLR 6401[a]). Here, the plaintiffs made a clear evidentiary showing that the appointment of a receiver was necessary to protect the parties’ interests, given the state of affairs between them, and that Doscher’s unilateral actions presented a danger of material injury to Emerson Associates’ property (see Suissa v. Baron, 107 AD3d 689, 690; St. Julien v. LaGuerre, 39 AD3d 532, 533; Singh v. Brunswick Hosp. Ctr., 2 AD3d 433, 434-435). Most significantly, the plaintiffs submitted evidence: that there was litigation between Emerson Associates and a corporation owned by Doscher concerning which entity owned certain trademarks, including the name “The Sloppy Tuna”; that Doscher executed a license agreement on behalf of Emerson Associates, pursuant to which Emerson Associates was obligated to pay licensing fees to Doscher’s corporation to use the trademarks in connection with the operation of The Sloppy Tuna; and that Doscher was using Emerson Associates’ funds to pay his legal bills in Action No. 1 and Action No. 2. Accordingly, under these circumstances, the court properly granted the plaintiffs’ motion to appoint a temporary receiver.The Supreme Court properly denied those branches of Doscher’s cross motions in Action No. 2 which were to direct the plaintiffs to pay the interim compensation sought by the court-appointed temporary receiver, as Doscher did not offer any valid basis on which to direct such payment (see generally CPLR 8004; Amusement Distribs., Inc. v. Oz Forum, 113 AD2d 855, 855-856).The parties’ remaining contentions either are without merit or need not be reached in light of our determination.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Lois Sacks, ap, v. The Knolls at Pinewood, LLC, et al., respondents def — (Index No. 58955/14)Silverberg, P.C., Central Islip, NY (Karl Silverberg of counsel), for appellant.Gallo Vitucci Klar, LLP, New York, NY (Daniel P. Mevorach and Kimberly A. Ricciardi of counsel), for respondents The Knolls at Pinewood, LLC, Pinewood Development Corp., and Uri Hason.Milber Makris Plousadis & Seiden, LLP, White Plains, NY (Mark Seiden and Jeffrey J. Fox of counsel), for respondent Cronin Engineering, Professional Engineering, P.C.In an action, inter alia, to recover damages for breach of warranty and breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated April 8, 2015, as (1) granted those branches of the motion of the defendants The Knolls at Pinewood, LLC, Pinewood Development Corp., and Uri Hason which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in rescission, negligence, fraud, intentional infliction of emotional distress, fraudulent conveyance, and “alter ego” liability insofar as asserted against them, (2) denied her cross motion for leave to serve and file a second amended complaint, and (3) granted that branch of the motion of the defendant Cronin Engineering, Professional Engineering, P.C., which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging negligence insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.The plaintiff purchased a condominium unit from the defendant The Knolls at Pinewood, LLC (hereinafter the Knolls), in December 2010. Included in the purchase agreement was a six-year major structural defect warranty on the unit. Less than one year later, the plaintiff’s home, which was built on the side of a steep, man-made slope, began to sink. The walls cracked, the floors sloped almost four inches, and doors and windows would not close. The plaintiff timely notified the Knolls, Pinewood Development Corp. (hereinafter Pinewood), a member of the Knolls and the general contractor for the construction of the condominium development, and Pinewood’s president and construction manager, Uri Hason (hereinafter collectively the Hason defendants), of her warranty claim. The Hason defendants, however, did not respond to her warranty claim.The plaintiff commenced this action against, among others, the Hason defendants, asserting causes of action sounding in, inter alia, breach of warranty, breach of contract, rescission, negligence, fraud, intentional infliction of emotional distress, and fraudulent conveyance. The plaintiff also alleged that Pinewood and Hason were liable as alter egos of the Knolls. The plaintiff later amended her complaint to include, inter alia, a negligence cause of action against the defendant Cronin Engineering, Professional Engineering, P.C. (hereinafter Cronin Engineering), the civil engineering firm that prepared the site grading plans and utility plans for the condominium construction project.The Hason defendants moved pursuant to CPLR 3211(a)(7) to dismiss all of the causes of action insofar as asserted against them except the breach of warranty cause of action. The plaintiff cross-moved for leave to serve and file a second amended complaint to include additional defendants. Cronin Engineering, inter alia, moved pursuant to CPLR 3211(a) to dismiss the negligence cause of action insofar as asserted against it. The Supreme Court, inter alia, (1) granted those branches of the Hason defendants’ motion which were to dismiss the causes of action sounding in rescission, negligence, fraud, intentional infliction of emotional distress, fraudulent conveyance, and “alter ego” liability insofar as asserted against them, (2) denied the plaintiff’s cross motion for leave to serve and file a second amended complaint, and (3) granted that branch of Cronin Engineering’s motion which was to dismiss the cause of action alleging negligence insofar as asserted against it.The Supreme Court properly denied the plaintiff’s cross motion for leave to serve and file a second amended complaint, as her proposed amendments were patently devoid of merit on their face (see Maya’s Black Cr., LLC v. Angelo Balbo Realty Corp., 82 AD3d 1175, 1175-1176).The Supreme Court properly granted that branch of the Hason defendants’ motion which was to dismiss the cause of action alleging negligence insofar as asserted against the Knolls, as the plaintiff failed to allege facts which, if proved, establish that the Knolls violated a legal duty independent of the contract itself or that the action should transform into a tort (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 389). The court also properly granted that branch of the Hason defendants’ motion which was to dismiss the cause of action alleging negligence insofar as asserted against Pinewood and Hason, and that branch of Cronin Engineering’s separate motion which was for the same relief insofar as asserted against it, because, under New York law, “[a] plaintiff cannot recover solely for economic loss arising out of negligent construction in the absence of a contractual relationship” (Residential Bd. of Mgrs. of Zeckendorf Towers v. Union Sq.-14th St. Assoc., 190 AD2d 636, 637), and none of those parties had a contractual relationship with the plaintiff or the functional equivalent of privity of contract (see Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 NY2d 417, 425).Further, inasmuch as the plaintiff offered nothing more than bald, unsubstantiated allegations that Pinewood and Hason abused the privilege of doing business in the corporate form by dominating and controlling the Knolls, the Supreme Court properly declined to impose alter ego liability on Pinewood and Hason (see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122, 126-127, affd 16 NY3d 775).The plaintiff’s remaining contentions are without merit.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.PEOPLE, res, v. John Tromba, ap — Paul Skip Laisure, New York, NY (Lauren E. Jones of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Aleena R. Peerzada on the brief), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Michael A. Gary, J.), dated February 22, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.At a hearing pursuant to the Sex Offender Registration Act (see Correction Law §168 et seq.;        hereinafter SORA), the defendant was assessed 80 points under the Risk Assessment Instrument, placing him near the bottom of the range for a presumptive level two designation. The defendant contends that the Supreme Court improvidently exercised its discretion in denying his request for a downward departure from the presumptive risk level.A court determining a defendant’s risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and then proves by a preponderance of the evidence the facts in support of, “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Lathan, 129 AD3d 686, 686-687 [internal quotation marks omitted]; see People v. Warren, 152 AD3d 551, 551; SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). Once a defendant seeking a downward departure identifies and proves the mitigating factor by a preponderance of the evidence,the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the danger presented by the defendant and the risk the defendant will reoffend (see People v. Gillotti, 23 NY3d 841, 861; People v. Champagne, 140 AD3d 719, 720).Under the circumstances of this case, a downward departure on the basis of the defendant’s age was not warranted (see People v. Shelton, 126 AD3d 959, 960; People v. Torres, 124 AD3d 744, 746; People v. Lucius, 122 AD3d 819, 819-820). Moreover, none of the other factors put forward by the defendant, either singly, in combination with each other, or in combination with the defendant’s age, showed that the presumptive risk level overassessed the danger presented by the defendant and the risk of reoffense (see People v. Shelton, 126 AD3d at 960; People v. Torres, 124 AD3d at 746; People v. Cabrera, 91 AD3d 479, 480). Accordingly, the Supreme Court providently exercised its discretion in declining to downwardly depart from the presumptive risk level.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Chambers, J.P.; Sgroi, Maltese and Connolly, JJ.PEOPLE, etc., res, v. William Waldon, ap — (Ind. No. 2700/15)Paul Skip Laisure, New York, NY (Nao Terai of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Christopher Blira-Koessler of counsel; Lorrie A. Zinno on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed January 13, 2016, upon his plea of guilty, on the ground that the sentence is excessive.ORDERED that the sentence is affirmed.A defendant who has validly waived the right to appeal cannot invoke this Court’s interest of justice jurisdiction to obtain a reduced sentence (see People v. Lopez, 6 NY3d 248, 255). Here, however, this Court is not precluded from reviewing the sentence because the defendant’s purported waiver of his right to appeal was invalid. During the plea allocution, the Supreme Court incorrectly informed the defendant that “by giving up the right to appeal you will be able to challenge any legal rulings in the case, such as suppression issues or excessive sentence.” Moreover, the Supreme Court’s statements improperly suggested that the waiver of the right to appeal was mandatory rather than a right that the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal (see People v. Santeramo, 153 AD3d 1286, 1286; People v. Pelaez, 100 AD3d 803, 803). In addition, the record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty (see People v. Santeramo, 153 AD3d at 1286-1287; People v. Pacheco, 138 AD3d 1035, 1036). Furthermore, the court misstated the law by informing the defendant, in effect, that the appeal waiver would preclude him from challenging the voluntariness of his plea (see People v. Seaberg, 74 NY2d 1, 10; People v. Pelaez, 100 AD3d at 803-804).Although the record on appeal reflects that the defendant executed a written appeal waiver form, the transcript of the plea proceedings shows that the Supreme Court did not ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents (see People v. Callahan, 80 NY2d 273, 283; People v. Santeramo, 153 AD3d at 1287; People v. Pacheco, 138 AD3d at 1036; People v. Brown, 122 AD3d 133, 145). Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Brown, 122 AD3d 133; see generally People v. Bradshaw, 18 NY3d 257, 264-267; People v. Lopez, 6 NY3d at 255).Nevertheless, the sentence imposed is not excessive (see People v. Suitte, 90 AD2d 80).CHAMBERS, J.P., SGROI, MALTESE and CONNOLLY, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Davinder Bilkho, ap, v. Roosevelt Square, LLC, res — (Index No. 703196/12)Appeal from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered September 15, 2016. The order denied the plaintiff’s motion to restore the action to active status, in effect, to vacate the “disposed” marking, and to extend his time to serve and file a note of issue.ORDERED that the order is reversed, on the law, with costs, those branches of the plaintiff’s motion which were to restore the action to active status and, in effect, to vacate the “disposed” marking are granted, and that branch of the plaintiff’s motion which was to extend his time to serve and file a note of issue is denied as unnecessary.On November 27, 2011, the plaintiff allegedly was injured when he fell in an interior stairwell within the defendant’s premises. On December 13, 2012, the plaintiff commenced this action against the defendant to recover damages for personal injuries. By order dated October 28, 2013, following a compliance conference, the plaintiff was directed, inter alia, to file a note of issue on or before April 11, 2014.On April 10, 2014, the plaintiff filed a note of issue and certificate of readiness. However, by order dated June 10, 2015, the Supreme Court vacated the note of issue after it was reported that significant discovery remained outstanding, and the action was “restored to pre-note of issue status before the initially assigned IAS justice.” However, the action was subsequently marked “disposed.”By notice of motion dated May 11, 2016, the plaintiff, represented by new counsel, moved to restore the action to active status, in effect, to vacate the “disposed” marking, and to extend his time to serve and file a note of issue. In an order entered September 15, 2016, the Supreme Court denied the motion, and the plaintiff appeals.The defendant erroneously characterizes the plaintiff’s motion as seeking to reinstate the note of issue and restore the action to the trial calendar (see 22 NYCRR 202.21[f]). Rather, the plaintiff moved, inter alia, to restore the action to active status and, in effect, to vacate the “disposed” marking. In light of the Supreme Court’s order dated June 10, 2015, vacating the note of issue and restoring the action to pre-note of issue status, the subsequent “disposed” marking was tantamount to a purge or mark off of a pre-note of issue case (see Khaolaead v. Leisure Video, 18 AD3d 820, 821), which is not permitted (see Florexile-Victor v. Douglas, 135 AD3d 903; Arroyo v. Board of Educ. of City of N.Y., 110 AD3d 17, 19; Rakha v. Pinnacle Bus Servs., 98 AD3d 657; Casavecchia v. Mizrahi, 62 AD3d 741, 742; Lopez v. Imperial Delivery Serv., 282 AD2d 190, 193-194). Therefore, those branches of the plaintiff’s motion which were to restore the action to active status and, in effect, vacate the “disposed” marking should have been granted (see Khaolaead v. Leisure Video, 18 AD3d at 821).By restoring the action to pre-note of issue status, the order dated June 10, 2015, also, in effect, extended the plaintiff’s time to file a note of issue. Accordingly, that branch of the plaintiff’s motion which was to extend the time to serve and file the note of issue should have been denied as unnecessary.CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.PEOPLE, etc., res, v. Timothy v. Atkins, ap — (Ind. No. 15-00544)Michele Marte-Indzonka, Newburgh, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered July 13, 2016, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant pleaded guilty to grand larceny in the fourth degree in exchange for a promised sentence of six months in jail and a five-year period of probation. However, after the defendant violated a condition of the plea that he not be rearrested prior to sentencing, the court imposed an indeterminate term of imprisonment of one to three years.The defendant’s contention that he was coerced into admitting to the violation of a plea condition, while not precluded by his appeal waiver (see People v. Bracy, 131 AD3d 538, 539; People v. Ricketts, 27 AD3d 488, 489), is unpreserved for appellate review (see People v. Bracy, 131 AD3d at 539; People v. Arrington, 94 AD3d 903; cf. People v. Weston, 145 AD3d 746, 747; People v. Holcombe, 116 AD3d 1063). In any event, the contention is not supported by the record, which does not reflect that the defendant was coerced, but only that the sentencing court informed the defendant of what the People’s sentencing recommendation would be if he admitted to the violation and committed to accept the People’s recommendation upon such an admission (see generally People v. Seaberg, 74 NY2d 1, 9; People v. Licausi, 122 AD3d 771, 773).The defendant’s valid waiver of his right to appeal limits this Court’s review of the defendant’s ineffective assistance of counsel claim to issues regarding the voluntariness of the plea (see People v. Martinez, 155 AD3d 1063; People v. Flowers, 152 AD3d 791). To the extent that the defendant’s contentions are related to the voluntariness of the plea, his contentions involve a “mixed claim” of ineffective assistance that requires reference to matters outside the record (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575 n 2; People v. Freeman, 93 AD3d 805, 806). It is not evident based on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 NY2d 824; People v. Brown, 45 NY2d 852). Therefore, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 AD3d at 806).Review of the defendant’s excessive sentence claim is precluded by his valid waiver of the right to appeal (see People v. Lopez, 6 NY3d 248, 256; People v. Perry, __AD3d__, 2017 NY Slip Op 08539 [2d Dept 2017]; People v. Martinez, 155 AD3d 1063).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.PEOPLE, etc., res, v. Sukhjinder Dhillon, ap — (S.C.I. No. 1235/13)Mark M. Baker, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.Appeal by the defendant from a resentence of the Supreme Court, Queens County (Stephanie Zaro, J.), imposed March 6, 2017, upon his conviction of manslaughter in the first degree, upon his plea of guilty, after remittitur from this Court for resentencing (see People v. Dhillon, 143 AD3d 734), the resentence being a determinate term of imprisonment of 17 years to be followed by 5 years’ postrelease supervision.ORDERED that the resentence is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment from 17 years to 12 years; as so modified, the resentence is affirmed.“The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case” (People v. Hesterbey, 121 AD3d 1127, 1128 [internal quotation marks omitted]; see People v. Mullings, 83 AD3d 871, 872; People v. Fearon, 182 AD2d 698, 699, lv granted 79 NY2d 1048). Here, weighing all the relevant circumstances, including the gravity of the crime and the manner in which it was committed, the fact that the defendant has no prior criminal record, the defendant’s psychological diagnoses, and his prospects for rehabilitation and hope for a future constructive life, the Supreme Court providently exercised its discretion in denying the defendant’s application for youthful offender status (see People v. Hopkins, 163 AD2d 416; People v. Lutchmidat, 134 AD2d 286, 287).However, the resentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 AD2d 80).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.PEOPLE, res, v. Timothy Crosby, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated October 5, 2016, 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 Supreme Court assessed the defendant 120 points on the risk assessment instrument, within the range for a presumptive designation as a level three sex offender. Additionally, the court denied the defendant’s request for a downward departure from that presumptive risk level, and it designated him a level three sex offender. On appeal, the defendant challenges the court’s denial of his request for a downward departure.The Supreme Court properly rejected the defendant’s request for a downward departure. A court determining a defendant’s risk level under SORA may not downwardly depart from the presumptive risk level unless the defendant first identifies, and proves by a preponderance of the evidence the facts in support of, “a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Lathan, 129 AD3d 686, 686-687 [internal quotation marks omitted]; see People v. Warren, 152 AD3d 551, 551; SORA: Risk Assessment Guidelines and Commentary at 4 [2006]). Here, the defendant failed to identify a valid mitigating factor (see People v. Warren, 152 AD3d at 551). Accordingly, there was no basis for a downward departure, and the court properly designated the defendant a level three sex offender.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Messiah Keizer, ap — (Ind. No. 7175/13)Paul Skip Laisure, New York, NY (Laura B. Tatelman of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered February 4, 2015, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.The defendant was convicted of assault in the second degree based on an allegation that he stabbed the complainant on a Brooklyn sidewalk. The defendant’s challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review (see CPL 470.05[2]; People v. Kolupa, 13 NY3d 786, 787; People v. Hawkins, 11 NY3d 484, 492; People v. Hines, 97 NY2d 56, 61). 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 (see People v. Danielson, 9 NY3d 342, 349). 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 at 348-349), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Contrary to the defendant’s contention, the Supreme Court did not err in granting the People’s Molineux application (see People v. Molineux, 168 NY 264). Prior to trial, the People made an application to introduce evidence that the defendant had engaged in a domestic dispute with a woman with whom he and the complainant each have a child, and that hours before the stabbing, the complainant confronted the defendant verbally about the domestic dispute and about the fact that the defendant had visited the woman’s home in violation of an order of protection. The People theorized that the defendant stabbed the complainant as retaliation for the verbal dispute between the complainant and the defendant. The court stated that, although the People would not be allowed to “go into very much detail about what the allegations are,” it would allow the People to introduce the proffered evidence “for the purpose of letting the jury know what the background was for the allegations in this case, as well as to prove the element of intent.” The evidence permitted was relevant to establish the defendant’s motive and intent (see People v. Till, 87 NY2d 835, 837; People v. Gomez, 153 AD3d 724, 725; People v. Rodriguez, 148 AD3d 938). The court providently exercised its discretion in determining that the probative value of this evidence outweighed any potential prejudice to the defendant (see People v. Morris, 21 NY3d 588, 595-597; People v. Gomez, 153 AD3d at 725).The Supreme Court providently exercised its discretion in denying the defendant’s request for a mistrial based on the prosecutor’s alleged violation of the court’s Molineux ruling. The prejudicial effect of the allegedly improper testimony was not so great that it deprived him of his right to a fair trial in light of the court’s action in striking the challenged testimony and issuing curative instructions to the jury (see People v. Macaluso, 144 AD3d 947; People v. Smith, 143 AD3d 1005, 1005-1006; People v. Ragsdale, 68 AD3d 897, 898; People v. Jackson, 59 AD3d 637, 638).The defendant’s contention that the prosecutor committed prosecutorial misconduct in her summation is unpreserved for appellate review, as the defendant failed to move for a mistrial or request further relief when the Supreme Court gave curative instructions (see People v. Choi, 137 AD3d 808, 810; People v. Murphy, 133 AD3d 690, 690-691; People v. Ambers, 115 AD3d 671, 672, affd 26 NY3d 313). In any event, the defendant was not deprived of a fair trial, as the challenged comment was isolated and any prejudice therefrom was alleviated by the curative instructions (see People v. McManus, 150 AD3d 762, 763; People v. Rios, 105 AD3d 873; People v. Rayford, 80 AD3d 780, 781).CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it (see People v. Rudolph, 21 NY3d 497, 501). Here, as the People correctly concede, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, we vacate the sentence imposed, and remit the matter to the Supreme Court, Kings County, for resentencing after making this determination (see People v. Miller, 147 AD3d 783, 783-784; People v. Alston, 145 AD3d 737). We express no opinion as to whether the court should afford youthful offender status to the defendant.The defendant’s remaining contentions are without merit.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.David S. Kimball ap, v. Bay Ridge United Methodist Church, respondent def — (Index No. 3685/16)Law Office of Mary T. Dempsey, P.C., New York, NY, for appellants.Moritt Hock & Hamroff LLP, New York, NY (Gregory G. Calabro and Andrew D. Briker of counsel), for respondent.In an action for declaratory and injunctive relief, the plaintiffs appeal, as limited by their brief and letter dated May 18, 2017, from so much of an order of the Supreme Court, Kings County (Landicino, J.), dated March 30, 2017, as granted that branch of the motion of the defendant Bay Ridge United Methodist Church which was for summary judgment on its counterclaim sounding in trespass to the extent of determining that certain cladding and a drip edge encroached onto that defendant’s property and directing the removal of the cladding and drip edge.ORDERED that the order is modified, on the law, by deleting the provision thereof directing the removal of the cladding and drip edge; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.The plaintiffs own a building in Brooklyn that shared a party wall with a church building owned by the defendant Bay Ridge United Methodist Church (hereinafter the defendant) until the church building was demolished in 2008. In 2015, the plaintiffs caused certain cladding and a drip edge to be installed on the wall. After the plaintiffs commenced this action for declaratory and injunctive relief, the defendant asserted a counterclaim alleging, inter alia, that the cladding and drip edge constituted a trespass. In the order appealed from, the Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment on the counterclaim sounding in trespass to the extent of determining that the cladding and drip edge encroached onto the defendant’s property and directing the removal of the cladding and drip edge. The plaintiffs appeal.Contrary to the plaintiffs’ contention, the defendant established, prima facie, that the cladding and drip edge encroached onto its property (see generally Alvarez v. Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiffs failed to raise a triable issue of fact regarding whether the cladding and drip edge encroached onto the defendant’s property. Accordingly, the Supreme Court properly granted summary judgment to the defendant on the issue of whether the cladding and drip edge encroached onto the defendant’s property.However, the Supreme Court erred in granting summary judgment to the defendant on the issue of whether it was entitled to an injunction directing the plaintiffs to remove the cladding and drip edge. RPAPL 871(1) provides that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.” In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief” (Broser v. Schubach, 85 AD3d 957, 957; see Marsh v. Hogan, 81 AD3d 1241, 1242-1243; Town of Fishkill v. Turner, 60 AD3d 932, 933). Here, the defendant failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor (see Broser v. Schubach, 85 AD3d at 957; Town of Fishkill v. Turner, 60 AD3d at 933; see also Wing Ming Props. [U.S.A] v. Mott Operating Corp., 79 NY2d 1021, 1023).BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.Barry Braunstein ap, v. Joan Hodges, res — (Index No. 506974/13)Avrom R. Vann, P.C., New York, NY, for appellants.Bruce S. Reznick, P.C. (Thomas Torto, New York, NY [Jason Levine], of counsel), for respondent.Appeal from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated March 2, 2016. The order denied the plaintiffs’ motion for a preliminary injunction enjoining the defendant from interfering with an alleged easement over certain real property.ORDERED that the order is affirmed, with costs.The plaintiffs commenced this action for a permanent injunction enjoining the defendant from interfering with an alleged easement over certain real property. The defendant submitted an answer in which she alleged that the subject easement had been extinguished through adverse possession. More than seven months later, the plaintiffs moved for a preliminary injunction enjoining the defendant from interfering with the alleged easement during the pendency of this action. The Supreme Court denied the plaintiffs’ motion, and the plaintiffs appeal.To establish the right to a preliminary injunction, the plaintiff must demonstrate (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff’s favor (see CPLR 6301; J.A. Preston Corp. v. Fabrication Enters., 68 NY2d 397, 406; 19 Patchen, LLC v. Rodriguez, 153 AD3d 1382, 1383). Here, the plaintiffs failed to establish these three elements. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion for a preliminary injunction.The plaintiffs’ remaining contention is not properly before this Court (see Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 NY2d 465, 472-473).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Gila Hoffmann, ap, v. Corinne E. Horn, etc., et al., res — (Index No. 7131/15)In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated January 11, 2016, which granted the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint is denied.In 2013, the plaintiff underwent a rhinoplasty and surgery for a deviated septum at nonparty Beth Israel Medical Center (hereinafter the Medical Center). The procedures were performed by the defendants Corinne E. Horn and Scott D. Gold (hereinafter together the defendant doctors), who were allegedly employed by the defendant New York Otolaryngology Group. After the procedures, the plaintiff contacted the Medical Center and informed it that she suffered a loss of a crown and two cracked teeth due to the negligence of the anesthesiologist. The plaintiff was unrepresented, and accepted a settlement in the sum of $4,000 from the Medical Center. As part of the settlement, the plaintiff executed a general release in favor of the Medical Center, which stated, in pertinent part:“[The plaintiff] releases and discharges BETH ISRAEL MEDICAL CENTER, its agents, servants and employees…“THIS RELEASE and settlement constitutes complete payment for all damages and injuries and is specifically intended to release the RELEASEE and also is specifically intended to release, whether presently known or unknown, all other tortfeasors liable or claimed to be liable jointly with the RELEASEE; and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the RELEASEE.”The plaintiff subsequently commenced this action to recover damages for medical malpractice and lack of informed consent, alleging that the defendant doctors failed to give her proper information before performing the procedures, and that the procedures left her with a disfigured nose and sleep problems. The defendants moved to dismiss the complaint, claiming that the general release was broad enough to include them. The plaintiff opposed the motion, arguing that the release was only intended to release the Medical Center, and that it specifically releases only joint tortfeasors. The plaintiff contended that the defendant doctors were not joint tortfeasors with the Medical Center, but rather separate tortfeasors liable for their malpractice independent of the Medical Center. The Supreme Court granted the motion, and the plaintiff appeals.Pursuant to General Obligations Law §15-108(a), “[w]hen a release… is given to one of two or more persons liable or claimed to be liable in tort for the same injury,… it does not discharge any of the other tortfeasors from liability for the injury… unless its terms expressly so provide” (emphasis added). A release which is clear and unambiguous will be fully enforced according to the plain language of the release, regardless of one party’s claim that he or she intended something else (see Sicuranza v. Philip Howard Apts. Tenants Corp., 121 AD3d 966; Matter of Brooklyn Resources Recovery, 309 AD2d 931, 932; Chaudhry v. Garvale, 262 AD2d 518, 519). If the language of the release is unequivocal, a court may not look to extrinsic evidence to determine the parties’ intent (see Rivera v. Wyckoff Hgts. Med. Ctr., 113 AD3d 667; Rodriguez v. Saal, 51 AD3d 449, 450; Rubycz-Boyar v. Mondragon, 15 AD3d 811, 812; Electronic Bankcard Sys. v. Shiner, 305 AD2d 366, 368; see also Greenfield v. Philles Records, 98 NY2d 562, 569). A valid general release without any limiting language will apply not only to known claims, but also unknown claims between the parties that may have existed prior to the release (see Kulkarni v. Arredondo & Co., LLC, 151 AD3d 705; Rivera v. Wyckoff Hgts. Med. Ctr., 113 AD3d at 670-671). A signed release shifts the burden to the plaintiff to demonstrate that there was fraud, duress or some other fact sufficient to void the release (see Kulkarni v. Arredondo & Co., LLC, 151 AD3d at 706).Here, the release is unambiguously limited to tortfeasors jointly liable with the Medical Center. ”At common law the joint and several liability imposed on joint tort-feasors was indivisible, and any one of the joint tort-feasors was liable to the injured party for the entire damage” (Musco v. Conte, 22 AD2d 121, 123; see Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 NY2d 57). A hospital is not vicariously liable for the malpractice of independently retained doctors who are not employees of the hospital or are not held out as agents of the hospital (see Hill v. St. Clare’s Hosp., 67 NY2d 72; Gattling v. Sisters of Charity Med. Ctr., 150 AD3d 701). Here, the defendants do not contend that the defendant doctors were employees of the Medical Center, or that they held themselves out as agents of the Medical Center. As such, there would be no basis for joint liability with the Medical Center. Further, the injuries claimed in this action are different from those claimed against and settled with the Medical Center. The lost crown and broken teeth caused by the anesthesiologist, an employee of the Medical Center, are completely distinct from the damages claimed in this action. Accordingly, the release of the Medical Center did not discharge the defendants in this case because they were not joint tortfeasors.The cases relied upon by the defendants are distinguishable either because the released party and the defendant were actually joint tortfeasors, or because the release did not contain any limiting language (see Fiakpoey v. Middlesworth, 118 AD3d 743; Rivera v. Wyckoff Hgts. Med. Ctr., 113 AD3d 667; Koufakis v. Siglag, 85 AD3d 872; Rodriguez v. Saal, 51 AD3d 449; Rubycz-Boyer v. Mondragon, 15 AD3d 811).Accordingly, the Supreme Court erred in granting the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Joyce Lan Zhen Zhao res, v. Na Chan, et al., appellants def — (Index No. 25849/10)Vincent S. Wong, New York, NY, for respondents.Appeal from a judgment of the Supreme Court, Kings County (Richard N. Allman, Ct. Atty. Ref.), dated December 1, 2014. The judgment, after a nonjury trial, is in favor of the plaintiffs and against the defendants Na Chan and Tak Ching Chan in the total principal sum of $882,650.ORDERED that the appeal is dismissed, with costs.The plaintiffs commenced this action, inter alia, to recover damages for violations of the Securities Act of 1933 (15 USC §77e et seq.). On December 1, 2014, after a nonjury trial, the Supreme Court issued a judgment in favor of the plaintiffs and against the defendants Na Chan and Tak Ching Chan (hereinafter together the defendants). The defendants appeal from the judgment.“‘An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal’” (Swift v. Broadway Neon Sign Corp., 137 AD3d 893, 893, quoting NYCTL 1998-1 Trust v. Shahipour, 29 AD3d 965, 965). ”The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony” (Beizer v. Swedish, 125 AD3d 703, 703 [internal quotation marks omitted). "'An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix'" (Diana v. DeLisa, 151 AD3d 806, 808-809, quoting Lo Gerfo v. Lo Gerfo, 30 AD2d 156, 157). Here, since the appendix, which contained only limited portions of the trial transcripts, is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Aguiar-Consolo v. City of New York, 113 AD3d 707, 708).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Dante Viggiano, ap --- (Ind. No. 211/14)Eric Nelson, Staten Island, NY, for appellant.Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered February 25, 2016, convicting him of murder in the first degree, murder in the second degree, attempted murder in the second degree, burglary in the second degree, and assault in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.On the night of August 31, 2014, the defendant broke into the home of a husband and wife and stabbed them both repeatedly in the head and neck. The husband died from his injuries. Prior to trial, defense counsel notified the People that he would present the affirmative defense of mental disease or defect (see CPL 250.10[1]). Following the presentation of the People’s direct case, defense counsel sought to present the defense of diminished capacity, alleging that the defendant’s schizophrenia diminished his capacity to form the intent to commit the subject crimes. Defense counsel conceded that he did not give the People proper notice of this defense (see CPL 250.10[3]). The Supreme Court denied the application.The defendant then presented the testimony of his mother and brother. His mother testified that he was first hospitalized for psychosis in 2010, when he was 16 years old. His mother and brother both testified regarding his past irrational behaviors, which included cutting himself with knives. The defendant further presented the testimony of two psychiatrists, both of whom diagnosed him with a mental disease.In rebuttal, the People presented the testimony of two forensic psychologists and a psychiatrist. The People’s psychiatrist agreed that the defendant suffered from schizophrenia, but opined that he was criminally responsible for his actions. The psychiatrist read into the record an undated entry from the defendant’s journal, which appeared after a journal entry dated July 15, 2014. The undated entry stated, in part, “Example, commit murder in a specific way. Don’t leave any traces.” The psychiatrist testified that this entry demonstrated that the defendant was thinking about committing a murder and hiding the evidence, which showed that the defendant “could appreciate that killing was wrong and that it was illegal and something that needed to be hidden.”Viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence that would have permitted the jury to conclude that the defendant lacked the ability to form the requisite intent. Therefore, no specific instructions to the jury were required on that issue (see People v. Sparks, 29 NY3d 932, 934; People v. Odinga, 143 AD2d 202). The jury was instructed that intent means a “conscious objective or purpose,” which was an element of each of the crimes charged that had to be established beyond a reasonable doubt. No objection was raised to the instructions as given.The defendant’s remaining contentions are without merit.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Austin, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.MATTER of Opal N. Henry, res, v. Winston D. Tucker, ap — (Docket Nos. V-9601-07/15F, V-9602-07/15F, V-9603-07/15F)Winston Tucker, sued herein as Winston D. Tucker, Jamaica, NY, appellant pro se.Steven P. Forbes, Jamaica, NY, for respondent.Toba Beth Stutz, Jamaica, NY, attorney for the children.Appeal from an order of the Family Court, Queens County (Mildred T. Negron, J.), dated July 14, 2016. The order, insofar as appealed from, after a hearing, granted the mother’s petition to modify a prior order of visitation dated July 26, 2013, so as to terminate the father’s visitation with the parties’ children to the extent of directing that the father has only supervised therapeutic visitation with the children.ORDERED that the order dated July 14, 2016, is affirmed insofar as appealed from, without costs or disbursements.The parties are the parents of three children, of whom the mother has custody. The mother commenced this proceeding to modify a prior visitation order, dated July 26, 2013, so as to terminate the father’s visitation with the children. The Family Court granted the petition to the extent of directing that the father has only supervised therapeutic visitation with the children. The father appeals.“A party seeking to modify a prior visitation order must show that there has been a sufficient change in circumstances since the entry of the order such that modification is warranted to further the children’s best interests” (Matter of Licato v. Jornet, 146 AD3d 787, 787). ”Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child” (Cervera v. Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Powell v. Blumenthal, 35 AD3d 615, 616). ”‘The determination of whether visitation should be supervised is a matter left to the trial court’s sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record’” (Matter of Kraft v. Orsini, 136 AD3d 916, 917, quoting Irizarry v. Irizarry, 115 AD3d 913, 914-915). Here, contrary to the father’s contention, the Family Court’s determination that supervised therapeutic visitation was in the best interests of the children has a sound and substantial basis in the record and will not be disturbed (see Matter of Torres v. Ojeda, 108 AD3d 570, 571).The father’s remaining contentions are without merit.AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.Constructamax, Inc., ap, v. Dodge Chamberlin Luzine Weber, Associates Architects, LLP, res — (Index No. 23631/10)In an action for contractual and common-law indemnification, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated February 2, 2016, which denied its motion for leave to renew its prior motion to extend the time to file a note of issue, which had been denied in an order of the same court dated September 28, 2015, and for leave to renew its opposition to the defendant’s prior motion pursuant to CPLR 3126 to dismiss the amended complaint, which had been granted in the order dated September 28, 2015.ORDERED that the order dated February 2, 2016, is affirmed, with costs.In this action for contractual and common-law indemnification, in an order dated September 28, 2015, the Supreme Court denied the plaintiff’s motion to extend the time to file a note of issue and granted the defendant’s motion pursuant to CPLR 3126 to dismiss the amended complaint. The plaintiff filed a notice of appeal from the order dated September 28, 2015, but in an order on application dated September 2, 2016, this Court granted the plaintiff’s application to withdraw that appeal. The plaintiff then moved for leave to renew its prior motion to extend the time to file a note of issue and its opposition to the defendant’s prior motion pursuant to CPLR 3126 to dismiss the amended complaint. The Supreme Court denied that 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]; see United Med. Assoc., PLLC v. Seneca Ins. Co., Inc., 125 AD3d 959, 960; Ali v. Verizon N.Y., Inc., 116 AD3d 722). ”‘Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion’” (Varela v. Clark, 134 AD3d 925, 926, quoting Stone v. Bridgehampton Race Circuit, 244 AD2d 403, 403).Here, in support of its motion for leave to renew, the plaintiff submitted the same facts, with some elaboration and in slightly greater detail, that it had submitted on the prior motions. These facts were merely cumulative to the facts previously presented. Also, in both instances, the factual assertions were submitted by an attorney affirmation; no affidavit was submitted by someone with personal knowledge (see Prince v. Accardo, 54 AD3d 837, 838).Moreover, the plaintiff failed to offer a reasonable justification for the failure to present the allegedly new facts on the prior motion (see CPLR 2221[e][3]; Dervisevic v. Dervisevic, 89 AD3d 785, 786-787). In any event, consideration of the allegedly new facts does not warrant a different outcome (see CPLR 2221[e][2]; NYCTL 1999-1 Trust v. Surf Coney Is., Inc., 63 AD3d 1023, 1024).Accordingly, the Supreme Court properly denied the plaintiff’s motion for leave to renew.The plaintiff’s contentions regarding the order dated September 28, 2015, are not properly before this Court, as the plaintiff withdrew its appeal from that order (see Affordable Hous. Assoc., Inc. v. Town of Brookhaven, 150 AD3d 800, 803).BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hall, Duffy and Barros, JJ.PEOPLE, etc., res, v. Gamaliel Nieves, ap — (Ind. No. 1184/13)Neal D. Futerfas, White Plains, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Jason R. Richards and Kevin C. King of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William O’Brien, J.), rendered May 18, 2015, convicting him of attempted robbery in the second degree and assault in the second 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 (George R. Peck, J.), of the suppression of the defendant’s statements to law enforcement officials.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the Supreme Court properly denied suppression of statements he made to law enforcement officials prior to having received Miranda warnings (see Miranda v. Arizona, 384 US 436) concerning the location of a gun. Under the circumstances of this case, the officer’s question to the defendant was permissible under the public safety exception to the requirement of Miranda warnings (see New York v. Quarles, 467 US 649; People v. Golden, 147 AD3d 780).Contrary to the defendant’s contention, the Supreme Court did not err in admitting evidence of certain prior bad acts committed by the defendant. The evidence was relevant to establish the defendant’s motive for the charged assault, to provide “‘necessary background information,’” and to place “‘the charged conduct in context’” (People v. Gamble, 18 NY3d 386, 398, quoting People v. Dorm, 12 NY3d 16, 19; see People v. Jean, 127 AD3d 882, 882; People v. Wisdom, 120 AD3d 724, 725-726). Moreover, the court gave a sufficient limiting instruction regarding the use the jury could make of the evidence, which the jury is presumed to have followed (see People v. Curran, 139 AD3d 1085, 1087; People v. Maitland, 136 AD3d 1058, 1059).The defendant argues that the evidence supporting his conviction of attempted robbery in the second degree was not legally sufficient and that the verdict of guilt on that count was against the weight of the evidence. 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 attempted robbery in the second degree 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 demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt of attempted robbery in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.By Priscilla Hall, J.P.; Austin, Sgroi and Christopher, JJ.Elvia Irizarry, res, v. Felice Realty Corp., et al., ap — (Index No. 13154/10)In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Baily-Schiffman, J.), dated October 22, 2015, which denied their motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff was injured when she slipped and fell in the bathroom at her workplace. The premises were leased by the plaintiff’s employer from the defendant Felice Realty Corp. (hereinafter Felice). The defendant Rentar Development Corp. (hereinafter Rentar) was the managing agent for the premises. The plaintiff thereafter commenced this action alleging that she slipped on water which had accumulated on the bathroom floor as a result of a leak from a malfunctioning hot water heater. The plaintiff testified at her deposition that, shortly after the accident, both a coworker as well as someone wearing a Rentar uniform told her that there had been a leak in the bathroom the night before and it had been cleaned up. Following discovery, the defendants moved for summary judgment dismissing the complaint, asserting that Felice was an out-of-possession landlord and that the defendants had no notice of the defective hot water heater. The Supreme Court denied the motion, and the defendants appeal.An out-of-possession landlord and its agent are not liable for injuries caused by dangerous conditions on leased premises in the absence of a statute imposing liability, a contractual provision placing the duty to repair on the landlord, or a course of conduct by the landlord giving rise to a duty (see Rivera v. Nelson Realty, LLC, 7 NY3d 530, 534; Volpe v. Hudson View Assoc., LLC, 109 AD3d 814, 815; Alnashmi v. Certified Analytical Group, Inc., 89 AD3d 10, 18).Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. They submitted a copy of the lease, which established that Felice was required to remedy “any defective condition in any plumbing, heating system or electrical lines located in the demised premises” following prompt notice by the tenant. The defendants’ submissions, however, failed to eliminate all triable issues of fact, including whether they had actual or constructive notice of the allegedly defective hot water heater, thereby placing upon them the duty to repair it pursuant to the lease. Accordingly, the motion was properly denied, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.By Leventhal, J.P.; Duffy, Lasalle and Christopher, JJ.PEOPLE, etc., res, v. Christopher Robinson, ap — (Ind. No. 94/12)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 April 6, 2016 (People v. Robinson, 138 AD3d 764), affirming a judgment of the Supreme Court, Nassau County, rendered April 17, 2013.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., DUFFY, LASALLE and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Sean Johnstone, ap — (Ind. No. 4825/08)Appeal by the defendant from a judgment of the Supreme Court, Kings County (John Walsh, J.), rendered March 14, 2011, convicting him of conspiracy in the fourth degree, after a nonjury trial, 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 conspiracy in the fourth degree (Penal Law §105.10[1]) 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 factfinder’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).The defendant’s argument that hearsay statements were improperly admitted into evidence is unpreserved for appellate review and, in any event, without merit (see People v. Caban, 5 NY3d 143, 148; People v. Adames, 53 AD3d 503, 503; People v. Santos, 38 AD3d 574).The defendant’s remaining contention is without merit.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Angel Gonzalez, ap, v. 231 Maujer Street, HDFC, et al., res — (Index No. 510394/15)Appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 20, 2015. The order, insofar as appealed from, after a hearing, denied that branch of the plaintiff’s motion which was pursuant to CPLR 6301 to preliminarily enjoin all proceedings in a holdover proceeding entitled Matter of 231 Maujer Street Housing Development Fund Corporation v. Gonzalez, pending in the Civil Court, Kings County, under Index No. 64032/15, pending hearing and determination of this action and, sua sponte, directed dismissal of the complaint in this action.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint in this action is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is modified, on the law, by deleting the provision thereof which, sua sponte, directed dismissal of the complaint in this action; as so modified, the order is affirmed, without costs or disbursements.The plaintiff commenced this action in the Supreme Court, Kings County, seeking, inter alia, a judgment declaring, in effect, that he was the owner of the shares of stock allocated to a cooperative apartment in a building owned and operated by 231 Maujer Street Housing Development Fund Corporation, sued herein as 231 Maujer Street, HDFC (hereinafter 231 Maujer). After commencing the action, the plaintiff moved, inter alia, pursuant to CPLR 6301 to preliminarily enjoin all proceedings in a related holdover proceeding 231 Maujer had commenced against him in the Civil Court, Kings County, pending hearing and determination of this action. A hearing was held on the motion, at which documentary and testimonial evidence was presented by both parties. At the conclusion of the hearing, the Supreme Court, inter alia, denied that branch of the motion which was for a preliminary injunction and, sua sponte, directed dismissal of the complaint in this action. The plaintiff appeals.The Supreme Court properly denied that branch of the plaintiff’s motion which was for a preliminary injunction. To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (see CPLR 6301; Matter of Armanida Realty Corp. v. Town of Oyster Bay, 126 AD3d 894; M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v. Werner, 126 AD3d 859, 860; Mangar v. Deosaran, 121 AD3d 650). ”The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” (Matter of Armanida Realty Corp. v. Town of Oyster Bay, 126 AD3d at 894-895 [internal quotation marks omitted]; see Doe v. Axelrod, 73 NY2d 748, 750). Here, the plaintiff did not sustain his burden of establishing a likelihood of success on the merits.However, inasmuch as there was neither notice to the parties by the Supreme Court nor an application by the defendant seeking dismissal, it was error for the court to, sua sponte, direct the dismissal of the complaint in this action (see Abinanti v. Pascale, 41 AD3d 395; see also Bay Head, Inc. v. New York State Dept. of Envtl. Conservation, 138 AD3d 905, 906; Danica Group, LLC v. Kent Realty, LLC, 41 AD3d 419, 420).The parties’ remaining contentions are not properly before this Court or need not be reached in light of our determination.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.First Franklin Financial Corporation, ap, v. Rafael E. Alfau def — (Index No. 13139/08)In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Greco, Jr., J.), entered October 16, 2015, which, upon a decision of the same court (Rios, J.) dated October 28, 2013, denied its unopposed motion for leave to enter a default judgment, to appoint a referee, to reform the subject mortgage to add the name of the defendant Herminia I. Alfau as a mortgagor, to amend the caption to excise the defendants “John Doe #2″ through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10, as the plaintiff, and, sua sponte, dismissed the complaint.ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof dismissing the complaint, and (2) by deleting the provisions thereof denying those branches of the plaintiff’s motion which were to amend the caption to excise the defendants “John Doe #2″ through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10, as the plaintiff, and substituting therefor a provision granting those branches of the motion; as so modified, the order and judgment is affirmed, without costs or disbursements, and the complaint is reinstated.In 2005, the defendant Rafael E. Alfau mortgaged property located in Queens that was owned by his wife, the defendant Herminia I. Alfau (hereinafter together the Alfau defendants). In May 2008, the plaintiff commenced this action against, among others, the Alfau defendants, alleging that Rafael defaulted by failing to make the monthly payment due in February 2008. The complaint asserted causes of action, inter alia, to foreclose the mortgage, to reform the mortgage to add Herminia as a mortgagor, since she owned the property, or, alternatively, to impose an equitable lien or equitable mortgage on the property.After the Alfau defendants’ time to appear or answer the complaint expired, the plaintiff moved for leave to enter a default judgment, to appoint a referee, to reform the mortgage to add Herminia as a mortgagor, and to amend the caption to excise the defendants “John Doe #2″ through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitute U.S. Bank National Association, as trustee for the holders of the First Franklin Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2005-FF10 (hereinafter USBank), as the plaintiff. The Supreme Court issued a decision dated October 28, 2013, concluding that the unopposed motion should be denied. Thereafter, the plaintiff moved, inter alia, in effect, for leave to renew its prior motion. In an order dated October 23, 2014, the court denied that branch of the motion which was for leave to renew. Subsequently, the court entered an order and judgment denying the plaintiff’s motion, inter alia, for leave to enter a default judgment and, sua sponte, dismissed the complaint. The plaintiff appeals.“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Glenwood Mason Supply Co., Inc. v. Frantellizzi, 138 AD3d 925, 926 [internal quotation marks omitted]; see CPLR 3215[f]; Boudine v. Goldmaker, Inc., 130 AD3d 553; DLJ Mtge. Capital, Inc. v. United Gen. Tit. Ins. Co., 128 AD3d 760, 761; Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649). ”To demonstrate ‘the facts constituting the claim,’ the movant need only submit sufficient proof to enable a court to determine if the claim is viable” (Global Liberty Ins. Co. v. W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 769; see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71; Mortgage Elec. Registration Sys., Inc. v. Smith, 111 AD3d 804).Here, since the Alfau defendants defaulted in appearing or answering the complaint and failed to demonstrate grounds for vacating their default, they were precluded from asserting lack of standing as a defense. Accordingly, it was unnecessary for the plaintiff to demonstrate that it had standing to commence the action in order to establish its entitlement to a default judgment (see Bank of N.Y. Mellon v. Izmirligil, 144 AD3d 1067, 1069-1070).Nevertheless, the plaintiff failed to submit the requisite proof of the facts constituting the claim (see DLJ Mtge. Capital, Inc. v. United Gen. Tit. Ins. Co., 128 AD3d at 762). ”While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge” (id. [citation omitted]; see CPLR 3215[f]). ”‘[A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits’” (DLJ Mtge. Capital, Inc. v. United Gen. Tit. Ins. Co., 128 AD3d at 762,        quoting Triangle Props. #2, LLC v. Narang, 73 AD3d 1030, 1032). On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed.Since the plaintiff’s motion papers failed to set forth sufficient facts to enable the Supreme Court to determine whether there exists a viable cause of action, the court properly denied those branches of the plaintiff’s motion which were for leave to enter a default judgment, to appoint a referee, and to reform the mortgage. However, the plaintiff’s submissions were sufficient to grant those branches of its motion which were to amend the caption to excise the defendants “John Doe #2″ through “John Doe #10,” substitute Pilar Luna as a defendant in place of “John Doe #1,” and substitute USBank as the plaintiff. Since standing was not in issue, there was no bar to substituting USBank as the plaintiff and to amend the caption accordingly (see TCIF REO GCM, LLC v. Walker, 139 AD3d 704, 706).The Supreme Court properly denied that branch of the plaintiff’s subsequent motion which was, in effect, for leave to renew. The documentary evidence submitted on that motion, consisting of, inter alia, a HUD-1 Settlement Statement and a satisfaction of mortgage, which indicated that the proceeds from the mortgage loan in issue in this case were used to satisfy a mortgage in Herminia’s name, should have been submitted in support of the plaintiff’s original motion as proof of facts of an equitable lien against the property owned by her, and the plaintiff failed to provide a reasonable justification for not submitting the documentation in support of its original motion (see CPLR 2221[e][3]; Putterman v. Wenk-Wolff, 92 AD3d 746, 747; Ruddock v. Boland Rentals, 5 AD3d 368, 371).Finally, the Supreme Court should not have dismissed the complaint sua sponte (see U.S. Bank, N.A. v. Razon, 115 AD3d 739, 740). Accordingly, the complaint must be reinstated.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Austin, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Christopher Foster, ap — (Ind. No. 2328-13)Appeal by the defendant, by permission, from an order of the Supreme Court, Suffolk County (William J. Condon, J.), dated October 7, 2016, which, after a hearing, denied his motion pursuant to CPL 440.10(1)(g) to vacate a judgment of that court rendered November 13, 2015, convicting him of manslaughter in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.ORDERED that the order is affirmed.The defendant was convicted of manslaughter in the first degree and endangering the welfare of a child in connection with the death of his one-month-old son. The judgment of conviction was affirmed by this Court (see People v. Foster, 143 AD3d 736). The defendant moved to vacate the judgment of conviction pursuant to CPL 440.10(1)(g) based on newly discovered evidence, which consisted of an individual’s statement that she heard the victim’s maternal grandmother implicate the victim’s mother in the subject crimes. After a hearing at which this individual testified and at which the defendant did not call the maternal grandmother to testify, the Supreme Court denied the defendant’s motion. The court properly found that the defendant failed to meet his burden of establishing that the newly discovered evidence was of such a character as to create a probability that, had it been received at trial, the verdict would have been more favorable to the defendant (see CPL 440.10[1][g]; People v. Mazyck, 118 AD3d 728; People v. Cain, 96 AD3d 1072).Accordingly, the defendant’s motion to vacate the judgment of conviction was properly denied.AUSTIN, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Rupert Hicks, ap, v. Mohammed Azim Aibani, et al., respondents def — (Index No. 17329/13)In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Dufficy, J.), entered January 28, 2016, which, upon an order of the same court entered November 30, 2015, granting the motion of the defendants Mohammad Azim Aibani and Rukhsana Moledina-Aibani for summary judgment dismissing the complaint insofar as asserted against them, is in favor of those defendants and against him dismissing the complaint insofar as asserted against them.ORDERED that the judgment is affirmed, with costs.The plaintiff allegedly was injured while performing repair work at a one-family house owned by the defendants Mohammad Azim Aibani and Rukhsana Moledina-Aibani (hereinafter together the Aibanis). The plaintiff commenced this action to recover damages for personal injuries against the Aibanis and their contractor, the defendant Munesh Singh, alleging, inter alia, a violation of Labor Law §241(6). The Supreme Court granted the Aibanis’ motion for summary judgment dismissing the complaint insofar as asserted against them.Contrary to the plaintiff’s contention, the Supreme Court properly found that the statutory exemption contained in Labor Law §241(6) applied to the Aibanis. Labor Law §241(6) exempts from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” (see Pavon v. Koral, 113 AD3d 830, 831). The phrase “direct or control” is “construed strictly and refers to the situation where the owner supervises the method and manner of the work” (Miller v. Shah, 3 AD3d 521, 522 [internal quotation marks omitted]; see Garcia v. Petrakis, 306 AD2d 315, 316; Kolakowski v. Feeney, 204 AD2d 693).Here, it is undisputed that the Aibanis’ house was a one-family dwelling. Moreover, the Aibanis established, prima facie, that they did not direct or control the work (see Chowdhury v. Rodriguez, 57 AD3d 121, 127; Arama v. Fruchter, 39 AD3d 678, 679-680; Garcia v. Petrakis, 306 AD2d at 316). In opposition to the Aibanis’ prima facie showing, the plaintiff failed to raise a triable issue of fact (see Rodriguez v. Mendlovits, 153 AD3d 566; Chowdhury v. Rodriguez, 57 AD3d at 127; Garcia v. Petrakis, 306 AD2d at 316). Given the lack of evidence that the Aibanis supervised the method and manner of the work, the limited evidence that Mohammad Azim Aibani may have previously worked in the construction industry and that the Aibanis had excess insurance coverage does not create a triable issue of fact (cf. Rodriguez v. Gany, 82 AD3d 863, 863-864).Accordingly, the Supreme Court properly granted the Aibanis’ motion for summary judgment dismissing the complaint insofar as asserted against them.HALL, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.Lane Steinberg, ap, v. Astoria Warehouse Realty, LLC res — (Index No. 7657/14)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated October 21, 2016, as granted that branch of the motion of the defendants Astoria Warehouse Realty, LLC, and Dromos Corp., and that branch of the cross motion of the defendant A.L.A.C. Contracting Corporation, which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.The plaintiff alleged that on April 18, 2014, he was walking on the sidewalk abutting property known as 19-57 49th Street in Astoria, Queens, when he stepped on a two-inch nail protruding from a large section of plywood construction fencing lying on the sidewalk.Thereafter, the plaintiff commenced this action to recover damages for personal injuries against the defendants Astoria Warehouse Realty, LLC (hereinafter Astoria Warehouse), Dromos Corp. (hereinafter Dromos), and A.L.A.C. Contracting Corporation (hereinafter A.L.A.C.). At the time of the accident, Astoria Warehouse and Dromos were the alleged owner and property manager, respectively, of the subject premises, while A.L.A.C. was a contractor on site pursuant to a written contact with Astoria Warehouse. Astoria Warehouse and Dromos moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them, and A.L.A.C. cross-moved, among other things, for summary judgment dismissing the amended complaint insofar as asserted against it. The Supreme Court, inter alia, granted those branches of the motion and cross motion. The plaintiff appeals.Astoria Warehouse and Dromos established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against them. Contrary to the plaintiff’s contention, those defendants demonstrated, prima facie, that they lacked constructive notice of the condition alleged (see Berardi v. Incorporated Vil. of Garden City, 115 AD3d 631). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the motion of Astoria Warehouse and Dromos which was for summary judgment dismissing the amended complaint insofar as asserted against them.Contrary to the plaintiff’s further contention, A.L.A.C. established its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it by demonstrating that it did not create the condition alleged or have notice thereof (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiff failed to raise a triable issue of fact. The remaining contentions of A.L.A.C. either need not be addressed in light of our determination or are without merit. Accordingly, the Supreme Court properly granted that branch of the cross motion of A.L.A.C. which was for summary judgment dismissing the amended complaint insofar as asserted against it.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Balkin, J.P.; Hall, Hinds-Radix and Christopher, JJ.J.P. Morgan Mortgage Acquisition Corp, plf, v. Michelle H. Kagan, appellant def; Wilmington Savings Fund Society, FSB, etc., nonparty-res — (Index No. 1086/12)Appeal from an order of the Supreme Court, Dutchess County (Christine A. Sproat, J.), dated February 17, 2015. The order, insofar as appealed from, granted those branches of the motion of nonparty Wilmington Savings Fund Society, FSB, as assignee of the plaintiff, which were for summary judgment on the complaint insofar as asserted against the defendant Michelle H. Kagan, to strike her answer with affirmative defenses and counterclaims, and to appoint a referee, and denied those branches of the cross motion of the defendant Michelle H. Kagan which were for summary judgment dismissing the complaint insofar as asserted against her or, in the alternative, to compel discovery.ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion of nonparty Wilmington Savings Fund Society, FSB, which were for summary judgment on the complaint insofar as asserted against the defendant Michelle H. Kagan, to strike her answer with affirmative defenses and counterclaims, and to appoint a referee, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.In December 2005, Michelle H. Kagan (hereinafter the defendant) borrowed the sum of $500,000 from M&T Mortgage Corporation (hereinafter M&T). The loan was memorialized by an adjustable rate note and secured by a mortgage delivered to Mortgage Electronic Registration Systems, Inc., as nominee for M&T. In 2012, the plaintiff, J.P. Morgan Mortgage Acquisition Corp (hereinafter JP Morgan), commenced this action to foreclose the mortgage.Thereafter, nonparty Wilmington Savings Fund Society, FSB (hereinafter Wilmington), as JP Morgan’s assignee, moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer with affirmative defenses and counterclaims, and to appoint a referee. The defendant cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her or, in the alternative, to compel discovery. In the order appealed from, the Supreme Court, inter alia, granted those branches of Wilmington’s motion and denied those branches of the defendant’s cross motion. The defendant appeals.In support of its motion, Wilmington submitted an affidavit of the managing director of its loan servicer, who attested to the defendant’s default in payment. While he attested to the mailing of a notice of default in accordance with the mortgage and a 90-day notice in accordance with RPAPL 1304, his affidavit did not contain a statement that he was familiar with JP Morgan’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 (see CitiMortgage, Inc. v. Pappas, 147 AD3d 900, 901). Accordingly, the Supreme Court should have denied those branches of Wilmington’s motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer with affirmative defenses and counterclaims, and to appoint a referee, without regard to the sufficiency of the defendant’s opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Despite the aforementioned deficiencies in Wilmington’s proof, the defendant failed to demonstrate, prima facie, JP Morgan’s lack of standing (see Filan v. Dellaria, 144 AD3d 967, 975), or that the action should be dismissed based upon JP Morgan’s failure to comply with conditions precedent (cf. CitiMortgage, Inc. v. Pappas, 147 AD3d at 902; Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106). The defendant’s remaining contentions are either without merit or not properly before this Court. Accordingly, the Supreme Court properly denied those branches of the defendant’s cross motion which were for summary judgment dismissing the complaint insofar as asserted against her or, in the alternative, to compel discovery.BALKIN, J.P., HALL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of 148 South Emerson Partners, LLC, pet-res, v. 148 South Emerson Associates, LLC, res; Drew Doscher, etc., intervenor res-res — (Index No. 605850/15)Appeal from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated April 14, 2016. The order, insofar as appealed from, after a framed-issue hearing, sua sponte, determined that there is no leasehold between the petitioner and the respondent.ORDERED that on the Court’s own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed insofar as appealed from, with costs.Drew Doscher, Michael Meagher, Michael Meyer, and Stephen Smith (hereinafter collectively the managing members) formed two limited liability companies, 148 South Emerson Partners, LLC (hereinafter Emerson Partners), and 148 South Emerson Associates, LLC (hereinafter Emerson Associates). Emerson Partners was formed to “own, lease and manage” real property located at 148 South Emerson Avenue in Montauk (hereinafter the property). Emerson Associates, in accordance with its corporate purpose, owns and manages a restaurant business on the property. Initially, the managing members each held a 25 percent ownership interest in both Emerson Partners and Emerson Associates. However, in July 2012, Meagher and Smith assigned their respective ownership interests in Emerson Associates to Meyer and Doscher.On April 3, 2015, a special meeting of Emerson Partners was called by Meagher and Meyer to vote on a resolution to evict Emerson Associates from the property. The meeting was held on April 13, 2015, at which time Meagher, Meyer, and Smith voted in favor of the proposed resolution to evict, and Doscher opposed. On April 14, 2015, Emerson Partners issued a “Notice of Termination of Tenancy” to Emerson Associates, stating that “by no later than May 15, 2015… [Emerson Associates] must surrender possession of the [property]” to Emerson Partners. Three days after Emerson Associates was supposed to vacate the property, Doscher’s attorney produced a copy of a purported lease entered into between Emerson Partners and Emerson Associates (hereinafter the lease). The lease was undated, and the names of the persons who signed the lease on behalf of Emerson Partners and Emerson Associates were not printed below the signature lines.By order to show cause dated June 4, 2015, Emerson Partners commenced this summary holdover proceeding pursuant to RPAPL 711(1) against Emerson Associates to evict it from the property. Doscher was granted leave to intervene. A framed-issue hearing was held as to the validity of the lease, in which all parties participated. After the hearing, in an order dated April 14, 2016, the Supreme Court, inter alia, determined that there was no leasehold between Emerson Partners and Emerson Associates. Doscher appeals.On appeal, Doscher argues that the lease is valid because it was ratified by Emerson Partners. ”‘An unauthorized execution of an instrument affecting the title to land or an interest therein may be ratified by the owner of the land or interest so as to be binding on him’” (Lipman v. Vebeliunas, 39 AD3d 488, 490, quoting Holm v. C.M.P. Sheet Metal, 89 AD2d 229, 232). ”‘The act of ratification, whether express or implied, must be performed with full knowledge of the material facts relating to the transaction, and the assent must be clearly established and may not be inferred from doubtful or equivocal acts or language’” (Lipman v. Vebeliunas, 39 AD3d at 490, quoting Holm v. C.M.P. Sheet Metal, 89 AD2d at 233; see DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp., 134 AD3d 1418, 1419-1420; American Motorists Ins. Co. v. Keep Servs., Inc., 63 AD3d 865, 867).Contrary to Doscher’s contention, the evidence at the hearing did not establish that Emerson Partners ratified the lease with full knowledge of all the material facts relating to the lease (see CIT Tech. Fin. Servs. I LLC v. Bronx Westchester Med. Group, P.C., 117 AD3d 567, 567; Holm v. C.M.P. Sheet Metal, 89 AD2d at 233). There was no evidence of any correspondence between the parties concerning the lease, the lease was not signed by Meagher, Meyer, or Smith, and there was no evidence that a copy of the lease was ever provided to Meagher, Meyer, and Smith (cf. O’Neill v. Vebeliunas, 136 AD3d 876, 877). Although Doscher claimed to have seen the lease in 2011, it was only belatedly produced in this proceeding by his attorneys after their “searches and inquiries” uncovered it.In addition, while it was undisputed that since 2011 Emerson Associates paid various expenses related to the property, including real estate taxes and general liability insurance, and paid for approximately $1 million in improvements to the property, there was no evidence that Emerson Associates made those payments pursuant to the lease or that Emerson Partners received those benefits with knowledge of the lease or its terms. Similarly, while there was evidence that Emerson Associates paid rent to Emerson Partners in 2012, the rental payments did not correlate to the monthly or annual rent required under the lease.Accordingly, under these circumstances, the Supreme Court properly determined that there was no leasehold between Emerson Partners and Emerson Associates.Doscher’s argument that Emerson Associates’ partial performance under the lease precluded application of the statute of frauds is not properly before this Court, since it was improperly raised for the first time on appeal (see Williams v. City of New York, 153 AD3d 1301).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of 148 South Emerson Partners, LLC, pet-res, v. 148 South Emerson Associates, LLC, res; Drew Doscher, etc., intervenor res-res — (Index No. 605850/15)Appeal from stated portions of an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated April 15, 2016. The order, inter alia, denied those branches of the intervenor respondent’s motion which were for summary judgment dismissing the petition and to disqualify the petitioner’s counsel from representing the petitioner in this proceeding.ORDERED that the order is affirmed insofar as appealed from, with costs.Many of the essential facts underlying this summary holdover proceeding are recited in the decision and order of this Court determining the related appeal (see Matter of 148 South Emerson Partners, LLC v. 148 South Emerson Associates, LLC, __ AD3d __ [Appellate Division Docket No. 2016-05032; decided herewith]). On December 28, 2015, the intervenor-respondent, Drew Doscher, moved, inter alia, for summary judgment dismissing the petition and to disqualify counsel for the petitioner, 148 South Emerson Partners, LLC (hereinafter Emerson Partners), from representing Emerson Partners in this proceeding. In an order dated April 15, 2016, the Supreme Court, inter alia, denied those branches of Doscher’s motion. Doscher appeals.Doscher failed to demonstrate that the notice of termination served by Emerson Partners on the respondent, 148 South Emerson Associates, LLC (hereinafter Emerson Associates), was defective or that a notice to cure was required (see Real Property Law §228; Genesee Conservation Found. v. Oatka Fish & Game Club, 63 AD2d 1115, 1115). Contrary to Doscher’s contention, the demand and notice requirements of RPAPL 711(2) are inapplicable here, as this proceeding was expressly commenced pursuant to RPAPL 711(1).Moreover, contrary to Doscher’s contention, the petition adequately set forth the material facts upon which the proceeding was based, and was sufficiently particular to give the Supreme Court and Emerson Associates adequate notice of the transaction and the material elements of the proceeding (see RPAPL 741; Boll v. Shanly, 34 AD2d 875, 876). To the extent that the petition pleaded alternative theories supporting eviction by alleging that the purported lease was not valid and, in any event, that Emerson Associates’ tenancy was properly terminated under the terms of that lease, the court resolved any inconsistency in the pleading by determining, after a framed-issue hearing, that no leasehold existed between Emerson Partners and Emerson Associates.The Supreme Court properly denied that branch of Doscher’s motion which was to disqualify Emerson Partners’ counsel. ”A party’s entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted” (Homar v. American Home Mtge. Acceptance, Inc., 119 AD3d 901, 901 [internal quotation marks omitted]). Doscher failed to sustain his burden of demonstrating that disqualification was warranted in this matter (see Scialdone v. Stepping Stones Assoc., L.P., 148 AD3d 950, 952; Kelleher v. Adams, 148 AD3d 692).Doscher’s remaining contentions are without merit.Accordingly, the Supreme Court, inter alia, properly denied those branches of Doscher’s motion which were for summary judgment dismissing the petition and to disqualify Emerson Partners’ counsel from representing Emerson Partners in this proceeding.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Rivera, J.P.; Leventhal, Maltese and Duffy, JJ.PEOPLE, etc., ex rel. Samantha Seda, on behalf of Jordan Stephens, pet, v. David Hansell, etc., res — Writ of habeas corpus in the nature of an application pursuant to CPL 180.80 to release the defendant in a criminal action entitled People v. Stephens, commenced in the Criminal Court of the City of New York, Queens County, under Docket No. CR-027129-17QN.ADJUDGED that the writ is dismissed as academic, without costs or disbursements.The writ must be dismissed as academic because the defendant has been released from custody (see People ex rel. Vancour v. Scoralick, 140 AD2d 658; see also People ex rel. Lassiter v. Schriro, 114 AD3d 593, 594).RIVERA, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.By Rivera, J.P.; Leventhal, Maltese and Duffy, JJ.PEOPLE, etc., ex rel. Samantha Seda, on behalf of Janiel Semoy, pet, v. Cynthia Brann, etc., res — Writ of habeas corpus in the nature of an application pursuant to CPL 180.80 to release the defendant in a criminal action entitled People v. Semoy, commenced in the Criminal Court of the City of New York under Queens County Docket No. CR-030433-17QN.ADJUDGED that the writ is dismissed, without costs or disbursements.Under the circumstances presented, the petitioner has not established that the defendant is entitled to habeas corpus relief (see generally People ex rel. Nizin v. Schriro, 77 AD3d 692).RIVERA, J.P., LEVENTHAL, MALTESE and DUFFY, JJ., concur.Motion List released on:January 24, 2018MATTER of Tameka A. Brodie, ap, v. Ricardo A. Sepulveda, res — Appeal by Tameka A. Brodie from an order of the Family Court, Queens County, dated May 11, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the attorney for the child to serve and file a brief on the appeal is enlarged until February 21, 2018.MATTER of Mayra C. (Anonymous). Administration for Childrens Services, petitioner- appellant; Adan C. (Anonymous) respondents- res — (Proceeding No. 1)MATTER of Daniela C. (Anonymous). Administration for Childrens Services, petitioner- appellant; Adan C. (Anonymous) respondents- res — (Proceeding No. 2)MATTER of Alma R. C. (Anonymous). Administration for Childrens Services, petitioner- appellant; Adan C. (Anonymous) respondents- res — (Proceeding No. 3)MATTER of Angel C. (Anonymous). Administration for Childrens Services, petitioner- appellant; Adan C. (Anonymous) respondents- res — (Proceeding No. 4)MATTER of Alexandra C. (Anonymous). Administration for Childrens Services, petitioner- appellant; Adan C. (Anonymous) respondents- res — (Proceeding No. 5) N-19537/15, N-19538/15) — Appeal by Administration for Children’s Services from an order of the Family Court, Kings County, dated July 28, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent and the attorneys for the children to serve and file their respective briefs on the appeal is enlarged until February 20, 2018.MATTER of Tyriek J. (Anonymous). Suffolk County Department of Social Services, petitioner-res, Tamika J. (Anonymous), res-res — Appeal by Tamika J. from an order of the Family Court, Suffolk County, dated May 7, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the petitioner-respondent to serve and file a brief on the appeal is enlarged until February 20, 2018.MATTER of Saphora Magana, res, v. Dirk Delph, ap — Appeals by Dirk Delph from two orders of the Family Court, Kings County, both dated May 30, 2017. The appellant’s brief was filed in the office of the Clerk of this Court on January 18, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this  , the briefs for the respondent and the attorneys for the children in the above-entitled appeals shall be served and filed.MATTER of Jamayla C. M. (Anonymous). New York Foundling Hospital, petitioner-res, Marcela A. C. (Anonymous), a/k/a Marcela C. (Anonymous), a/k/a Marcela O. (Anonymous), res-res — (Proceeding No. 1)MATTER of Marcela C. R. (Anonymous), a/k/a Marcela R. (Anonymous). New York Foundling Hospital, petitioner-res, Marcela A. C. (Anonymous), a/k/a Marcela C. (Anonymous), a/k/a Marcela O. (Anonymous), res-res — (Proceeding No. 2) — Appeals by Marcela A. C., a/k/a Marcela C., a/k/a Marcela O., from two orders of the Family Court, Queens County, both dated May 17, 2017.The appellant’s brief was filed in the office of the Clerk of this Court on January 18, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this  , the briefs for the respondent and the attorney for the children in the above-entitled appeals shall be served and filed.MATTER of Tanika H. (Anonymous), res, v. Travaris E. M. (Anonymous), Sr., ap — (Proceeding No. 1)MATTER of Travaris E. M. (Anonymous), Sr., ap, v. Tanika H. (Anonymous), res — (Proceeding No. 2) — Appeal by Travaris E. M. from an order of the Family Court, Kings County, dated March 10, 2017.The appellant’s brief was filed in the office of the Clerk of this Court on January 18, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this  , the briefs for the respondent and the attorney for the child in the above-entitled appeal shall be served and filed.MATTER of Thomas A. Ledbetter, res, v. Woodlyne Singer, ap — V-4865-15) — Appeal by Woodlyne Singer from an order of the Family Court, Kings County, dated August 10, 2017. The appellant’s brief was filed in the office of the Clerk of this Court on December 18, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the brief for the respondent in the above-entitled appeal shall be served and filed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Alexis B. (Anonymous). Administration for Childrens Services, petitioner- res, Julie K. (Anonymous), respondent- appellant res — Appeal by Julie K. from an order of the Family Court, Kings County, dated December 19, 2017. Pursuant to Family Court Act §§1118 and 1120, and upon the certification of Chas Budnick, Esq., dated December 21, 2017, it isORDERED that the following named attorney is assigned as counsel to prosecute the appeal:Brooklyn Defender ServicesFamily Defense Practice180 Livingston Street, Suite 300, 7th FloorBrooklyn, NY 11201ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the attorney for the child, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant’s counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant’s brief upon those parties; and it is further,ORDERED that assigned counsel shall serve a copy of this order upon the Clerk of the court from which the appeal is taken; and it is further,ORDERED that the appeal in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this Court by letter of the date the transcripts are received, or, in cases where there are no minutes of proceedings to be transcribed, within 60 days of the date of this  ; and it is further,ORDERED that within 30 days after the date of this order, the assigned counsel shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceeding to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation that the transcripts have been received, and indicating the date received; or(3) if the transcripts have not been received, an affidavit or affirmation stating that this order has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcripts are expected; or(4) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this  , the Clerk of the Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Gregory R. (Anonymous), ap — Appeal by Gregory R. from an order of the Family Court, Kings County, dated May 24, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent to serve and file a brief on the appeal is enlarged until February 20, 2018.MATTER of Gregory R. (Anonymous), ap — Appeal by Gregory R. from an order of the Family Court, Kings County, dated May 24, 2017. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the respondent to serve and file a brief on the appeal is enlarged until February 20, 2018.MATTER of Vincenta E. v. (Anonymous), ap, v. Alexander R. v. (Anonymous), res — Appeals by Vincenta E. V. from three orders of the Family Court, Nassau County, all dated September 20, 2017.The appellant’s brief was filed in the office of the Clerk of this Court on January 19, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the respondent’s brief shall be served and filed within 30 days of the date of this  .MATTER of Nialani T. (Anonymous). Administration for Childrens Services, petitioner- res, Elizabeth B. (Anonymous), respondent- ap — (Proceeding No. 1)MATTER of Aarielis G. T. (Anonymous). Administration for Childrens Services, petitioner- res, Elizabeth B. (Anonymous), respondent- ap — (Proceeding No. 2) — Appeals by Elizabeth B. from two orders of the Family Court, Queens County, dated March 28, 2016, and June 9, 2017, respectively. The appellant’s brief was filed in the office of the Clerk of this Court on January 18, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the briefs for the respondent and the attorney for the children in the above-entitled appeals shall be served and filed.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Markel C. (Anonymous). Nassau County Department of Social Services, petitioner-res, Kwanza H. (Anonymous), res-res — Appeal by Kwanza H. from an order of the Family Court, Nassau County, dated November 28, 2016. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the appellant’s time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]) and by serving and filing the appellant’s brief on the appeal is enlarged until February 23, 2018; and it is furtherORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Khadija J. K. (Anonymous), etc. SCO Family of Services, petitioner-res, Kadijatu F. K. (Anonymous), res-res — Appeal by Kadijatu F. K. from an order of the Family Court, Richmond County, dated December 19, 2016. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that the time for the petitioner-respondent to serve and file a brief on the appeal is enlarged until February 20, 2018.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Peter T. (Anonymous), Jr. Westchester County Department of Social Services, petitioner-res, Shay S. P. (Anonymous), a/k/a Shay S. T. (Anonymous), respondent-appellant res — Appeal by Shay S. P., a/k/a Shay S. T., from an order of the Family Court, Westchester County, dated October 31, 2017. Pursuant to Family Court Act §§1118 and 1120, and upon the certification of George E. Reed, Jr., Esq., dated January 12, 2018, it isORDERED that the appellant is granted leave to proceed as a poor person on the appeal and the following named attorney is assigned as counsel to prosecute the appeal:George E. Reed, Jr.222 Mamaroneck Avenue, Suite 303White Plains, NY 10605ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the appellant, the respondent, and the attorney for the child, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the stenographer(s) and/or the transcription service(s) is/are required promptly to make and certify two transcripts of the proceedings, if any, except for those minutes previously transcribed and certified (22 NYCRR 671.9); in the case of stenographers, both transcripts shall be filed with the clerk of the Family Court, and the clerk of the Family Court shall furnish one of such certified transcripts to the appellant’s assigned counsel, without charge; in the case of transcription services, one transcript shall be filed with the clerk of the Family Court and one transcript shall be delivered to the assigned counsel. Assigned counsel is directed to provide copies of said transcripts to all of the other parties to the appeal, including the attorney for the child, if any, when counsel serves the appellant’s brief upon those parties; and it is further,ORDERED that assigned counsel shall serve a copy of this order upon the clerk of the court from which the appeal is taken; and it is further,ORDERED that the appeal in the above-entitled proceeding shall be perfected either within 60 days after the receipt by the assigned counsel of the transcripts of the minutes of the proceedings in the Family Court, and the assigned counsel shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this order; and it is further,ORDERED that within 30 days after the date of this order, the assigned counsel shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of any Family Court proceeding to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation stating that the transcripts have been received, and indicating the date received; or(3) if the transcripts have not been received, an affidavit or affirmation stating that this order has been served upon the clerk of the court from which the appeal is taken, the date thereof, and the date by which the transcripts are expected; or(4) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the above actions described in (1), (2), (3), or (4) above, has been taken within 30 days of the date of this  , the Clerk of this Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.MATTER of Malachi M. (Anonymous). Administration for Childrens Services, petitioner-res, Mark M. (Anonymous), res-res — (Proceeding No. 1)MATTER of Malique R. (Anonymous). Administration for Childrens Services, petitioner-res, Mark M. (Anonymous), res-res — (Proceeding No. 2) — Appeal by Mark M. from an order of the Family Court, Kings County, dated May 18, 2017. The appellant’s brief was filed in the office of the Clerk of this Court on January 18, 2018. Pursuant to §670.4(a)(2) of the rules of this Court (see 22 NYCRR 670.4[a][2]), it isORDERED that within 30 days of the date of this order, the briefs for the petitioner-respondent and the attorney for the children in the above-entitled appeal shall be served and filed.By Miller, J.PEOPLE, etc., plf, v. Keith Knoesel, def — Application by the defendant pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the Supreme Court, Queens County, dated May 4, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Miller, J.PEOPLE, etc., plf, v. Victor Quiles, def — Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the County Court, Westchester County, dated June 12, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Maltese, J.PEOPLE, etc., plf, v. Thomas Williams, def — Application by the defendant, pursuant to CPL 450.15 and 460.15 for a certificate granting leave to appeal to this Court from an order of the County Court, Westchester County, dated June 27, 2017, which has been referred to me for determination.Upon the papers filed in support of the application and the papers filed in opposition thereto, it isORDERED that the application is denied.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.PEOPLE, etc., res, v. Wesley Brisset, ap — Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Richmond County, rendered September 29, 2016, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant’s and the respondent’s briefs; the parties are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant’s counsel, without charge (see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant’s brief on the respondent; and it is further,ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant’s sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney’s office prior to the filing of such brief or motion; and it is further,ORDERED that pursuant to County Law §722 the following named attorney is assigned as counsel to prosecute the appeal:Paul Skip Laisure, Esq.Appellate Advocates111 John Street – 9th FloorNew York, New York 10038and it is further,ORDERED that the appellant’s time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court’s rules (see 22 NYCRR 670.1, et seq.) and written directions; and it is further,ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.MATTER of Mia C. (Anonymous), ap — Administration for Childrens Services, petitioner-res, Misael C. (Anonymous), res-res — (Proceeding No. 1)MATTER of Ruth C. (Anonymous), ap — Administration for Childrens Services, petitioner-res, Misael C. (Anonymous), res-res — (Proceeding No. 2) — Motion by the appellants, in effect, to stay visitation between them and Misael C., pending hearing and determination of an appeal from an order of the Family Court, Kings County, dated December 3, 2017.Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, it isORDERED that the motion is granted and all visitation between the appellants and Misael C. is stayed pending hearing and determination of the appeal.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.MATTER of Mia C. (Anonymous), ap — Administration for Childrens Services, petitioner-res, Misael C. (Anonymous), res-res — (Proceeding No. 1)MATTER of Ruth C. (Anonymous), ap — Administration for Childrens Services, petitioner-res, Misael C. (Anonymous), res-res — (Proceeding No. 2) — Appeal by Mia C. and Ruth C. from an order of the Family Court, Kings County, dated December 3, 2017. Pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), it isORDERED that the appeal in the above-entitled proceedings shall be perfected within 60 days after the receipt by the appellants of the transcripts of the minutes of the proceedings in the Family Court, and the appellants shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this  ; and it is further,ORDERED that within 30 days after the date of this  , the appellants shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceedings to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation stating that the transcript has been received, and indicating the date that it was received; or(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof and the date by which the transcript is expected; or(4) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the actions described in (1), (2), (3), or (4) above has been taken within 30 days of the date of this  , the Clerk of this Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.Caron Elroumy, res, v. Asser Elroumy, ap — Motion by the appellant on an appeal from an order of the Supreme Court, Suffolk County, dated September 19, 2017, to stay enforcement of an order of commitment of the same court dated December 20, 2017, pending hearing and determination the appeal.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, and enforcement of the order of commitment dated December 20, 2017, is stayed pending hearing and determination of the appeal from the order dated September 19, 2017, on condition that the appeal from the order dated September 19, 2017, is perfected on or before February 22, 2018; and it is further,ORDERED that in the event the appeal is not perfected on or before February 22, 2018, the Court, on its own motion, may vacate the stay, without further notice, or the respondent may move to vacate the stay, on three days notice.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.Lenine Auguste, plf-res, v. Aaron Pegues, def-res, Yvette Allen-Lawrence, ap — Motion by the appellant to stay the trial in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Kings County, dated April 20, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.Mary Metz, res, v. Village of Valley Stream def, MTA Long Island Railroad, ap — Motion by the appellant to stay the trial in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Nassau County, entered June 28, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.MATTER of Andrew A. A. (Anonymous), petitioner- res, v. Daquan R. (Anonymous), respondent- res, Alesha T. N. (Anonymous), ap — Motion by Alesha T. N. for leave to appeal to this Court from an order of the Family Court, Dutchess County, dated December 21, 2017, and to stay enforcement of the order, pending hearing and determination of the appeal.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is for leave to appeal is denied; and it is further,ORDERED that on the Court’s own motion, the appeal purportedly taken as of right is dismissed, without costs or disbursements; and it is further,ORDERED that the motion is otherwise denied as academic.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.MATTER of Richard Blackman, deceased. Boca Raton Regional Hospital, Inc., petitioner- res, Tim Williams, etc., respondent- ap — (File No. 371737A/12) — Motion by the appellant to stay all proceedings in the above-entitled matter pending hearing and determination of an appeal from an order of the Surrogate’s Court, Nassau County, dated October 2, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted and all proceedings in the above-entitled matter are stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before February 23, 2018; and it is further,ORDERED that in the event the appeal is not perfected on or before February 23, 2018, the Court, on its own motion, may vacate the stay, without further notice, or the petitioner- respondent may move to vacate the stay, on three days notice.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Wells Fargo Bank National Association, etc., ap, v. John Ciafone, respondent def — Motion by the appellant to enlarge the time to perfect appeals from two orders of the Supreme Court, Queens County, entered November 28, 2016, and February 1, 2017, respectively.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the appellant’s time to perfect the appeals is enlarged until February 23, 2018, and the record or appendix on the appeals and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.U.S. Bank National Association, etc., res, v. Vincent Trulli, etc., appellant def — Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Westchester County, dated February 27, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the appellant’s time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Alexandra Wallick, ap, v. Evelyn Simmons res — Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Nassau County, dated October 26, 2016.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted, the appellant’s time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.MATTER of Konstantinos Apostolidis, etc., deceased. Paul Palmieri petitioners-appellants; Pene Apostolidis, res-res — (File No. 3311/10) — Motion by the petitioners-appellants to enlarge the time to perfect an appeal from an order of the Surrogate’s Court, Suffolk County, dated December 20, 2016.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted, the petitioners-appellants’ time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the petitioners-appellants’ brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Judy Barrett, ap, v. City of New York, res — Motion by the respondent to enlarge the time to serve and file a brief on an appeal from an order of the Supreme Court, Kings County, dated January 3, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted, the respondent’s time to serve and file a brief is enlarged until February 7, 2018, and the respondent’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.St. Lucys Cathedral Old Roman Catholic Church, res, v. Sacred Heart of Jesus English Rite Catholic Church, Inc. ap — Motion by the appellants to enlarge the time to perfect an appeal from an order of the Supreme Court, Kings County, dated April 4, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the appellants’ time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the appellants’ brief shall be served and filed on or before that date.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.Shameem Chowdhury, ap, v. Robert Thomas, res — 2017-06223Shameem Chowdhury, appellant,v Robert Thomas, respondent.(Index No. 503425/16)‌Motion by the appellant to enlarge the time to perfect appeals from an order and amended order of the Supreme Court, Kings County, dated November 28, 2016, and December 1, 2016, respectively.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, and the appellant’s time to perfect the appeals is enlarged until February 7, 2018.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.MATTER of Oleg Cassini, deceased. Marianne Nestor Cassini, petitioner-appellant; John J. Barnosky res-res — (File No. 343100) — Motion by the petitioner-appellant to enlarge the time to perfect an appeal from an order of the Surrogate’s Court, Nassau County, dated December 12, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the petitioner-appellant’s time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the petitioner-appellant’s brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.MATTER of Oleg Cassini, deceased. Marianne Nestor Cassini, petitioner; Peggy Nestor Cassini, respondent-appellant; John J. Barnosky res-res — (File No. 343100) — Motion by the respondent-appellant to enlarge the time to perfect an appeal from an order of the Surrogate’s Court, Nassau County, dated December 7, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted, the respondent-appellant’s time to perfect the appeal is enlarged until February 23, 2018, and the record or appendix on the appeal and the respondent-appellant’s brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.HSBC Bank USA, N.A., etc., res, v. Jocelyn Jean, appellant def — Motion by the appellant to enlarge the time to serve and file a reply brief on an appeal from an order of the Supreme Court, Suffolk County, dated April 12, 2016.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted, the appellant’s time to serve and file a reply brief is enlarged until February 7, 2018, and the reply brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.George Jimmy Musina ap, v. Board of Managers of the Schaeffer Landing North Condominium defendants third-party plf-res, Kent North Associates, LLC defendants-res, Kent Waterfront Builders, LLC third- party def-res — Motion by Goidel & Siegel, LLP, for leave to withdraw as counsel for the appellants on an appeal from an order and judgment (one paper) of the Supreme Court, Kings County, dated May 11, 2017. Cross motion by the third-party defendant-respondent Kent Waterfront Builders, LLC, to dismiss the appeal for failure to timely perfect.Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, it isORDERED that the motion is granted, and on or before February 7, 2018, Goidel & Siegel, LLP, shall serve its clients by one of the methods specified in CPLR 2103(c), with a copy of this decision and order on motion and shall file proof of such service with the Clerk of this Court; and it is further,ORDERED that no further proceedings shall be taken against the appellants, without leave of the Court, until the expiration of 30 days after service upon them of a copy of this decision and order on motion; and it is further,ORDERED that the appellants’ time to perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this Court (see 22 NYCRR 670.9[d][2]), and by serving and filing a brief on the appeal is enlarged until April 9, 2018; and it is further,ORDERED that the cross motion is denied.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Dillon, J.P.; Leventhal, Hinds-Radix and Lasalle, JJ.Diana Campuzano, res, v. Neal Sher def, The American Center for Civil Justice, etc., ap — 2016-12388Diana Campuzano, respondent,v Neal Sher defendants, TheAmerican Center for Civil Justice, etc.,appellant.(Index No. 605379/16)‌Motion by the appellant, inter alia, to enlarge the time to perfect appeals from two orders of the Supreme Court, Nassau County, entered August 1, 2016, and October 3, 2016, respectively.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the branch of the motion which is to enlarge the time to perfect the appeals is granted, and the appellant’s time to perfect the appeals is enlarged until February 23, 2018; and it is further,ORDERED that no further enlargement of time shall be granted; and it is further,ORDERED that the motion is otherwise denied.DILLON, J.P., LEVENTHAL, HINDS-RADIX and LASALLE, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.Matilda Santopietro ap, v. Rita Harrison, res — Motion by the respondent to direct the appellants to serve and file a supplemental record on an appeal from an order of the Supreme Court, Kings County, dated December 8, 2016, which contains a notice of cross motion dated December 5, 2016, and accompanying affidavit and affirmation, and exhibits annexed thereto, and to enlarge the time to serve and file a brief.Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that on or before February 23, 2018, the appellants shall serve and file a supplemental record containing the notice of cross motion dated December 5, 2016, and accompanying affidavit and affirmation, and exhibits annexed thereto; and it is further,ORDERED that the respondent’s time to serve and file a brief is enlarged until March 26, 2018, and the respondent’s brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.B. M., etc. res, v. Warwick Valley Central School District, et al., def, Wayne Rossi, ap — Motion by the appellant pursuant to CPLR 5520 to deem a notice of an appeal from an order of the Supreme Court, Orange County, dated February 21, 2017, which was timely served, to be timely filed. Application by the respondent pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a brief.Upon the papers filed in support of the motion and the application, and no papers having been filed in opposition or in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that the application is granted, the respondents’ time to serve and file a brief is enlarged until February 23, 2018, and the respondents’ brief shall be served and filed on or before that date.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.Saca Discount Corp., res, v. 33-02 30th Avenue, LLC, ap — 2017-10402Saca Discount Corp., respondent,v 33-02 30th Avenue, LLC, appellant.(Index No. 4405/16)‌Motion by the appellant to enlarge the time to perfect an appeal from an order of the Supreme Court, Queens County, entered May 15, 2017, and to consolidate that appeal with an appeal from an order of the same court entered October 2, 2017. Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to perfect the appeal from the order entered May 15, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the branch of the motion which is to enlarge the time to perfect the appeal from the order entered May 15, 2017, and the application for that relief are granted, and the appellant’s time to perfect the appeal from the order entered May 15, 2017, is enlarged until February 23, 2018; and it is further,ORDERED that the branch of the motion which is to consolidate the appeals is denied as unnecessary as the appeals may be consolidated as of right (see 22 NYCRR 670.7[c][1]).MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.Bank of New York Mellon, etc., res, v. Krista Selig, ap — Motion by the appellant pro se, in effect, to stay the sale of the subject premises, pending hearing and determination of an appeal from a judgment of the Supreme Court, Nassau County, dated September 25, 2015, to enlarge the time to perfect the appeal, and to waive compliance with the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record or the appellant’s appendix.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion which is to enlarge the time to perfect the appeal is granted, the appellant’s time to perfect the appeal is enlarged until March 12, 2018, and the record or appendix on the appeal and the appellant’s brief shall be served and filed on or before that date; and it is further,ORDERED that no further enlargement of time shall be granted; and it is further,ORDERED that the branch of the motion which is to waive compliance with the requirements of 22 NYCRR 670.10.2(f) regarding certification of the record or the appellant’s appendix is denied with leave to renew by a motion made simultaneously with the perfection of the appeal; and it is further,ORDERED that the motion is otherwise denied.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.U.S. Bank, N.A., etc., res, v. Misbah Imtiaz, ap — 2017-10733U.S. Bank, N.A., etc., respondent,v Misbah Imtiaz, appellant defendant.(Index No. 600593/15)‌Motion by the appellant to stay enforcement of two orders of the Supreme Court, Suffolk County, both dated August 3, 2017, and to stay all proceedings in the above-entitled actions, pending hearing and determination of appeals from the orders.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.Sukhwinder Singh, plf-res, v. Irene Gottesman, defendant third-party plaintiff-res-ap, Adena Samowitz, defendant second third-party plaintiff-appellant-res, Fairmont Capital, LLC, defendant-res, A-1 Harry Construction Corp., doing business as A-1 Construction Corp., third-party defendant/ second third-party def-res — Application by Adena Samowitz on an appeal and cross appeal from an order of the Supreme Court, Kings County, dated April 8, 2017, to withdraw her appeal.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal by Adena Samowitz is marked withdrawn.PEOPLE, etc., res, v. James Bannister, ap — Appeal from a judgment of the Supreme Court, Kings County, rendered August 9, 2016.Upon the stipulation of the appellant and the attorneys for the respective parties to the appeal dated January 16, 2018, it isORDERED that the appeal is marked withdrawn.Adam May weather, res, v. 149-Union Turnpike Realty, LLC ap — Application by the appellant 149-Union Turnpike Realty, LLC, to withdraw an appeal from an order of the Supreme Court, Queens County, dated June 27,2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted and the appeal by the appellant 149-Union Turnpike Realty, LLC, is marked withdrawn.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Wesley Brissett, ap — Motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the Supreme Court, Richmond County, rendered October 3, 2017, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that the appellant’s moving papers are deemed to constitute a timely notice of appeal; and it is further,ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant’s and the respondent’s briefs; the parties are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant’s counsel, without charge (see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant’s brief on the respondent; and it is further,ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant’s sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney’s office prior to the filing of such brief or motion; and it is further,ORDERED that pursuant to County Law §722 the following named attorney is assigned as counsel to prosecute the appeal:Paul Skip Laisure, Esq.Appellate Advocates111 John Street – 9th FloorNew York, New York 10038and it is further,ORDERED that the appellant’s time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court’s rules (see 22 NYCRR 670.1, et seq.) and written directions; and it is further,ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Wesley Brissett, ap — (S.C.I. No. 90138/17) — Motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the Supreme Court, Richmond County, rendered October 3, 2017, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in relation thereto, it isORDERED that the motion is granted; and it is further,ORDERED that the appellant’s moving papers are deemed to constitute a timely notice of appeal; and it is further,ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant’s and the respondent’s briefs; the parties are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant’s counsel, without charge (see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant’s brief on the respondent; and it is further,ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant’s sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney’s office prior to the filing of such brief or motion; and it is further,ORDERED that pursuant to County Law §722 the following named attorney is assigned as counsel to prosecute the appeal:Paul Skip Laisure, Esq.Appellate Advocates111 John Street – 9th FloorNew York, New York 10038and it is further,ORDERED that the appellant’s time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court’s rules (see 22 NYCRR 670.1, et seq.) and written directions; and it is further,ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.MATTER of Applications for Extensions of Time — Parties in the following causes have filed applications pursuant to 22 NYCRR 670.8(d)(2) to extend the time to perfect or to serve and file a brief.Upon the papers filed in support of the applications, it isORDERED that the applications are granted and the following parties in the following causes are granted the specified extensions of time:Title Case NumberApplicant Name(s) Extended DeadlineAverbeck v. Culinary Institute of America2017-04657Culinary Institute of AmericaFebruary 21, 2018BAC Home Loans Servicing, L.P. v. Alvarado2017-06991BAC Home Loans Servicing, L.P.February 16, 2018Bank of New York Mellonv Graffi2017-07882Bank of New YorkFebruary 5, 2018Bank of New York Mellonv George2017-09255Feinmore St. Realty, Inc.Bennett v. State Farm Fire and Casualty Company2017-02143Richard BennettMary Wendell BennettFebruary 9, 2018Burro v. Kang2017-03274Jeannette BurroFebruary 20, 2018Cassara v. Brook Property Management2017-05511Brook Property ManagementFebruary 20, 2018Emerita Urban Renewal, LLC v. New Jersey Court Services, LLC2017-09201New Jersey Court Services, LLCJay ItkowitzApril 17, 2018GLND 1945, LLC v. Ballard2017-06220Dorothy BallardFebruary 20, 2018GLND 1945, LLC v. Ballard2017-07667Dorothy BallardMarch 20, 2018HSBC v. Lev2017-05274Charles LevMarch 12, 2018Karim v. Fontanetta2017-08669Nadirah F. KarimMarch 23, 2018Laskaratos v. Bay Ridge Hoyt Lender, LLC2017-07908Bay Ridge Hoyt Lender, LLCKonstan Realty, LLCCastellan Holdings, LLCFebruary 6, 2018Lozado v. St Patrick’s R C Church 2017-05703Edwin LozadoFebruary 23, 2018M&T Bank v. Brown2017-10983Bernard BrownSheila BrownMarch 19, 2018Malayeva v. City of New York2017-04878Tri-Messine Construction Company, Inc.March 15, 2018Mattter of Nadler v. City of New York2016-01316 +1John NadlerMaria NadlerFebruary 6, 2018Meyer v. Montauk U.S.A., LLC2017-07000Montauk U.S.A., LLCDrew DoscherFebruary 13, 2018People v. Anselmo, Alex 2015-11177People of State of New York February 27, 2018People v. Brooks, Derrick2016-00711 +1People of State of New YorkFebruary 20, 2018People v. Cash, Clarence2014-10873People of State of New YorkFebruary 21, 2018People v. Chrisostome, Stephens2016-00293People of State of New YorkMarch 1, 2018Tortorelli v. Watkins2017-08796Neil TortorelliMarch 26, 2018U.S. Bank National Association v. Marrero2017-08609U.S. Bank National AssociationMarch 5, 2018U.S. Bank National Association v. Powell2017-04921 +1U.S. Bank National AssociationFebruary 6, 2018U.S. Bank NA v. Stevens2017-08426Theresa A. StevensMarch 21, 2018US Bank National Association v. Haddad2017-08166Fabrice HaddadFebruary 5, 2018US Bank National Association v. Stewart2017-06894US Bank National AssociationFebruary 1, 2018Villa v. TF Victor’s Trucking Co., Inc.2017-06812TF Victor’s Trucking Co., Inc.Henryk BarbanCore Trucks, Inc.February 5, 2018Wells Fargo Bank, N.A. v. Bakth2017-05910Achwad BakthFebruary 20, 2018Wells Fargo Bank, N.A. v. Cohan2017-05688David Cohan February 20, 2018Wonderly v. City of Poughkeepsie2016-11232City of PoughkeepsieCity of Poughkeepsie Police DepartmentFebruary 28, 2018Maria Cuneo res-ap, v. Shorecliff Cottages Corporation appellants-respondents def — Application by the respondents-appellants pursuant to 22 NYCRR 670.8(d)(2) for a 30-day enlargement of time to serve and file a brief on appeals and a cross appeal from an order of the Supreme Court, Suffolk County, dated January 23, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted to the extent that the applicants’ time to serve and file a brief is enlarged until February 5, 2018, the applicants’ brief, including the points of argument on the cross appeal (see 22 NYCRR 670.8[c][3]), shall be served and filed on or before that date, and the application is otherwise denied.MATTER of David Fischer, appellant- res, v. Julius Chabbott res-ap, Gassman Baiamonte Gruner, P.C., res — Application pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file the respondent’s brief and the reply briefs on an appeal and a cross appeal from an order of the Supreme Court, Kings County, dated July 21, 2017.Upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it isORDERED that the application is granted, the time for Gassman Baiamonte Gruner, P.C., to serve and file its respondent’s brief is enlarged until January 31, 2018, and the respondent’s brief shall be served and filed on or before that date; and it is further,ORDERED that David Fischer shall serve and file his reply brief on or before February 15, 2018; and it is further,ORDERED that Julius Chabbott and Mayrav Chabbott shall serve and file their reply brief on or before February 28, 2018.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.Jose Lamas, appellant-res,, v. East Coast Drilling, Inc. def, Pavarini McGovern, LLC res, All Safe, LLC, res-res — Appeal by Jose Lamas and cross appeal by All Safe, LLC, from an order of the Supreme Court, Westchester County, dated March 28, 2017.On the Court’s own motion, and upon the decision and order on motion of this Court dated December 19, 2017, and the order on application of this Court dated January 8, 2018, it isORDERED that the appellant-respondent shall serve and file the joint record or appendix on the appeal and cross appeal (see 22 NYCRR 670.8[c][1]), and the appellant-respondent’s brief on or before February 7, 2018; and it is further,ORDERED that the respondent-appellant shall serve and file its answering brief, including the points of argument on its cross appeal (see 22 NYCRR 670.8[c][3]), on or before March 14, 2018.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Balkin, JJ.MATTER of Scott Ogman, ap, v. Joy L. Levine, res — On the Court’s own motion, it isORDERED that the   of this Court dated December 22, 2017, in the above-entitled matter, on an appeal from an order of the Family Court, Nassau County, dated May 3, 2017, is amended by deleting from the first decretal paragraph thereof the date “January 22, 2018,” and substituting therefor the date “January 24, 2018.”SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and BALKIN, JJ., concur.By Chambers, J.P.; Miller, Barros and Connolly, JJ.Andrew Deserto, Jr., res, v. Goshen Central School District ap — On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated January 22, 2018, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:Motion by the appellants for leave to appeal to the Court of Appeals from a decision and order of this Court dated August 9, 2017, which determined an appeal from an order of the Supreme Court, Orange County, dated April 27, 2015.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.CHAMBERS, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.By Leventhal, J.P.; Miller, Hinds-Radix and Duffy, JJ.MATTER of Deborah D. (Anonymous). Administration for Children’s Services, petitioner- res, Elliot D. (Anonymous), res-res — MATTER of Isaac D. (Anonymous). Administration for Children’s Services, petitioner- res, Elliot D. (Anonymous), res-res — On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated January 18, 2018, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:Motion by the appellant        pro se for leave to prosecute an appeal from an order of the Family Court, Kings County, dated October 24, 2017, as a poor person and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in in relation thereto, it isORDERED that the branch of the motion which is for leave to prosecute the appeal on the original papers is denied as unnecessary (see Family Ct Act §1116), and the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the briefs of the respondent-appellant, the petitioner-respondent, and the attorney for the children, if any. The parties are directed to file nine copies of their respective briefs and to serve one copy on each other (22 NYCRR 670.9[d][1][ii]; Family Ct Act §1116); and it is further,ORDERED that the branches of the motion which are to waive the filing fee, for free transcripts, and for the assignment of counsel are denied; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeal in the above-entitled proceedings shall be perfected within 60 days after the receipt by the respondent-appellant of the transcripts of the minutes of the proceedings in the Family Court, and the respondent-appellant shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this decision and order on motion; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), within 30 days of the date of this decision and order on motion, the respondent-appellant shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceeding to be transcribed for the appeal; or(2) if there are such minutes, an affidavit or affirmation stating that the transcript has been received, and indicating the date that it was received; or(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof, and the date by which the transcript is expected; or(4) an affidavit or an affirmation withdrawing the appeal; and it is further,ORDERED that if none of the actions described in (1), (2), (3), or (4), above has been taken within 30 days of the date of this decision and order on motion, the Clerk of the Court shall issue an order to all parties to the appeal to show cause why the appeal should or should not be dismissed.LEVENTHAL, J.P., MILLER, HINDS-RADIX and DUFFY, JJ., concur.