Appellate Advocates (Joshua M. Levine, Esq.), for appellant.Kings County District Attorney (Leonard Joblove, Ann Bordley and Roger T. Yu of counsel), for respondent.2014-582 K CR. THE PEOPLE v. JENKINS, JAMES — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (George A. Grasso, J.), rendered February 19, 2014. The judgment convicted defendant, after a nonjury trial, of unlawful possession of marihuana and failing to stop at a steady red traffic control signal. The appeal from the judgment of conviction brings up for review so much of an order of that court (Matthew A. Sciarrino, Jr., J.), dated October 21, 2013, as denied the branches of defendant’s motion seeking dismissal of the accusatory instrument on the grounds that his statutory and constitutional rights to a speedy trial had been violated.ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of unlawful possession of marihuana and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.On January 30, 2013, defendant was arraigned on an accusatory instrument which charged him, insofar as is relevant to this appeal, with unlawful possession of marihuana (Penal Law §221.05) and failing to stop at a steady red traffic control signal (Vehicle and Traffic Law §1111 [d] [1]). Defendant subsequently moved to dismiss the accusatory instrument on the grounds, among others, that his statutory and constitutional rights to a speedy trial had been violated. By order dated October 21, 2013, the Criminal Court (Matthew A. Sciarrino, Jr., J.) denied the branch of defendant’s motion seeking dismissal on statutory speedy trial grounds, finding, among other things, that for the time period of January 30, 2013 to October 21, 2013, only 18 days of delay, all prior to September 17, 2013, were chargeable to the People. The court also denied the branch of defendant’s motion seeking dismissal on constitutional speedy trial grounds. Thereafter, defendant’s attorney attempted to make an oral motion to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that, following the October 21, 2013 order, more than 30 days of delay had accrued against the People. The Criminal Court instructed defense counsel to make her motion in writing, which counsel never did. Following a nonjury trial held in February 2014, defendant was convicted of the aforementioned charges.On appeal, defendant contends that the branches of his motion seeking to dismiss the accusatory instrument on the grounds that his statutory and constitutional rights to a speedy trial had been violated should have been granted, and that he received the ineffective assistance of counsel because his trial attorney failed to make a second written motion for dismissal based on additional statutory speedy trial time chargeable to the People which had accrued following the Criminal Court’s October 2013 order, which motion would have been successful.Defendant was charged with unlawful possession of marihuana, a violation and, therefore, the People were required to be ready for trial with respect to that charge within 30 days of the commencement of the action (see CPL 30.30 [1] [d]). It is noted that CPL 30.30 does not apply to traffic infractions and, thus, there is no statutory speedy trial requirement in regard to the charge of failing to stop at a steady red traffic control signal (see People v. Graham, 39 Misc 3d 35, 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v. Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; People v. Ferreira, 22 Misc 3d 32, 33 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).While the Criminal Court properly found that 18 days of delay were chargeable to the People up until September 17, 2013, we find that it should have also found that the 21 days from September 17, 2013 to October 8, 2013 were chargeable to the People. The People’s proffered excuse for not being ready from September 17th to October 8th was because the arresting officer had been out sick. However, the People “failed to show that the arresting officer’s trial testimony would be evidence material to the People’s case’ (CPL 30.30 [4] [g])” (People v. Morena, 53 Misc 3d 131[A], 2016 NY Slip Op 51372[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), and, in any event, did not address defendant’s argument that the unavailable officer’s partner, who had also been present at the incident, could have provided the necessary testimony for the People. Consequently, more than 30 days of delay is chargeable to the People, and, thus, the branch of defendant’s motion seeking to dismiss so much of the accusatory instrument as charged him with unlawful possession of marihuana on the ground that his statutory right to a speedy had been violated should have been granted.Even if the Criminal Court had properly declined to charge the People with the aforementioned 21 days, we note that defendant’s conviction of unlawful possession of marihuana should, nevertheless, be vacated inasmuch as defendant received the ineffective assistance of counsel due to his trial attorney’s failure to make a second, written statutory speedy trial motion to raise the “clear-cut and completely dispositive” issue that 17 additional days of delay were chargeable to the People during the time period of October 23, 2013 to January 28, 2014 (People v. Turner, 5 NY3d 476, 481 [2005]). The record is not complex, and this additional chargeable time is set forth clearly therein (cf. People v. Henderson, 28 NY3d 63, 65 [2016]; People v. Brunner, 16 NY3d 820, 821 [2011]). In addition, the People concede, on appeal, that, ultimately, prior to trial, more than 30 days of delay were chargeable to them.To be entitled to relief under the New York State Constitution on the ground of ineffective assistance of counsel, a defendant must establish that his counsel did not provide him with meaningful representation (see People v. Benevento, 91 NY2d 708, 713 [1998]; People v. Baldi, 54 NY2d 137, 147 [1981]; see also People v. Caban, 5 NY3d 143, 152 [2005]). Under the federal standard of review a “defendant must show that counsel’s performance was deficient…[and] that the deficient performance prejudiced the defense” (see Strickland v. Washington, 466 US 668, 687 [1984]). In the case at bar, it is clear that the representation defendant received from his trial attorney fell short of an objective standard of reasonableness (see People v. Turner, 5 NY3d at 485), and the trial attorney’s deficient performance prejudiced the defense (see Strickland v. Washington, 466 US at 687-688). Consequently, “[h]aving established that defense counsel failed to make a meritorious statutory speedy trial claim…defendant…was denied meaningful representation…[and s]ince further prosecution on [so much of the accusatory instrument charging defendant with unlawful possession of marihuana] is not possible due to the impermissible [pre-trial] delay, [that count of the accusatory instrument] must be dismissed” (People v. Devino, 110 AD3d 1146, 1149 [2013]).We note that the constitutional right to a speedy trial pursuant to CPL 30.20 applies to the charge of failing to stop at a steady red traffic control signal (see People v. Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2). In order to determine whether a defendant was denied his constitutional right to a speedy trial pursuant to CPL 30.20, the following factors must be considered: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (People v. Taranovich, 37 NY2d 442, 445 [1975]). In the case at bar, since there was less than one year of delay (see People v. Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]) and defendant did not establish that his defense was impaired by reason of the delay (see People v. Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Kreinen, 2002 NY Slip Op 40359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2002]), defendant failed to establish a sufficient basis to warrant the granting of the branch of his motion brought pursuant to CPL 30.20 (see People v. Taranovich, 37 NY2d at 445; People v. Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U]). Accordingly, the judgment of conviction is modified by vacating so much of the judgment as convicted defendant of unlawful possession of marihuana and dismissing that count of the accusatory instrument.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018By: Weston, J.P., Aliotta, Elliot, JJ.New York City Legal Aid Society (Shane Tela, Esq.), for appellant.Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.2015-1879 RI CR. THE PEOPLE v. D’ANGELO, PHILIP — Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raymond Rodriguez, J.), rendered July 22, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.ORDERED that the judgment of conviction is affirmed.Defendant pleaded guilty to one count of criminal possession of a controlled substance in the seventh degree (Penal Law §220.03) in satisfaction of an accusatory instrument which charged him with four counts of that crime. On appeal, defendant contends that the accusatory instrument was facially insufficient since it failed to establish his actual or constructive possession of the controlled substances.Since defendant expressly waived prosecution by information, the accusatory instrument’s legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 524 [2014]), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (CPL 100.15 [3]) and provides reasonable cause to believe that defendant committed the crime charged (CPL 100.40 [4] [b]; see People v. Dumas, 68 NY2d 729, 731 [1986]). Such a challenge to the facial sufficiency of the instrument constitutes a jurisdictional defect which is not forfeited by a defendant’s guilty plea (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Lucas, 11 NY3d 218, 220 [2008]; People v. Konieczny, 2 NY3d 569, 573 [2004]). Moreover, so long as the factual allegations of an accusatory instrument provide a defendant notice sufficient to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see Dreyden, 15 NY3d at 103; People v. Kalin, 12 NY3d 225, 231-232 [2009]; Konieczny, 2 NY3d at 575; People v. Casey, 95 NY2d 354, 360 [2000]).“A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance” (Penal Law §220.03). Pursuant to Penal Law §220.25 (1), “[t]he presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found.” Here, the accusatory instrument, together with the supporting deposition, alleged that controlled substances were found in a vehicle in which defendant was sitting. Consequently, defendant’s challenge to the information on the ground that it failed to contain factual allegations demonstrating reasonable cause to believe that defendant possessed the controlled substances is without merit (see People v. Schroeder, 15 Misc 3d 139[A], 2007 NY Slip Op 50983[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see also People v. Leyva, 38 NY2d 160, 168 [1975]).Accordingly, the judgment of conviction is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 19, 2018By: Pesce, P.J., Weston, Elliot, JJ.New York City Legal Aid Society (Shahar Azoulay, Esq.), for appellant.Kings County District Attorney (Leonard Joblove, Seth M. Lieberman and James T. Castle of counsel), for respondent.2015-1916 K CR. THE PEOPLE v. ROMAN, ANDY — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Frederick C. Arriaga, J.), rendered July 15, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the second degree.ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.In an accusatory instrument, defendant was charged with, among other things, criminal contempt in the second degree (Penal Law §215.50 [3]). The accusatory instrument alleged, among other things, that, on or about July 1, 2015, defendant violated an order of protection that had been issued in Family Court on April 22, 2015, which was in effect until October 21, 2015. Insofar as relevant to this appeal, the accusatory instrument further alleged that “defendant stated in sum and substance that defendant is aware that defendant has an order of protection against defendant and that defendant viewed the first page of said order of protection.” At a plea proceeding, defendant waived prosecution by information and pleaded guilty to the count of criminal contempt in the second degree in satisfaction of all the charges.On appeal, defendant contends that so much of the accusatory instrument as charged him with criminal contempt in the second degree is jurisdictionally defective.At the outset, we note that, as defendant’s objection to the facial sufficiency of the accusatory instrument raises a jurisdictional issue, it was not forfeited upon his plea of guilty (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Lucas, 11 NY3d 218, 220 [2008]; People v. Konieczny, 2 NY3d 569, 573 [2004]). Since defendant, through his counsel, expressly waived his right to be prosecuted by information, the accusatory instrument’s legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 524 [2014]), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the offense charged (see CPL 100.40 [4] [b]; People v. Dumas, 68 NY2d 729, 731 [1986]). Moreover, so long as the factual allegations of an accusatory instrument provide an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see Dreyden, 15 NY3d at 103; People v. Kalin, 12 NY3d 225, 231-232 [2009]; Konieczny, 2 NY3d at 576; People v. Casey, 95 NY2d 354, 360 [2000]).Penal Law §215.50 (3):provides that: “A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct:3. Intentional disobedience or resistance to the lawful process or other mandate of a court…”An order of protection is a mandate of the court (see People v. Halper, 209 AD2d 637 [1994]). The essential elements of the crime of criminal contempt in the second degree, as charged herein, are that a lawful order of protection was in effect, that defendant had knowledge of the order of protection, and that defendant intentionally disobeyed it (see Matter of McCormick v. Axelrod, 59 NY2d 574, 583 [1983]).The factual portions of the accusatory instrument and supporting deposition fail to contain any allegation that defendant had been served with the April 22, 2015 order of protection, that he had been present in court when it had been issued or that he had signed that order of protection (see People v. Inserra, 4 NY3d 30, 33 [2004]). We note that a copy of the order of protection was not annexed to the accusatory instrument (see Konieczny, 2 NY3d 569). While the accusatory instrument sets forth that “defendant stated in sum and substance that defendant is aware that defendant [sic] has an order of protection against defendant,” it fails to allege that defendant had knowledge of the order of protection that had been issued by the Family Court in favor of the victim on April 22, 2015 and against him, which is the order he is being charged with violating. Even if it be assumed that the allegation in the accusatory instrument — to the effect that defendant stated that he was aware of “an order of protection” and had viewed the first page of said order of protection” (emphasis added) — was referring to the April 22, 2015 Family Court order previously mentioned in the accusatory instrument, the accusatory instrument failed to allege that defendant had been aware of it and viewed it prior to the date of the offense involved herein. There was, thus, no allegation from which it can be inferred that defendant had knowledge of the April 22, 2015 order of protection prior to July 1, 2015. This constituted an omission of a factual allegation establishing an element of the offense charged. Consequently, so much of the accusatory instrument as charged defendant with criminal contempt in the second degree is dismissed as jurisdictionally defective (see Penal Law §215.50 [3]; People v. Inserra, 4 NY3d at 33; People v. Carthew, 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2008]).Instead of reinstating the remainder of the accusatory instrument to its prepleading status (see CPL 470.55 [2]), we dismiss it, as a matter of discretion in the interest of justice, since defendant has completed his sentence and no penological purpose would be served by restoring the criminal action (see People v. Vicuna, 53 Misc 3d 153[A], 2016 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2016]).Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Georgina Yaw, appellant pro se.Michaelle Hyppolite and Marla Henry-Nord, respondents pro se (no brief filed).2015-2447 K C. YAW v. HYPPOLITE — Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered October 8, 2015. The order denied plaintiff’s motion to vacate an arbitrator’s award dismissing plaintiff’s action and, in effect, a judgment of that court entered August 20, 2015 pursuant to the arbitrator’s award.ORDERED that the order is affirmed, without costs.Plaintiff commenced this small claims action to recover $5,000 for “damages to personal property and loss of property and breach of agreement…on 02-28-2015.” The parties agreed to submit the matter to arbitration and signed a “consent to arbitration,” advising them that the arbitration award was final and that no appeal would be permitted. After the arbitration hearing, the arbitrator dismissed plaintiff’s action and, on August 20, 2015, a judgment was entered pursuant to the arbitrator’s award (see Uniform Rules for NY City Civ Ct [22 NYCRR] §208.41 [n] [5]). Plaintiff subsequently moved to vacate the arbitrator’s award and, in effect, the judgment entered pursuant thereto. Plaintiff appeals from the order denying her motion.A party seeking to vacate a small claims arbitration award, and a judgment entered pursuant thereto, bears the burden of establishing, by clear and convincing evidence, one of the statutory grounds enumerated in CPLR 7511 (b) (see e.g. Matter of Arab v. ATC Jewelers, Inc., 45 AD3d 588 [2007]; May v. Scotto-D’Abusco, 31 Misc 3d 148[A], 2011 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Benham v. George, 28 Misc 3d 128[A], 2010 NY Slip Op 51190[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). As plaintiff has failed to establish any statutory ground to warrant the vacatur of the arbitration award and, in effect, the judgment entered pursuant thereto, we find no basis to disturb the Civil Court’s order.We note that this court may not consider any evidence which is dehors the record (see Chimarios v. Duhl, 152 AD2d 508 [1989]).Accordingly, the order is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 19, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Brian F. Ward, Esq., PLLC (Brian F. Ward, Esq.), for appellant-respondent.Leon I. Behar, P.C. (Leon I. Behar, Esq.), for respondent-appellant.2015-2505 K C. 125 COURT ST., LLC v. SHER — Appeal and cross appeal from a final judgment of the Civil Court of the City of New York, Kings County (Jean T. Schneider, J.), entered August 28, 2015. The final judgment, insofar as appealed from by tenant, after a nonjury trial, awarded landlord possession and the sum of $95,075.08 in a nonpayment summary proceeding. The final judgment, insofar as cross-appealed from by landlord, awarded tenant a 20 percent abatement for the period from August 2011 through November 2012 and a 40 percent abatement for the period from December 2012 through October 2013.ORDERED that the final judgment is reversed, with $30 costs to tenant, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition; and it is further,ORDERED that the cross appeal is dismissed as moot.In this nonpayment proceeding, landlord served a rent demand alleging that tenant owed rent at the rate of $3,700 for January through April 2012, and at the rate of $4,475.65 for May 2012 through October 2013. The petition incorporates the rent demand and alleges, among other things, that the apartment is subject to rent stabilization because landlord is the recipient of an RPTL 421-a tax abatement (see 28 RCNY 6-01 et seq.). Tenant interposed an answer denying, among other things, the petition’s allegation that a proper rent demand had been served, and asserting, among other things, that landlord had fraudulently registered the rents, that landlord had overcharged her, and that landlord had breached the warranty of habitability.At a nonjury trial, the evidence established that tenant’s initial 2005 lease, which was the first lease for the unit, listed a “legal regulated rent” of $9,175 and a preferential rent of $3,540. Each subsequent lease contained a “legal regulated rent” calculated based on that initial $9,175 figure. The renewal lease commencing May 2012 stated a legal regulated rent of $11,388.83 and a preferential rent of $5,000. In September 2013, landlord amended its Department of Housing and Community Renewal (DHCR) filings for tenant’s apartment to restate the initial legal regulated rent as $3,540, with increases in the legal regulated rent in subsequent renewal leases calculated from that base. An employee of landlord’s management company, Two Trees Management Company, testified that, based on this recalculation, landlord had unilaterally lowered the rent during the May 2012 lease term to the newly registered legal maximum, $4,475.65, and had given tenant certain credits, but no lease containing that amount had been executed. There was substantial testimony from both parties regarding tenant’s warranty of habitability claim and landlord’s claim that tenant did not provide sufficient access for repairs. Following the trial, the Civil Court found that landlord was entitled to rent at the rate of $3,700 per month for January 2012 through April 2012, and at the rate of $4,475.65 per month from May 2012 through September 2014, for a total unpaid balance of $127,693.85. The court further found that tenant was entitled to a 20 percent abatement for August 2011 through November 2012 and a 40 percent abatement for December 2012 through October 2013. After crediting the abatement, the court awarded landlord a final judgment of possession and the sum of $95,075.08.Pursuant to Rent Stabilization Code (RSC) (9 NYCRR) §2521.1 (g), “The initial legal regulated rent for a housing accommodation constructed pursuant to section 421-a of the Real Property Tax Law shall be the initial adjusted monthly rent charged and paid[.]” Since tenant was the first occupant of the premises and the rent she paid was $3,540, that sum became the initial legal regulated rent and all subsequent legal rents should have been calculated from that base. Landlord failed to register the correct maximum legal regulated rent for the initial 2005 lease term until September 2013 and offered no explanation for its filing of improper registrations, and none of the leases it proffered to tenant during those years accurately represented the maximum legal regulated rents.In these circumstances, the rent was “frozen” at the initial legal regulated rent of $3,540 per month and landlord was entitled to no increases until September 2013 when the registrations were corrected (see Jazilek v. Abart Holdings, LLC, 72 AD3d 529, 531 [2010]; see also Thornton v. Baron, 5 NY3d 175, 181 [2005]; Bradbury v. 342 W. 30th St. Corp., 84 AD3d 681, 684-685 [2011]). Landlord’s amended registrations have no retroactive effect (see Matter of Second 82nd SM LLC v. New York State Div. of Hous. & Community Renewal, 2012 NY Slip Op 30865[U], *8 [Sup Ct, NY County 2012]; Ernest & Maryanna Jeremias Family Partnership, LP v. Matas, 39 Misc 3d 1206[A], 2013 NY Slip Op 50505[U] [Civ Ct, Kings County 2013]). Consequently, the maximum legal regulated rent for the unit remained $3,540 until at least September 2013.A proper rent demand is a statutory prerequisite for a nonpayment proceeding (RPAPL 711 [2]) and an element of a landlord’s prima facie case (see Community Hous. Innovations, Inc. v. Franklin, 14 Misc 3d 141[A], 2007 NY Slip Op 50050[U] [App Term, 9th & 10th Jud Dists 2007]). A rent notice must “set forth the approximate good faith amount of rent owed” (Dendy v. McAlpine, 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309 [2007]) and cannot be amended (see Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 787 [1980]). Here, we find that the amounts demanded in the rent notice did not constitute approximate good faith rent amounts, and, thus, the petition should be dismissed.While tenant has requested an award of attorney’s fees, such an award should await the ultimate outcome of the nonpayment dispute (see Elkins v. Cinera Realty, 61 AD2d 828, 828 [1978]).Accordingly, the final judgment is reversed, the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition, and the cross appeal is dismissed as moot.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 19, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Judith C. May, appellant pro se.George T. Reich and Eye-Spy Associates, respondents pro se (no brief filed).2016-782 Q C. MAY v. REICH — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 2, 2014. The judgment, insofar as appealed from, after a nonjury trial, dismissed so much of the action as was asserted against defendants George T. Reich and Eye-Spy Associates.ORDERED that the judgment, insofar as appealed from, is affirmed, without costs.Plaintiff commenced this small claims action against defendants George T. Reich and Eye-Spy Associates1 to recover $200 for “services rendered and failure to return deposit, on 03-15-2013.” Plaintiff appeals from so much of a judgment of the Civil Court as, after a nonjury trial, dismissed so much of the action as was asserted against those defendants.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).In this case, the Civil Court had the opportunity to evaluate the evidence and found that the testimony of the defense witnesses was more credible than that of plaintiff. As the court’s determination is supported by the record and provides the parties with substantial justice (see CCA 1804, 1807), the judgment, insofar as appealed from, is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.January 19, 20181. Plaintiff had also sought to recover $1,000 from Frank Gambino, the president of Eye-Spy Associates, but agreed, during the course of the trial, to discontinue so much of the action as was asserted against him.By: Elliot, J.P., Pesce, Aliotta, JJ.Mark K. Spillers, appellant pro se.Corporation Counsel of the City of New York (Jeremy W. Shweder, Esq.), for respondents.2016-948 K C. SPILLERS v. CITY OF NEW YORK — Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered December 17, 2015. The order granted defendants’ motion to dismiss the complaint.ORDERED that the order is affirmed, without costs.Plaintiff, a former New York City Health and Hospitals employee who worked at Kings County Hospital Center as a senior rehabilitation counselor, commenced this action to recover compensation for approximately 40 days, which he maintains should have been classified as paid leave rather than unpaid absences. Defendants moved to dismiss the complaint for, among other things, lack of subject matter jurisdiction (CPLR 3211 [a] [2]). Plaintiff opposed defendants’ motion. By order entered December 17, 2015, the Civil Court granted defendants’ motion, finding that “[t]his Court lacks subject matter jurisdiction.”It is well settled that proceedings that compel action by a government agency or challenge the reasonableness or legality of an administrative decision must be brought in Supreme Court as an article 78 proceeding (see Walsh v. New York State Thruway Auth., 24 AD3d 755, 756 [2005]; Housing & Dev. Admin. of City of N.Y. v. Community Hous. Improvement Program, 90 Misc 2d 813 [1977], affd 59 AD2d 773 [1977]). As plaintiff seeks to challenge the propriety of certain administrative decisions which he maintains improperly classified his absences from his job as unpaid leave rather than paid leave, the proper form for this action was a CPLR article 78 proceeding and the proper forum, the Supreme Court (see CPLR 7801, 7804 [b]; Abiele Contr. v. New York City School Constr. Auth., 91 NY2d 1, 7-8 [1997]; Advanced Refractory Tech. v. Power Auth. of State of N.Y., 81 NY2d 670, 678-679 [1993]; Card v. City of New York, 31 Misc 3d 143[A], 2011 NY Slip Op 50872[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Boss Prop. Group, LP v. Con Edison, 31 Misc 3d 128[A], 2011 NY Slip Op 50455[U] [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2011]; Fuca v. City of New York, 15 Misc 3d 86, 87 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Consequently, the Civil Court properly granted defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction (see Walsh v. New York State Thruway Auth., 24 AD3d at 756; Card v. City of New York, 31 Misc 3d 143[A], 2011 NY Slip Op 50872[U]).Accordingly, the order is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 19, 2018By: Pesce, P.J., Weston, Elliot, JJ.Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.2016-950 K C. OLEG’S ACUPUNCTURE, P.C. v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 27, 2016, deemed from a judgment of that court entered April 7, 2016 (see CLPR 5501 [c]). The judgment, entered pursuant to the January 27, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,103.32.ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for [] claimed medical services under any circumstances…for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.Julie A. Tupler, appellant pro se.Etty Rosenbaum, respondent pro se (no brief filed).2016-1762 K C. TUPLER v. ROSENBAUM — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 13, 2016. The judgment, after a nonjury trial, dismissed the action.ORDERED that the judgment is affirmed, without costs.In this small claims action, plaintiff seeks to recover the sum of $3,500, alleging that she had entered into a two-year, nonseverable licensing agreement with defendant and that defendant had breached that agreement. After a nonjury trial, the Civil Court dismissed the action.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807).Accordingly, the judgment is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.January 19, 2018By: Pesce, P.J., Weston, Elliot, JJ.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.McDonnell, Adels & Klestzick, PLLC (Ralph P. Franco, Jr., Esq.), for respondent.2016-1939 Q C. ACTION POTENTIAL CHIROPRACTIC, PLLC v. UNITED SERVS. AUTO. ASSN. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 26, 2016. The order granted defendant’s motion pursuant to CPLR 3126 to dismiss the complaint for plaintiff’s failure to comply with court-ordered discovery.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery. Thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to provide discovery. Defendant argued in support of its motion that it sought discovery from plaintiff in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits. By order entered September 21, 2015, the Civil Court granted defendant’s motion and directed plaintiff to provide “verified responses to defendant’s discovery demands, including answering interrogatories, producing management agreements, lease agreements, corporate records, federal and state tax returns, and bank records within 60 days of this order.”When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the September 21, 2015 order. On March 22, 2016, plaintiff served its opposition to the motion along with its responses to defendant’s discovery demands, but plaintiff did not produce the documents which the court had previously ordered it to produce. Plaintiff appeals from an order of the Civil Court, entered May 26, 2016, which granted defendant’s motion.The determination of whether to strike a pleading for failure to comply with court-ordered discovery lies within the sound discretion of the motion court (see CPLR 3126; Orgel v. Stewart Tit. Ins. Co., 91 AD3d 922 [2012]; Giano v. Ioannou, 78 AD3d 768 [2010]; Fishbane v. Chelsea Hall, LLC, 65 AD3d 1079 [2009]; Mir v. Saad, 54 AD3d 914 [2008]; see also Kihl v. Pfeffer, 94 NY2d 118 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply (see Tos v. Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v. Joyce, 10 AD3d 601 [2004]; Renelique v. Lancer Ins. Co., 53 Misc 3d 145[A], 2016 NY Slip Op 51596[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).Accordingly, the order entered May 26, 2016 is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018Walter C. Parrish, III, appellant pro se.Corporation Counsel of the City of New York (Tahirih M. Sadrieh, Esq.), for respondent.2016-1968 K C. PARRISH v. CORPORATION COUNSEL, CITY OF NEW YORK — Appeal from an order of the Civil Court of the City of New York, Kings County (Adam Silvera, J.), entered May 5, 2016. The order granted defendant’s motion to dismiss the complaint.ORDERED that the order is affirmed, without costs.In August of 2015, plaintiff commenced this action seeking $7,500 for loss of time from work and $12,500 for loss of the use of his property, plus interest from March 5, 2014, based on defendant’s allegedly wrongful seizure of his vehicle. The dates of occurrence as listed on the complaint are March 5, 2014 to July 24, 2014. Defendant moved to dismiss the complaint on the ground that no timely notice of claim had been filed and, in the alternative, that the action is barred by the statute of limitations. In opposition, plaintiff contended, among other things, that he had filed a notice of claim on December 30, 2013. By order entered May 5, 2016, defendant’s motion was granted.General Municipal Law §50-e requires that a plaintiff asserting a tort claim against a municipality serve a notice of claim upon the municipality within 90 days after the claim arises, as a condition precedent to bringing an action against the municipality (see Campbell v. City of New York, 4 NY3d 200 [2005]; O’Brien v. City of Syracuse, 54 NY2d 353 [1981]), a period which may, in certain circumstances, be extended, but not beyond the applicable period of limitations (see General Municipal Law §50-e [5]; see also Pierson v. City of New York, 56 NY2d 950 [1982]; Iglesias v. Brentwood Union Free Sch. Dist., 118 AD3d 785 [2014]). General Municipal Law §50-i establishes a statute of limitations of one year and 90 days for tort actions against municipalities (see Campbell v. City of New York, 4 NY3d 200; Matter of Billman v. Port Jervis School Dist., 84 AD3d 1367 [2011]). It is undisputed that no notice of claim was filed within 90 days of the dates of the occurrence as listed on the complaint, and that plaintiff never obtained leave of court to file a late notice of claim or filed a notice of claim within one year and 90 days from the dates set forth in the complaint. As a notice of claim is a condition precedent to filing a tort action against a municipality, the action was properly dismissed.We note that, to the extent that plaintiff is arguing that the instant action is based on incidents in 2013 and February 2014, defendant’s motion was properly granted on defendant’s alternative ground that the action is barred by the statute of limitations (see General Municipal Law §50-i).Accordingly, the order is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018Fine, Olin & Anderman, LLP (Lawrence D. Lissauer, Esq.), for appellant.Cheven, Keely & Hatzis, Esqs. (William B. Stock, Esq.), for respondents.2016-2194 K C. ROJAS v. GLORY TRADING CORP. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 28, 2016. The order granted defendants’ motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for a new trial.ORDERED that the order is affirmed, without costs.At a jury trial of this action to recover damages for injuries plaintiff sustained while he had been riding a bicycle — when defendant Hua Tang opened the door of a motor vehicle owned by defendant Glory Trading Corp. and driven by defendant Kok Weng Wong — the jury found that defendant Kok Weng Wong was negligent and that his negligence was a substantial factor in causing the accident. The jury also found that plaintiff was not negligent. Defendants moved to set aside the jury verdict and for a new trial, arguing that the jury’s determination that plaintiff had not been negligent was contrary to Vehicle and Traffic Law §1236 (b) and the court’s charge to the jury. The Civil Court dismissed the jury and, then, after receiving posttrial submissions from the parties, by order entered March 28, 2016, granted defendants’ motion. The court stated that the jury had been instructed with respect to New York Pattern Jury Instruction 2:26, which provides, in pertinent part:“No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal audible for a distance of at least one hundred feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle…In considering the evidence in this case, you must determine whether defendant has proven that plaintiff failed to comply with those statutes. If you find that plaintiff violated either or both of the statutes, such a violation constitutes negligence. You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute.”1The court concluded that “[n]otwithstanding [the jury] charge and the undisputed testimony that [plaintiff] did not have a bell or other sounding device, the jury returned a verdict finding [plaintiff] not negligent.”In light of the undisputed testimony that plaintiff did not have a bell or audible device, and the fact that such failure constituted a violation of Vehicle and Traffic Law §1236 (b), the court properly determined that the verdict finding that plaintiff was not negligent could not stand since the absence of a bell or audible device constituted negligence as a matter of law (see CPLR 4404 [a]). The jury was required, but failed, to decide whether such negligence was a proximate cause of the accident, and thus, under the circumstances, its verdict in favor of plaintiff, finding defendants 100 percent liable, was against the weight of the evidence (see id.).On appeal, plaintiff further argues, as he did in the Civil Court, that defendants’ defense that plaintiff was negligent was waived because defendants did not raise it as an affirmative defense. However, the Civil Court specifically rejected this argument, correctly noting that defendants could only waive known defenses and “[d]efendant[s] did not know about this defense until plaintiff admitted at trial that his bicycle was not equipped with a bell or other sounding device [and t]herefore defendant[s] could not have interposed a negligence per se defense in its answer” (see e.g. Long Is. Light Co. v. American Re-Ins. Co., 123 AD3d 402 [2014]; Modern Holding Co. v. Ridgewood Sav. Bank, 210 AD2d 465 [1994]).In view of the foregoing, and as plaintiff’s remaining contentions are either speculative or lack merit, the order is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 20181. The charge is derived in part from Vehicle and Traffic Law §1236 (b) which states, “No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal audible for a distance of at least one hundred feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.”Mark Marcu and Petronela Popa, appellants pro se.Martyn, Toher, Martyn & Rossi (Nicole D. Fogarty, Esq.), for respondents.2016-2429 Q C. MARCU v. COMFORT SUITES HOTEL — Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 29, 2016. The order granted defendants’ motion to dismiss the complaint.ORDERED that the order is affirmed, without costs.Plaintiffs commenced this action to recover for the theft of their vehicle, while the vehicle had been parked in defendants’ hotel guest parking lot, and for their personal items which had been left in the vehicle. Plaintiffs alleged that they had been guests at defendants’ hotel and that defendants had failed to provide “a safe environment” and were strictly liable under the common-law doctrine of infra hospitium. Defendants moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), contending that the common-law doctrine upon which plaintiffs relied is inapplicable and that plaintiffs had failed to show any negligence on their part. Plaintiffs submitted unsworn opposition and surreply papers in which they asserted that they were not basing defendants’ liability upon a theory of bailment. By order entered July 29, 2016, the Civil Court granted defendants’ motion.“[T]he phrase infra hospitium appears to mean nothing more or less than that the property of the guest is brought within the precincts of the inn; or, if not actually brought within the four walls, the goods come in the care and under the charge of the innkeeper” (Penchas v. Hilton Hotels Corp., 198 AD2d 10, 11 [1993] [internal quotation marks and citations omitted]; see Lader v. Warsher, 165 Misc 559 [Columbia County Ct 1937]). Here, plaintiffs made no showing that their vehicle had been placed within the four walls of the hotel structure or even within defendants’ care and under its charge. There were no gates or security at the lot. Plaintiffs retained the keys to the vehicle and did not claim that defendants, in any way, had prevented them from having free access to the vehicle. Indeed, the evidence showed that there were signs in the hotel guest parking lot which stated that the “user assumes all risks.”Plaintiffs correctly assert that they are not basing defendants’ liability upon a theory of bailment, as plaintiffs failed to demonstrate that they had relinquished possession and control of their vehicle to defendants (see Ellish v. Airport Parking Co. of Am., 42 AD2d 174 [1973], affd on op below 34 NY2d 882 [1974]).Plaintiffs’ remaining contentions on appeal are either unpreserved or without merit.Accordingly, the order is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018Colin V. Patterson, appellant pro se.China Construction USA, respondent pro se (no brief filed).2017-815 RI C. PATTERSON v. CHINA CONSTR. USA — Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 9, 2015. The judgment, after a nonjury trial, dismissed the action.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover the principal sum of $4,570.18 for damage sustained to his automobile. He alleged that his vehicle had hit something when he had been driving, after dark, on the Staten Island Expressway, through a construction area allegedly controlled by defendant. After a nonjury trial, at which no photographs of the construction site were provided, and neither plaintiff nor his witnesses were able to identify what plaintiff’s automobile had hit, the Civil Court dismissed the action.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]).Section 619-3.02 of the Department of Transportation Manual, entitled Basic Work Zone Traffic Control, provides as follows:“the Contractor shall control traffic so that a person who has no knowledge of conditions may safely and with a minimum of discomfort and inconvenience ride, drive, or walk, day or night, over all or any portion of the highway and/or structure under construction where traffic is to be maintained. The Contractor shall cease operations and restore the traveled way to safe operating condition during any specific periods listed in the contract documents, at such times as traffic renders conditions unsafe to continue work, and during periods of darkness (before sunrise or after sunset), fog, snow or rain, high winds, or other inclement weather that renders conditions unsafe to continue work, for either the traveling public or the workers. The Engineer will determine when traffic or weather conditions render work operations unsafe.”Here, plaintiff failed to identify with any specificity the defect that allegedly caused the damage to his vehicle and, in any event, failed to attribute any such defect to defendant’s conduct. Consequently, the dismissal of the action rendered substantial justice according to the rules and principle of substantive law (see CCA 1804, 1807; Siegel v. City of New York, 86 AD3d 452 [2011]).Accordingly, the judgment is affirmed.PESCE, P.J., WESTON and ELLIOT, JJ., concur.January 19, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2016-235 K CR. THE PEOPLE v. DIAZ — Motion by Seymour W. James, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered December 29, 2015, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated November 13, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.January 19, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.2017-1333 Q CR. THE PEOPLE v. URENA, ANA L. — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered June 9, 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 opposition thereto, it isORDERED that the motion is granted and Alan Ross, Esq., is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-1986 Q C. LAYACHI v. LUFTHANZA GERMAN AIRLINES — Appeal from an order of the Civil Court of the City of New York, Queens County, entered May 16, 2017.On the court’s own motion, it isORDERED that the appeal is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511).January 19, 2018By: Elliot, J.P., Pesce, Aliotta, JJ.2017-2018 K CR. THE PEOPLE v. FREEMAN, DIANE C. — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered October 19, 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 opposition thereto, it isORDERED that the branch of the motion seeking the assignment of counsel is denied, as appellant was convicted of a violation and is not subject to further incarceration (see People v. Garcia, 93 NY2d 42, 46 [1999]; People v. Letterio, 16 NY2d 307 [1965]; People v. Russo, 149 AD2d 255, 258 [1989]; see also People v. Farinaro, 36 NY2d 283 [1975]); and it is further,ORDERED that the branch of the motion seeking leave to prosecute the appeal as a poor person is granted; and it is further,ORDERED, on the court’s own motion, that an enlargement of time to perfect the appeal is granted and the appeal shall be perfected by April 6, 2018; and it is further,ORDERED that the court stenographer or a certified transcriber, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to appellant and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that appellant shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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 appellant with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 20182017-2050 K CR. THE PEOPLE v. SANTIAGO, SOPHIE — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered September 13, 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 opposition thereto, it isORDERED that the motion is granted and MARK DIAMOND, ESQ. is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 20182017-2179 RI CR. THE PEOPLE v. MIRANDA, EULOGIO — Motion by appellant for leave to prosecute an appeal from judgments of conviction of the Criminal Court of the City of New York, Richmond County, rendered October 6, 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 opposition thereto, it isORDERED that the motion is granted and STEVEN A. FELDMAN, ESQ. is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 20182017-2230 Q CR. THE PEOPLE v. GRANT, MARKLAND — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County, rendered October 10, 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 opposition thereto, it isORDERED that the branch of the motion seeking the assignment of counsel is denied, as appellant was convicted of a violation and is not subject to further incarceration (see People v. Garcia, 93 NY2d 42, 46 [1999]; People v. Letterio, 16 NY2d 307 [1965]; People v. Russo, 149 AD2d 255, 258 [1989]; see also People v. Farinaro, 36 NY2d 283 [1975]); and it is further,ORDERED that the branch of the motion seeking leave to prosecute the appeal as a poor person is granted; and it is further,ORDERED, on the court’s own motion, that an enlargement of time to perfect the appeal is granted and the appeal shall be perfected by April 6, 2018; and it is further,ORDERED that the court stenographer or a certified transcriber, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to appellant and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that appellant shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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 appellant with a copy of the presentence report, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 20182017-2297 K CR. THE PEOPLE v. IWASZEK, DAWID — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered November 2, 2017, as a poor person, for the assignment of counsel, and for an enlargement of time to perfect the appeal.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and Appellate Advocates is assigned as counsel; and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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, if any, prepared in connection with appellant’s sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.January 19, 2018
