MATTER of Binong Xu, res, v. Mark Sullivan, ap — (Proceeding No. 1)MATTER of Mark Sullivan, ap, v. Binong Xu, res — (Proceeding No. 2) (Docket Nos. F-4939-14/14B/16C)Kenneth M. Tuccillo, Hastings on Hudson, NY, for appellant.Amanda Norejko, New York, NY, for respondent.Appeals by the father from (1) an order of the Supreme Court, Kings County (IDV Part) (Patricia E. Henry, J.), dated June 15, 2016, and (2) an order of commitment of that court dated July 20, 2016. The order, after a hearing, and upon a decision of that court, also dated June 15, 2016, granted the mother’s petition to enforce the father’s child support obligation and to find him in civil contempt, denied the father’s petition for a downward modification of his child support obligation, adjudged the father in civil contempt for his failure to comply with the child support provision of the parties’ judgment of divorce, and directed that the father be incarcerated unless he paid arrears in the sum of $20,211.97 within 30 days. The order of commitment, upon the order and the father’s failure to purge his contempt, directed that the father be committed to the custody of the sheriff of the City of New York for a period of 60 days unless he paid a purge amount of $17,664.50.ORDERED that the order and the order of commitment are affirmed, without costs or disbursements.The parties, who were divorced in 2012, have one child in common, of whom the mother had sole physical and legal custody. Pursuant to the parties’ judgment of divorce, the father was obligated to pay $298 in child support monthly, along with certain other expenses. The mother petitioned to enforce the father’s support obligation and to find the father in civil contempt. In support of her petition, the mother proffered evidence that the father owed arrears in excess of $20,000. The father petitioned for a downward modification of his support obligation.After a hearing, the Supreme Court found that the father’s failure to meet his support obligation was the result of his voluntary underemployment. The court therefore granted the mother’s petition, adjudged the father in civil contempt, directed that he be incarcerated unless he paid arrears in the sum of $20,211.97 within 30 days, and denied the father’s modification petition. The court thereafter issued an order of commitment, directing that the father be incarcerated for a period of 60 days unless he paid a purge amount of $17,664.50. The father appeals.A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court (see Shemtov v. Shemtov, 153 AD3d 1295; Cassarino v. Cassarino, 149 AD3d 689, 690; Matter of Hughes v. Kameneva, 96 AD3d 845, 846). To prevail on a motion to hold a party in civil contempt, the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court’s order, and (4) prejudice to the right of a party to the litigation (see El-Dehdan v. El-Dehdan, 26 NY3d 19, 29; Shemtov v. Shemtov, 153 AD3d at 1295). Once the moving party makes this showing, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order (see El-Dehdan v. El-Dehdan, 26 NY3d at 35; Shemtov v. Shemtov, 153 AD3d at 1295).Here, the mother established by clear and convincing evidence that the father violated the child support provisions of the judgment of divorce (see Domestic Relations Law §245; Cassarino v. Cassarino, 149 AD3d at 691). In opposition, the father did not refute the mother’s showing or offer evidence establishing a defense (see Cassarino v. Cassarino, 149 AD3d at 691). Accordingly, the Supreme Court properly adjudged the father in civil contempt for his failure to comply with the child support provision of the parties’ judgment of divorce, and directed that the father be incarcerated unless he purged the contempt.The Supreme Court likewise properly denied the father’s petition for a downward modification of his child support obligation. ”A ‘party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification’” (Matter of Rolko v. Intini, 128 AD3d 705, 706, quoting Matter of Baumgardner v. Baumgardner, 126 AD3d 895, 896-897; see Family Ct Act §451; Matter of Lagani v. Li, 131 AD3d 1246; Matter of Pepe v. Pepe, 128 AD3d 831, 834). Where loss of employment is the basis of the petition for downward modification, the parent “must submit competent proof that ‘the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity’” (Matter of Rolko v. Intini, 128 AD3d at 706, quoting Matter of Riendeau v. Riendeau, 95 AD3d 891, 892; see Matter of Rubenstein v. Rubenstein, 114 AD3d 798; Ashmore v. Ashmore, 114 AD3d 712, 713). ”The proper amount of support to be paid… is determined not by the parent’s current economic situation, but by the parent’s assets and earning capacity” (Matter of Muselevichus v. Muselevichus, 40 AD3d 997, 998-999; see Matter of Rolko v. Intini, 128 AD3d at 706; Matter of Baumgardner v. Baumgardner, 126 AD3d at 896-897).Here, the father demonstrated that he was unemployed or underemployed, but he did not demonstrate that this constituted a change of circumstances. On the contrary, when the father’s support obligation was set in the divorce action, the Supreme Court imputed an income of $21,050 annually since the father was earning only a few thousand dollars a year, and nothing in the record suggested that, in the years since the parties’ divorce, the father made greater efforts to obtain employment at even a subsistence level, much less a level commensurate with his skills and education (see Matter of Rolko v. Intini, 128 AD3d at 706; Matter of Rubenstein v. Rubenstein, 114 AD3d at 798; Matter of Suyunov v. Tarashchansky, 98 AD3d 744, 745). Consequently, the court correctly concluded that the father failed to demonstrate changed circumstances warranting modification of his support obligation, and properly denied his petition for downward modification (see Matter of Rolko v. Intini, 128 AD3d at 706).The father’s remaining contentions are without merit.RIVERA, J.P., DILLON, CONNOLLY and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Hall and Sgroi, JJ.MATTER of Elizabeth C. (Anonymous). Administration for Childrens Services, res; Omar C. (Anonymous), ap — (Proceeding No. 1)MATTER of Alexander C. (Anonymous). Administration for Childrens Services, res; Omar C. (Anonymous), ap — (Proceeding No. 2)MATTER of Joana C. (Anonymous). Administration for Childrens Services, res; Omar C. (Anonymous), ap — (Proceeding No. 3)MATTER of Jesus C. (Anonymous). Administration for Childrens Services, res; Omar C. (Anonymous), ap — (Proceeding No. 4)MATTER of Oscar C. (Anonymous). Administration for Childrens Services, res; Omar C. (Anonymous), ap — (Proceeding No. 5) (Docket Nos. N-5734-16, N-5736-16, N-5737-16, N-5738-16, N-5739-16)APPEAL by Omar C., in five related child protective proceedings pursuant to Family Court Act article 10, from an order of the Family Court (Joan L. Piccirillo, J.), dated April 22, 2016, and entered in Queens County, which denied his motion for a hearing pursuant to Family Court Act §1028.Center for Family Representation, New York, NY (Michele Cortese and Latham & Watkins LLP [Tracey Orick, pro hac vice, and Scott D. Gallisdorfer, pro hac vice], of counsel), for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr, Elizabeth S. Natrella, and John Moore of counsel), for respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Gary Solomon), attorney for the children.MASTRO, J.P.The present matter requires us to determine whether a parent in abuse and/or neglect proceedings brought pursuant to Family Court Act article 10, who has been excluded from the household in which the children reside by an order of protection, is entitled to a prompt hearing in accordance with Family Court Act §1028 to challenge the propriety and necessity of the exclusion. Based upon the statutory framework of article 10, and mindful of the weighty due process considerations implicated by such an exclusion, we conclude that the parent is entitled to a prompt hearing.Factual BackgroundThe appellant, Omar C. (hereinafter the father), is the father of the five children who are the subjects of these proceedings: Elizabeth C., Alexander C., Joana C., Jesus C., and Oscar C., all of whom were born between 2004 and 2014. Prior to the filing of the initial petitions in this matter, he lived with the children and their mother at a residence in Queens. On March 15, 2016, the petitioner, Administration for Children’s Services (hereinafter ACS), filed five separate petitions pursuant to Family Court Act article 10 against the father, alleging that he had sexually abused his 14 year-old niece, Erika C., on an unspecified date during the preceding November, and that the children therefore were derivatively abused and/or neglected. On the same day that the petitions were filed, the Family Court issued a “full stay away” temporary order of protection which expressly excluded the father from the family home. Although the temporary order of protection recited that the father was present in court and was advised of the contents of the order, no hearing was conducted prior to its issuance. The order further recited that it would remain in force until and including the following day. The next morning, March 16, 2016, the court issued a second temporary order of protection, identical in all relevant respects to the first, with an expiration date of August 4, 2016. Again, no hearing preceded the issuance of this temporary order of protection excluding the father from the residence and from contact with the children. However, it appears that the matter was set down for a hearing pursuant to Family Court Act §1028 to be held on March 18, 2016, for the purpose of assessing the propriety of the exclusion of the father from the family home.Family Court Act §1028 mandates, with certain exceptions not relevant here, that upon the request of a parent for a hearing to determine whether a child who has been temporarily removed should be returned, or whether the removal should continue based on an imminent risk to the child’s life or health, a hearing shall be held within three court days of the request.The hearing commenced and limited testimony was taken on March 18, before the Family Court adjourned the matter for a continued hearing on March 21. However, on that day, ACS filed new abuse and/or neglect petitions against the father based on the same allegations, and withdrew the previously filed petitions of March 15. In connection therewith, the court issued a third temporary order of protection on March 22, 2016. That order, which was issued ex parte and had an expiration date of May 11, 2016, again excluded the father from contact with the children and from the residence where the children continued to live with their mother. On the same date, the court orally advised counsel on the record that a hearing pursuant to either Family Court Act §1027 or §1028 was “inappropriate” because “I do not consider this a removal… and the standard to be applied is not imminent risk.” The father’s counsel indicated that he would make a formal written motion for a section 1028 hearing, and the matter was adjourned to March 29.On the morning of March 29, the Family Court released the children to the mother on the condition that she abide by the previously issued order of protection excluding the father from the home. The court also issued another order of protection, to expire after a period of one year, which excluded the father from the home but authorized his agency-supervised visitation with the children. Additionally, the court signed an order on behalf of the father directing the parties to show cause why the children should not be paroled to their parents and why the father should not be permitted to resume residency in the family home. The order to show cause sought a hearing pursuant to Family Court Act §1028 to determine the merits of the father’s motion. In support, the father took the position that his loss of the physical care and custody of the children incidental to his exclusion from the family home was the functional equivalent of a removal of the children, thereby entitling him to the heightened due process afforded by a section 1028 hearing.The mother and the attorney for the children supported the father’s motion, while ACS opposed it on the ground that the children remained at imminent risk of harm in view of the allegations against the father. ACS took the position that a hearing pursuant to Family Court Act §1028 was unwarranted because the children had not been removed from the family home, and their legal custody had not been transferred to another party. ACS reasoned that, since the father had merely been excluded from the home, his remedy was to seek a hearing pursuant to Family Court Act §1061 to modify the order of protection. Such hearings are discretionary in nature and need not be held within any particular time frame.On April 4, 2016, the Family Court orally denied the father’s motion on the record, with a written decision to follow. The court further indicated that it would treat the motion as an application for a Family Court Act §1061 modification hearing. On April 22, 2016, the Family Court issued its written decision and order denying the father’s motion for a section 1028 hearing on the ground that such hearings are only appropriate where a child or children have been physically removed from their residence, a circumstance which was not present in this case. The father appeals from this order, raising statutory and constitutional arguments for our consideration.By way of additional background, we note that a Family Court Act §1061 hearing to modify the order of protection commenced on April 20, 2016, and culminated in an order dated June 13, 2016, denying, pending further proceedings, a modification of the order of protection.Thereafter, during the pendency of this appeal, this Court was advised that the Family Court proceedings had been resolved as a result of a seven-month adjournment in contemplation of dismissal that had been reached MATTER. Pursuant to that disposition, the order of protection excluding the father from the family residence was no longer in effect, and the father had returned to the home in February 2017. Accordingly, the additional question of whether the instant appeal has been rendered academic is now presented.AnalysisMootnessSince the father has now returned to the family household and the order of protection excluding him therefrom is no longer in effect, the issue of whether this appeal is academic—and, if so, whether an exception to the mootness doctrine applies—is squarely before us. At the oral argument of this appeal, the father and ACS took the position that this matter has indeed been rendered academic, but that the circumstances of the case warrant application of the mootness exception so that the merits may be decided. Conversely, the attorney for the children insisted that the appeal is not academic at all, owing to the enduring consequences that flow from the abuse allegations made against the father. We find the position of the father and ACS to be persuasive.“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal [citation omitted]. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” (Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 713-714 [citations omitted]; see Matter of Kirkland v. Annucci, 150 AD3d 736, 737-738; Matter of Powell v. Mount St. Mary Coll., 142 AD3d 1082, 1082-1083). Put another way, because courts are not in the business of issuing advisory opinions, they generally will refrain from deciding the merits of a matter “unless an adjudication of the merits will result in immediate and practical consequences to the parties” (Coleman v. Daines, 19 NY3d 1087, 1090; see Matter of New York State Commn. on Jud. Conduct v. Rubenstein, 23 NY3d 570, 576; Matter of Colon v. Annucci, 151 AD3d 1061, 1062).Application of the foregoing principles to the facts of this case leads us to conclude that the present matter is academic. At issue on this appeal is whether the father was entitled to a hearing pursuant to Family Court Act §1028 to seek his return to the family residence so that he could once again enjoy the care and custody of his children. However, since the temporary order of protection excluding him from the home is no longer operative, and since the father has actually resumed living with the children, it is clear that any determination we might issue in this matter would have no direct effect on the rights of the parties before us (see e.g. Matter of Hearst Corp. v. Clyne, 50 NY2d at 714; Matter of Yadgarova v. Yonatanov, 144 AD3d 830, 831). Our decision in Matter of Lucinda R. (Tabitha L.) (85 AD3d 78) is particularly instructive in this regard. There, three children who were the subjects of neglect proceedings were removed from the residence of their mother, who was prohibited by an order of protection from all unsupervised contact with them, and placed in the care of their father, who resided at another location. Like the father in the present case, the mother in Matter of Lucinda R. requested a hearing pursuant to Family Court Act §1028, seeking to be reunited with her children. The Family Court denied the request and the mother appealed, but while the appeal was pending, the Family Court returned the children to the mother. Accordingly, our Court determined that “the mother’s appeal challenging the denial of her application for a Family Court Act §1028 hearing is moot, since she has now received the relief that she would have received had the Family Court Act §1028 hearing been conducted” (Matter of Lucinda R. [Tabitha L.], 85 AD3d at 83).The attorney for the children in the case before us contends, however, that the appeal is not in fact academic because there are enduring legal and reputational consequences to the father which flow from the issuance of multiple orders of protection against him. To be sure, orders which determine, or strongly suggest, the commission of wrongdoing by a party may well adversely affect that party’s interests in future legal proceedings and have a stigmatizing effect on his reputation, even when the substantive relief they direct is no longer warranted or in effect. Since those enduring consequences can be obviated by a successful appellate challenge, courts have consistently determined that appeals from such orders are not academic (see e.g. Matter of New York State Commn. on Jud. Conduct v. Rubenstein, 23 NY3d at 576-578 [enduring adverse reputational consequences from resolved disciplinary proceeding]; Matter of Bickwid v. Deutsch, 87 NY2d 862, 863 [potential enduring consequences from civil contempt order where sentence had been completed]; Matter of Williams v. Cornelius, 76 NY2d 542, 546 [lasting consequences from criminal contempt adjudication despite service of sentence]). Arguably, the most common scenario in which such circumstances arise is an appeal from an order of protection which, despite the expiration of its operative provisions, contains language indicating a strong likelihood that the appealing party committed a criminal or family offense and directing him to desist from the commission of similar offenses while the order remains in effect. Such an appeal is not academic, since the party’s interest in avoiding the adverse legal and reputational consequences of the order will be directly impacted by the determination of the appeal (see Matter of Veronica P. v. Radcliff A., 24 NY3d 668, 671-672; Matter of Sommella v. Kimble, 150 AD3d 1018; Matter of Cody W. [Ronald L.], 148 AD3d 914, 915; Matter of Crenshaw v. Thorpe-Crenshaw, 146 AD3d 951, 951-952).However, while the orders of protection issued against the father in the present case contained language similar to that found in the orders reviewed in the foregoing decisions, none of those orders of protection is the subject of the present appeal. Rather, the father seeks review only of the Family Court’s determination denying his motion for a hearing pursuant to Family Court Act §1028. Significantly, that determination contains no finding that he engaged in misconduct, and carries with it no enduring adverse legal or reputational ramifications for the father. Moreover, since such potential effects are absent from the challenged order, a determination of this appeal in favor of the father would do nothing to vindicate any interest he has in avoiding negative consequences. Rather, should he prevail on this appeal, the father would only be entitled to a determination that the Family Court should have granted his motion for a hearing pursuant to Family Court Act §1028, a ruling which would do nothing to ameliorate any lingering adverse effects that may flow from the unappealed orders of protection issued against him. Accordingly, the reliance of the attorney for the children on decisions in appeals from expired orders of protection fails to alter our conclusion that the present appeal is academic.Nevertheless, a determination that the appeal has been rendered academic does not end our inquiry. While an academic appeal ordinarily suffers the fate of dismissal, the father requests that the merits of his appeal be considered under the exception to the mootness doctrine. This exception may apply where the circumstances of a case evince an overarching public interest in its adjudication, including “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” (Matter of Hearst Corp. v. Clyne, 50 NY2d at 714-715; see City of New York v. Maul, 14 NY3d 499, 507; Matter of In Defense of Animals v. Vassar Coll., 121 AD3d 991, 992-993). A review of these factors persuades us that the exception to the mootness doctrine should be applied herein.Initially, Family Court orders excluding a parent from his or her child’s residence based on allegations of abuse or neglect are not uncommon, as both Family Court Act §§1027(b)(v) and 1028(f) direct the court, when faced with a request to remove the child from the family home, to consider whether the issuance of an order of protection excluding the accused parent from the home may be a more efficacious means of eliminating imminent risk to the child. Moreover, we are aware of at least one other reported case in which a parent who challenged his exclusion from the family residence sought a prompt hearing pursuant to Family Court Act §1028, as in the present case, and was denied such a hearing (see Matter of T.L., Jr., 13 Misc 3d 1179 [Fam Ct, Queens County]). Additionally, as we pointed out in Matter of Lucinda R. (Tabitha L.) (85 AD3d at 84), since Family Court Act §1028 requires the holding of an expedited hearing within three court days, “[w]here… a parent is denied his or her request for a hearing pursuant to [that statute], appellate review of such a denial cannot be completed before three court days have elapsed. As such, this issue is capable of repetition and likely to evade review” (see also City of New York v. Maul, 14 NY3d at 507). Finally, the issue presented on this appeal— whether the excluded parent is entitled to the expedited hearing mandated by Family Court Act §1028—raises a substantial and novel issue of statewide importance regarding the rights of parents and children whose relationship has been severed, or at least substantially altered, by the conduct of the State (see Matter of Lucinda R. [Tabitha L.], 85 AD3d at 85). Accordingly, we turn to the merits of the father’s appeal.Necessity of_Family Court_Act_§_1028_HearingFamily Court Act §1028 provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding. To that end, the statute reads, in relevant part, as follows:“(a) [u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the child’s attorney for an order returning the child, the court shall hold a hearing to determine whether the child should be returned… Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned. Upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child’s life or health.”Significantly, the statute further mandates that “(f) [t]he court shall also consider and determine whether imminent risk to the child would be eliminated by the issuance of a temporary order of protection… directing the removal of a person or persons from the child’s residence.”As they did before the Family Court, the father and the attorney for the children maintain that the father’s motion for an expedited hearing pursuant to Family Court Act §1028 to challenge his exclusion from contact with the children should have been granted. Furthermore, contrary to the position it previously took, ACS now concurs that a section 1028 hearing should have been held in this matter. We likewise agree with the parties’ unanimous assessment of this issue by concluding that the temporary severance of a parent-child relationship under article 10 of the Family Court Act triggers the right to a section 1028 hearing.Our analysis proceeds from the fundamental principle that, with limited exceptions, “[a] parent has a ‘right’ to rear [his or her] child, and the child has a ‘right’ to be reared by [his or her] parent” (Matter of Bennett v. Jeffreys, 40 NY2d 543, 546; see Santosky v. Kramer, 455 US 745, 753-754; Rankel v. County of Westchester, 135 AD3d 731, 733 ["parents have a liberty interest in the care and custody of their children, and children have a parallel liberty interest in not being dislocated from their family"]). In recognition of these reciprocal, constitutionally protected liberty interests in “‘the emotional attachments that derive from the intimacy of daily family association’” (Southerland v. City of New York, 680 F3d 127, 142 [2d Cir], quoting Kia P. v. McIntyre, 235 F3d 749, 759 [2d Cir]), courts have acknowledged that “‘[a]s a general rule… before parents may be deprived of the care, custody or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order [approving,] permitting [, or ordering] removal—must be accorded to them’” (Graham v. City of New York, 869 F Supp 2d 337, 350 [ED NY], quoting Tenenbaum v. Williams, 193 F3d 581, 593 [2d Cir]; see Southerland v. City of New York, 680 F3d at 142 ["except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected"]). Of course, a hearing before removal of a child from his or her parents’ custody may not always be possible, and “government officials may remove a child from his or her parents’ custody before a hearing is held where there is an objectively reasonable basis for believing that a threat to the child’s health or safety is imminent” (Gottlieb v. County of Orange, 84 F3d 511, 520 [2d Cir]). However, even where a child is removed from his or her parent’s custody under emergency circumstances, the parent is still entitled to “a hearing ‘at a meaningful time and in a meaningful manner’” (id. at 520, quoting Armstrong v. Manzo, 380 US 545, 552), and the parent “may have a viable procedural due process claim… if [he or she] does not receive a prompt postdeprivation hearing” (Rankel v. County of Westchester, 135 AD3d at 733-734).Consistent with the foregoing, the child protective statutes of Family Court Act article 10 have a twofold purpose: “to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being [and] to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met” (Family Ct Act §1011; see Matter of Maria C. [Delilah C.], 118 AD3d 874, 874; Matter of Brianna L. [Marie A.], 103 AD3d 181, 186-187; Matter of Lucinda R. [Tabitha L.], 85 AD3d at 86). Article 10 contains a number of provisions that seek to balance these competing interests. For example, Family Court Act §1022(a)(i)(B) permits the temporary removal of a child before a petition is even filed, as long as, inter alia, immediate removal appears necessary “to avoid imminent danger to the child’s life or health.” Similarly, once a child protective petition has been filed, Family Court Act §1027(a)(iii) authorizes the court to conduct a hearing “to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent,” with the hearing to be scheduled for the next court day after the application for the hearing has been made. Family Court Act §1027(b)(i) also provides that upon such a hearing, temporary removal is only authorized where the court finds it necessary “to avoid imminent risk to the child’s life or health” (see Nicholson v. Scoppetta, 3 NY3d 357, 376). Finally, Family Court Act §1028 mandates that where no section 1027 hearing has occurred prior to removal, the court, upon request, must hold a hearing within three court days to determine whether the child should be returned (see Matter of Danazah B.D. [Audrey B.], 125 AD3d 964, 965 ["(t)he Family Court has no discretion to deny, without a hearing, a parent's application pursuant to Family Court Act §1028 if the conditions of the statute are satisfied"]; Matter of Kristina R., 21 AD3d 560, 562-563 [same]; Matter of Michael Z., 40 AD2d 1034, 1034 [if a child is temporarily removed without a hearing at which the parent can fully participate, "(d)ue process is accorded the parent by the procedure set forth in section 1028 of the Family Court Act"]). Moreover, the court is required to grant the application for the return of the child “unless it finds that the return presents an imminent risk to the child’s life or health” (Family Ct Act §1028[a]). Thus, the expedited nature of the hearing conducted under Family Court Act §1028 addresses the parent’s procedural due process rights, while the requirement that the child be returned unless the agency can prove an “imminent risk” to him or her satisfies substantive due process requirements.Accordingly, the foregoing statutes and others within part 2 of Family Court Act article 10, in recognition of the serious constitutional implications of interfering with the relationship between a parent and child, only permit the removal of the child from the parent upon the conducting of a prompt assessment of the situation while applying the substantive standard of imminent risk to the child. It is true that the statutes within part 2 generally employ the term “removal” in the context of physically removing the child from his or her home (see e.g. Family Ct Act §1021 [authorizing certain individuals to "temporarily remove a child from the place where he or she is residing" with parental consent]; Family Ct Act §1022[a][i] ["(t)he family court may enter an order directing the temporary removal of a child from the place where he or she is residing before the filing of a petition"]; Family Ct Act §1026[a] [setting forth procedural protocols when "there has been an emergency removal of a child from his or her home without court order"]; Family Ct Act §1027[b][ii] [referencing the need to determine "whether reasonable efforts were made… to prevent or eliminate the need for removal of the child from the home"]; Family Ct Act §1028[b], [c], [d] [also requiring consideration of whether reasonable efforts were made to avoid the need for "removal of the child from the home"]; see also Nicholson v. Scoppetta, 3 NY3d at 372 [noting that Family Court Act §§1022, 1024, and 1026 through 1028 all "relate to the removal of a child from home"]; Matter of Lucinda R. [Tabitha L.], 85 AD3d at 86 ["(a) survey of statutes within article 10 shows that the word 'removal' or 'removed' is used in the context of the State's effectuation of the child's removal from the home"]).However, no language in any of the statutes expressly limits the due process protections they contain to only those situations involving the physical removal of the child from the family household. Instead, the repeated references in those statutes to the child’s home appear merely to be an acknowledgment that the child’s removal from the home traditionally has been the remedy employed to protect the child from an allegedly abusive or neglectful parent. But physical removal from the home itself is not what protects the child; rather, it is the severance of contact between the child and the alleged offending parent which offers that protection, and which concomitantly triggers the parent’s due process rights. Where that severance is accomplished through an alternate mechanism—such as the stay away order of protection excluding the father from the family residence in this case—the same interference with the constitutionally protected parent-child relationship arises, and the same due process protections must be afforded to the parent. Indeed, several Family Court Act article 10 statutes recognize this principle by reciting that once a prompt assessment has been performed and a determination of imminent risk to the child has been made, the court is additionally required to consider and determine, as an alternative to the child’s removal, whether the imminent risk would be eliminated by the issuance of a temporary order of protection directing the removal of the alleged offender from the child’s residence pending resolution of the article 10 child protective proceeding (see Family Ct Act §§1022[a][v]; 1027[b][v]; 1028[f]). Consequently, the statutory framework of Family Court Act article 10 clearly contemplates that both the temporary physical removal of the child from the family household and the temporary exclusion of a parent from the home and from contact with the child warrant the same due process protections—an expedited hearing into the need for such relief, and a determination that the relief is necessary to eliminate an imminent risk to the child’s life or health (see Nicholson v. Scoppetta, 3 NY3d at 379 [observing that under Family Court Act §1027, only after a court has conducted a prompt hearing and found that the child is at imminent risk can it consider whether that risk may be eliminated by excluding the offending parent, rather than removing the child, from the family residence]; Matter of Naomi R., 296 AD2d 503, 504 [reinstating a temporary order of protection excluding the respondent father from the home following an expedited hearing pursuant to Family Court Act §1027 and a determination that the father's return to the home would present an imminent risk to the children, thereby upholding the application of these due process protections to a parent when he is excluded from the household, not only when the child is removed from the home]).Since the removal of a child from the family home and the exclusion of a parent from that same home require equal showings of imminent risk, and both result in similar infringements on the constitutionally protected parent-child relationship, we conclude that both trigger the same due process protections. Accordingly, in cases such as the one before us, where no “imminent risk” hearing is held before the parent is excluded from the household and the parent-child relationship is thereby severed, the holding of an expedited hearing within three court days pursuant to Family Court Act §1028, upon the parent’s request, is mandated so that the question of reunification of the parent and child pending resolution of the proceeding may be determined. Due process requires the parent’s prompt, full, and fair opportunity to contest his or her exclusion from daily interaction with his or her children in this manner.The contrary reasoning of the Family Court in this case, and of the court in Matter of T.L., Jr. (13 Misc 3d 1179), is unpersuasive. Both of those courts concluded that the hearing procedure in Family Court Act §1028 is strictly limited only to those situations in which there is a physical removal of the child from the family residence, and that the mechanism for a parent to challenge a full stay away order of protection barring him from the home and from contact with the children is an application pursuant to Family Court Act §1061 to modify the order of protection. However, this approach improperly elevates the physical location of the child over the interference with the constitutionally protected parent-child relationship as the determinative factor in assessing what process is due to the excluded parent. In Matter of Lucinda R. (Tabitha L.) (85 AD3d 78), we rejected just such a focus on the children’s location where the Family Court had ruled that a section 1028 hearing was unavailable if the subject children had been removed from the home of one parent and then placed in the custody of the other parent rather than with a governmental agency. Eschewing reliance upon any distinction between the children’s physical relocation to another parent as opposed to foster care, we held that entitlement to a hearing pursuant to Family Court Act §1028 was instead triggered by the interference with the parent’s constitutional right to the care and custody of the children, since “part 2 of article 10, of which Family Court Act §1028 is part, is concerned with the State’s power to disrupt a parent’s physical custody of a child” (Matter of Lucinda R. [Tabitha L.], 85 AD3d at 87). Inasmuch as physical custody was disrupted in that case, we determined that the aggrieved parent was entitled to a Family Court Act §1028 hearing.Moreover, in Matter of Commissioner of Social Servs. (Alexandria H.) (159 Misc 2d 345, 348 [Fam Ct, Kings County]), the Family Court determined that once a neglect petition was filed and the subject child, although not physically removed from her residence, was removed from the care and custody of her father, the respondent father was entitled to an expedited hearing pursuant to Family Court Act §1028, since “[i]t is [the respondent father's] status as a legal and physical custodian of the child that activates the rights under Family Court Act §1028.” Also instructive in this regard is the decision of the United States Court of Appeals for the Second Circuit in Gottlieb v. County of Orange (84 F3d 511). There, a father under investigation for child abuse was given the choice by the County of moving out of the family home for 90 days or having the children removed from the home pending the investigation. The father chose to move out, but he subsequently sued on the ground that his due process rights were violated because he was not afforded any opportunity for judicial review of his exclusion from the home. The Second Circuit, relying on the Alexandria H. decision, rejected the claim, noting that the due process protections of Family Court Act §1028 were available not only in situations where a child is removed from the home, but where the parent is excluded from contact with the child as well. Hence, the court reasoned that since the father could have obtained prompt judicial review of his exclusion from the home under Family Court Act §1028, his due process claim lacked merit.The issuance of a full stay-away order of protection excluding the father from the family home in the present case is for all practical purposes akin to a physical removal of the children from his care and custody, like the situations in the foregoing decisions. Indeed, that order produced the same cessation in his contact with the children, and the same severance of his relationship with them, that an order removing the children from the family residence would bring about. Since the same constitutional considerations are at issue, due process requires that the father receive the same expedited hearing applying the same “imminent risk” standard afforded by Family Court Act §1028 in seeking his reunification with the children pending the resolution of the child protective proceeding (see generally Nicholson v. Scoppetta, 3 NY3d at 376 n 8; Matter of Sara A. [Ashik A.], 141 AD3d 646, 647; Matter of Deonna E. [Marvell C.], 104 AD3d 943, 944; Matter of Forrest S.-R. [Shirley X.S.], 101 AD3d 734, 735; Matter of Kristina R., 21 AD3d at 562). To interpret Family Court Act §1028 in such a manner as to deny the father a hearing under that statute in the circumstances presented is inconsistent both with due process and with the stated purpose of article 10 to provide a mechanism to protect children while preserving parental rights (see Family Ct Act §1011). Such a construction would raise grave doubts as to the constitutionality of the statute, a result which the courts should strive to avoid (see LaValle v. Hayden, 98 NY2d 155, 161; Matter of Jacob, 86 NY2d 651, 667).Additionally, it bears noting that the mechanism available under Family Court Act §1061 for modification of an order of protection is not an adequate substitute for a hearing pursuant to Family Court Act §1028 to safeguard the due process rights of a parent in the father’s position. Unlike the latter statute, the conducting of a hearing under section 1061 is not mandated, but is left entirely to the Family Court’s discretion. Furthermore, section 1061 sets forth no timetable for holding such a hearing and, given the Family Court’s ever-burgeoning docket, it is certainly conceivable that a parent temporarily excluded from contact with his children could wait many weeks or months before a hearing on his request to reunite with them is conducted under that statute (see Matter of Lucinda R. [Tabitha L.], 85 AD3d at 81 [observing that the hearing pursuant to Family Court Act §1061 in that case was not held for nearly 18 months]). Substantively, Family Court Act §1061 authorizes modification of an order “[f]or good cause shown,” whereas the stricter standard of Family Court Act §1028(a) requires that the court grant the parent’s application to be reunited with the child unless that relief “presents an imminent risk to the child’s life or health.” Accordingly, in view of the substantial procedural and substantive differences between the two statutes, Family Court Act §1061 cannot serve as a satisfactory alternative to the due process protections afforded by Family Court Act §1028.Family Court Act article 10 child protective proceedings frequently present compelling circumstances requiring courts to make difficult decisions in the execution of their paramount obligation to protect the lives and health of the children before them. However, those decisions must include a balancing of each child’s welfare with the constitutionally protected interest in the relationship between parent and child. Since an exclusionary order of protection compromises the parent-child relationship in the same manner as the relocation of the child would, it must be governed by the same legal standards as are provided for removal of a child in Family Court Act §§1027 and 1028. Due process demands nothing less.Accordingly, the order is reversed, on the law.LEVENTHAL, HALL and SGROI, JJ., concur.ORDERED that the order is reversed, on the law, without costs or disbursements.By Mastro, J.P.; Leventhal, Maltese and Brathwaite Nelson, JJ.Greenpoint Mortgage Corp., plf, PE-NC, LLC, res, v. Mary M. Lamberti, appellant def — (Index No. 12093/05)In an action to foreclose a mortgage, the defendant Mary M. Lamberti appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated June 13, 2014, which denied, as academic, her motion for a mandatory settlement conference pursuant to CPLR 3408.ORDERED that the appeal is dismissed, with costs.The appeal from the order dated June 13, 2014, must be dismissed as the right of direct appeal therefrom terminated with entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the separate appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]; Greenpoint Mortgage Corp. v. Lamberti, __ AD3d __ [Appellate Division Docket No. 2015-07802; decided herewith]).MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Maltese and Brathwaite Nelson, JJ.Greenpoint Mortgage Corp., plf, PE-NC, LLC, res, v. Mary M. Lamberti, appellant def — (Index No. 12093/05)In an action to foreclose a mortgage, the defendant Mary M. Lamberti appeals, as limited by her brief, from so much of a judgment of foreclosure and sale of the Supreme Court, Nassau County (Adams, J.), entered July 13, 2015, as, upon an order of the same court entered February 26, 2015, inter alia, granting that branch of the motion of the plaintiff PE-NC, LLC, which was to confirm a Referee’s report and denying her cross motion to reject the report, confirmed the report and awarded the plaintiff PE-NC, LLC, the sum of $1,134,630.81, inclusive of counsel fees and interest.ORDERED that the judgment of foreclosure and sale is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the motion of the plaintiff PE-NC, LLC, which was to confirm the Referee’s report is denied, the cross motion of the defendant Mary M. Lamberti to reject the report is granted, the order entered February 26, 2015, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith, and for the entry of an appropriate amended judgment of foreclosure and sale.This is an action to foreclose a mortgage on real property owned by the defendant Mary M. Lamberti (hereinafter the defendant) in Woodbury. The Supreme Court granted the motion of the plaintiff PE-NC, LLC (hereinafter PE-NC), the current holder of the note and mortgage, for summary judgment on the complaint, and appointed a Referee to compute the amount due pursuant to the note and mortgage. Following a hearing, the Referee issued a report finding, inter alia, that $1,134,630.81 was due and owing to PE-NC, inclusive of counsel fees and interest on the unpaid balance, on counsel fees, and on money advanced to protect the lender’s rights in the property. PE-NC moved to confirm the Referee’s report and the computation contained therein and for leave to enter a judgment of foreclosure and sale. The defendant cross-moved to reject the report. In an order entered February 26, 2015, the court granted PE-NC’s motion and denied the defendant’s cross motion. Thereafter, in a judgment of foreclosure and sale entered July 13, 2015, the court, upon the order, confirmed the report, awarded PE-NC the sum of $1,134,630.81, and directed that the subject property be sold. The defendant appeals. We reverse the judgment insofar as appealed from and remit the matter to the Supreme Court, Nassau County, for the Referee to recompute the amount due and for the court to determine the reasonableness of the counsel fees included in the Referee’s computation, following a hearing on the issue, if necessary.The Referee must recompute the amount due. ”In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” (Dayan v. York, 51 AD3d 964, 965 [citations omitted]; see CPLR 5001[a]). Here, in view of the lengthy delay by PE-NC’s predecessors in interest in prosecuting this action, PE-NC should recover no interest for the roughly three-year period of time from when the action was commenced in 2005 to when the defendant filed a request for judicial intervention in 2008. While PE-NC did not cause this delay, it should not benefit financially, in the form of accrued interest, from this delay caused by its predecessors in interest. Furthermore, PE-NC should not recover interest on the counsel fees awarded to it. Paragraphs 7 and 21 of the mortgage are inconsistent regarding whether interest could be recovered on counsel fees. Since “ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it” (151 W. Assoc. v. Printsiples Fabric Corp., 61 NY2d 732, 734), this ambiguity must be resolved against PE-NC, whose predecessors in interest presented the mortgage. Moreover, interest awarded under paragraph 7 of the mortgage, on money advanced to protect the lender’s rights in the property, should not have been awarded at the rate of 17 percent, but at the “Note rate,” which, in this case, was 7.25 percent.“An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” (Vigo v. 501 Second St. Holding Corp., 121 AD3d 778, 779-780 [citation omitted]; see SO/Bluestar, LLC v. Canarsie Hotel Corp., 33 AD3d 986, 988). In this case, a determination must be made on the reasonableness of the counsel fees, following a hearing on that issue, if necessary.The defendants’ remaining contentions, including those concerning an intermediate order dated June 13, 2014, which are brought up for review on this appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]; Greenpoint Mortgage Corp. v. Lamberti, __ AD3d __ [Appellate Division Docket No. 2014-08300; decided herewith]), are without merit.MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Sgroi and Duffy, JJ.MATTER of James C. Telford, ap, v. William McCartney, Bureau Chief, Suffolk County, New York State Department of Corrections and Community Supervision res — (Index No. 14827/15)In a proceeding pursuant to CPLR article 78 to review a determination of William McCartney, the Suffolk County Bureau Chief of the New York State Department of Corrections and Community Supervision, dated July 29, 2015, which denied approval of the petitioner’s proposed postrelease residence, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Santorelli, J.), dated October 19, 2015, which denied the petition and dismissed the proceeding.ORDERED that the judgment is reversed, on the law, with costs, the petition is granted to the extent that the determination is annulled, and the matter is remitted to the New York State Department of Corrections and Community Supervision for a new determination consistent herewith.On or about May 21, 2015, the New York State Board of Parole (hereinafter the Parole Board) authorized the petitioner, an inmate in the custody and control of the respondent New York State Department of Corrections and Community Supervision (hereinafter DOCCS), to be released from prison subject to parole supervision. The petitioner had served 29 years of an indeterminate term of imprisonment of 15 to 45 years for convictions of sex offenses committed against two adult women.The Parole Board approved the petitioner’s release subject to certain conditions set forth in a Release Decision Notice dated May 21, 2015, which was subsequently amended by a Release Decision Notice dated July 14, 2015. The amended notice omitted a condition set forth in the first notice requiring the petitioner to propose a residence for investigation by DOCCS.The petitioner had advised the Parole Board and DOCCS that he planned to live in the family home in Suffolk County with his mother and sister (hereinafter the Telford home), where he had lived from the time he was four years old until he was incarcerated. Although three parole officers inspected the proposed residence on two different occasions and found it suitable, the respondent William McCartney, the Suffolk County Bureau Chief of DOCCS, denied approval of the Telford home as the petitioner’s postrelease residence, citing concerns about the safety of the petitioner and his family, as well as the community and parole officers, which arose from unspecified community opposition.The petitioner commenced this CPLR article 78 proceeding to review the determination denying approval of the Telford home as his postrelease residence. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.“Pursuant to Executive Law §259-c(2) and 9 NYCRR 8003.3, special conditions may be imposed upon a parolee’s right to release. The courts routinely uphold these conditions as long as they are rationally related to the inmate’s past conduct and future chance of recidivism. Acceptable parole restrictions have included geographical restrictions and restrictions requiring that parolees refrain from contact with certain individuals or classes of individuals” (Matter of Williams v. Department of Corr. & Community Supervision, 136 AD3d 147, 159; see e.g. Matter of Boss v. New York State Div. of Parole, 89 AD3d 1265, 1266; Matter of Moller v. Dennison, 47 AD3d 818, 819; Matter of Gerena v. Rodriguez, 192 AD2d 606, 606-607).Under the circumstances of this case, speculation by DOCCS about possible community efforts to exclude the petitioner from otherwise suitable housing and about the petitioner’s potential response to such efforts is not a rational basis for denial of otherwise suitable housing (see e.g. Matter of Brown v. Commissioner of N.Y. State Dept. of Correctional Servs., 70 AD2d 1039; People ex rel. Howland v. Henderson, 54 AD2d 614; Matter of Ebbs v. Regan, 54 AD2d 611; see also People v. Diack, 24 NY3d 674, 677). As the respondents have articulated no other basis for denying approval of the proposed residence, the respondents’ refusal to approve the Telford home as a suitable postrelease residence was arbitrary and capricious, as the determination bears no rational relation to the petitioner’s past conduct or likelihood that he will re-offend (see Matter of Murphy v. New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 652; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231).Accordingly, we grant the petition to the extent of annulling the determination denying approval of the Telford home as the petitioner’s postrelease residence and remit the matter to DOCCS for a new determination consistent herewith.MASTRO, J.P., BALKIN, SGROI and DUFFY, JJ., concur.By Leventhal, J.P.; Hall, Hinds-Radix and Lasalle, JJ.PEOPLE, etc., res, v. Gary Jones, ap — (Ind. No. 1536/11)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 May 11, 2016 (People v. Jones, 139 AD3d 880), affirming a judgment of the Supreme Court, Queens County, rendered April 25, 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., HALL, HINDS-RADIX and LASALLE, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.Gary Liang, as asignee of Yeechiu Chung Liang, individually and as a shareholder of EW Studio, Inc., res, v. Yi Jing Tan def; Wei Ji, nonparty-ap — (Index No. 7424/08)Wei Ji, New York, NY, nonparty-appellant pro se.Wang Law Office, PLLC, Flushing, NY (Chunyu Jean Wang of counsel), for respondent.In an action, inter alia, to recover damages for conversion and fraud, nonparty Wei Ji appeals from an order of the Supreme Court, Queens County (Grays, J.), dated March 24, 2015, which denied her motion to “reargue and reconsider” the plaintiff’s application to impose a sanction against her in the amount of $3,255.Motion by the plaintiff, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated February 11, 2016, that branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order denying reargument was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it isORDERED that the branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order denying reargument is granted; and it is further,ORDERED that the appeal is dismissed, with costs.The motion of nonparty Wei Ji, denominated as one to “reargue and reconsider” the plaintiff’s application to impose a sanction against her in the amount of $3,255, was, in actuality, a motion for reargument. As the denial of a motion for reargument is not appealable (see George v. Yoma Dev. Group, Inc., 83 AD3d 776; Coccia v. Liotti, 70 AD3d 747, 759; Tokio Mar. & Fire Ins. Co., Ltd. v. Borgia, 11 AD3d 603), the appeal must be dismissed (see George v. Yoma Dev. Group, Inc., 83 AD3d 776; Fahey v. County of Nassau, 111 AD2d 214). The appellant’s contention that the motion should be treated as one to renew or vacate is not properly before us, as it is raised for the first time in her reply brief on appeal (see Barone v. 1116 Ave. H Realty, LLC, 151 AD3d 928, 929; Matter of Lemma v. Nassau County Police Officer Indem. Bd., 147 AD3d 760, 763).ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.MATTER of Dennis B. (Anonymous), ap, v. Edwanai B. (Anonymous), res — (Docket No. F-10150-11)Appeal by the father from an order of the Family Court, Kings County (Maria Arias, J.), dated August 18, 2016. The order, after a hearing, in effect, dismissed the father’s petition to vacate his acknowledgment of paternity of the subject child.ORDERED that the order is affirmed, without costs or disbursements.On June 20, 2009, 10 days after the birth of the subject child, the father signed an acknowledgment of paternity (hereinafter AOP). More than two years later, after the parties separated and agreed that the mother should have custody of the child, and a Support Magistrate directed that the father pay child support, the father filed a petition to vacate the AOP. By order dated August 18, 2016, the Family Court, in effect, dismissed the petition. The father appeals.A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act §516-a[b][iv]). Under the circumstances of this case, the Family Court’s determination that the father failed to prove that the AOP was signed by reason of fraud, duress, or material mistake of fact is supported by the record. Further, contrary to the father’s contention, the AOP form was valid.In light of our determination, we need not reach the father’s remaining contention.LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.MATTER of Luetricia Sellers, ap, v. Cornell Brown, res — (Docket No. V-21746-15)Mark Diamond, New York, NY, for appellant.Tammi D. Pere, West Hempstead, NY, for respondent.Milana Shimanova, PLLC, Great Neck, NY, attorney for the child.Appeal by the maternal grandmother from an order of the Family Court, Queens County (Ashley Black, Ct. Atty. Ref.), dated October 6, 2016. The order, after a hearing, dismissed her petition for custody of the subject child based on lack of standing.ORDERED that the order is affirmed, without costs or disbursements.In this custody proceeding, the subject child lived with his mother and maternal grandmother from the time of his birth until the mother died on August 24, 2015. At the time of the mother’s death, she was engaged to be married to the child’s father. In November 2015, the grandmother filed a petition for custody of the child. The Family Court held a hearing to determine if extraordinary circumstances existed to confer standing upon the grandmother. After the hearing, the court dismissed the petition based on lack of standing, finding that the grandmother had failed to establish the existence of extraordinary circumstances. The grandmother appeals.Contrary to the grandmother’s contention, the Family Court did not apply the wrong standard, and the fact that the child’s mother was deceased did not constitute a “per se” extraordinary circumstance under Domestic Relations Law §72 to give her standing to seek custody. Domestic Relations Law §72(1) gives a grandparent standing to seek visitation when one or both of the parents are deceased, but does not apply to cases in which the grandparent seeks custody.Pursuant to Domestic Relations Law §72(2)(a), a grandparent may commence a proceeding for custody of his or her grandchild based upon the existence of extraordinary circumstances. However, “‘[i]n a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances’” (Matter of Maddox v. Maddox, 141 AD3d 529, 529, quoting Matter of Bailey v. Carr, 125 AD3d 853, 853; see Matter of Suarez v. Williams, 26 NY3d 440, 446; Matter of Bennett v. Jeffreys, 40 NY2d 543, 546-548; Matter of Jamison v. Britton, 141 AD3d 522, 524). The nonparent bears the burden of proving the existence of extraordinary circumstances in order to establish his or her standing to seek custody of the subject child against a parent (see Matter of Suarez v. Williams, 26 NY3d at 448; Matter of Maddox v. Maddox, 141 AD3d at 529; Matter of Jamison v. Britton, 141 AD3d at 524; Matter of Santiago v. Henderson, 122 AD3d 866, 867). In the absence of a showing of extraordinary circumstances, no inquiry into the best interests of the child is triggered (see Matter of Bennett v. Jeffreys, 40 NY2d at 548; Matter of Maddox v. Maddox, 141 AD3d at 529; Matter of Jamison v. Britton, 141 AD3d at 524; Matter of Bailey v. Carr, 125 AD3d at 853; Matter of Santiago v. Henderson, 122 AD3d at 867).Contrary to the grandmother’s contention, she failed to establish extraordinary circumstances pursuant to Domestic Relations Law §72(2) based on an extended disruption of custody (see Matter of Tolbert v. Scott, 42 AD3d 548, 548-549; cf. Matter of DiBenedetto v. DiBenedetto, 108 AD3d 531, 532). An extended disruption of custody includes a prolonged separation between a parent and a child for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of a grandparent (see Domestic Relations Law §72[2][b]). Here, the grandmother failed to show that the father voluntarily relinquished care and control of the child (see Matter of Tolbert v. Scott, 42 AD3d 548). The evidence established that, at all times, the father visited with the child, provided financial support from when the child was born, and was mentally and physically fit. Although the child lived with the mother and the grandmother from the time the child was born in December 2012, the grandmother did not become the child’s caregiver and custodian until the mother died in August 2015. Therefore, when she petitioned for custody, she had only been the child’s custodian for three months, not for almost three years as she claimed. Although Domestic Relations Law §72(2)(b) allows the court to find that extraordinary circumstances exist where a prolonged separation between a parent and a child lasts for less than 24 months, here, the evidence established that the father sought to take custody of the child after the mother died, and the grandmother refused to release the child. In addition, the Family Court directed that the child stay with the grandmother pending the outcome of the hearing. Moreover, the father testified that because he and the mother were engaged to be married, he did not petition for custody prior to the mother’s death.Furthermore, while there is no doubt that the child bonded with the grandmother, the grandmother failed to show that separating the child from either her or the child’s sibling would threaten the child’s well being (see Matter of Bennett v. Jeffreys, 40 NY2d at 550). A parent cannot be displaced merely because the child has bonded psychologically with a nonparent (see Matter of Bailey v. Carr, 125 AD3d at 854; Matter of Jody H. v. Lynn M., 43 AD3d 1318, 1319; Matter of Esposito v. Shannon, 32 AD3d 471, 473).In addition, contrary to the contention of the attorney for the child, the Family Court providently exercised its discretion in declining to direct forensic evaluations, since the court had sufficient information to enable it to render its extraordinary circumstances determination without forensic reports (see Matter of Bailey v. Carr, 125 AD3d at 854; Matter of Solovay v. Solovay, 94 AD3d 898, 900; Matter of Rhodie v. Nathan, 67 AD3d 687, 688).Accordingly, the Family Court’s determination that the grandmother failed to establish extraordinary circumstances conferring standing to seek custody of the child was supported by a sound and substantial basis in the record and will not be disturbed (see Matter of Bailey v. Carr, 125 AD3d at 853).DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.PEOPLE, etc., res, v. Jarian Adams, ap — (Ind. No. 276/04)Seymour W. James, Jr., New York, NY (David Crow of counsel), for appellant.Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated December 15, 2014, which denied his motion to be resentenced pursuant to CPL 440.46 on his conviction of criminal possession of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on September 14, 2005.ORDERED that the order is affirmed.The Supreme Court did not improvidently exercise its discretion in denying the defendant’s motion to be resentenced pursuant to CPL 440.46. The defendant has an extensive criminal history, as well as a pattern of repeatedly violating parole (see People v. Perez, 127 AD3d 884; People v. John, 120 AD3d 591; People v. George, 118 AD3d 1019). Further, his prison disciplinary record indicates four Tier II violations. Moreover, and significantly, the defendant has had recent convictions for robbery and aggravated assault in New Jersey. Accordingly, substantial justice dictated that the defendant’s motion be denied (see People v. John, 120 AD3d at 591; People v. George, 118 AD3d at 1019-1020; People v. Vidal, 111 AD3d 967, 968).BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.Angela Pipinias, plf-res, v. Ruth Ferreira, def-res, Crown Petroleum Transportation, LLC ap — (Index No. 13589/12)In an action to recover damages for personal injuries, the defendants Crown Petroleum Transportation, LLC, and Rubian Kumar appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated April 29, 2015, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.ORDERED that the order is reversed, on the law, with one bill of costs, and the appellants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.On September 9, 2010, Ruth Ferreira was driving her vehicle northbound on Francis Lewis Boulevard near 47th Avenue in Queens. Ferreira moved from the left northbound lane into the right northbound lane in front of a tractor-trailer, after which she lost control of her vehicle and drove into a gas station adjacent to the right northbound lane, and crashed into a gas pump, allegedly injuring the plaintiff. The plaintiff commenced this action against Crown Petroleum Transportation, LLC (hereinafter Crown), and Rubian Kumar, as owner and operator of the tractor-trailer, respectively, and Ferreira.After discovery, Crown and Kumar (hereinafter together the appellants) moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, asserting that Ferreira was negligent as a matter of law and that her negligence was the sole proximate cause of the accident. In his deposition testimony, submitted in support of the motion, Kumar stated that he first saw Ferreira’s vehicle when it was 10 to 15 feet in front of his tractor-trailer. Kumar applied his brakes hard, but his tractor-trailer did not come to an immediate stop and continued into the intersection. In his affidavit in support of the motion, Kumar averred that there was no contact between the tractor-trailer and Ferreira’s vehicle; nevertheless, Ferreira lost control of her vehicle and crashed into a gas pump at the gas station.The appellants also submitted an affidavit executed by Ferreira, in which she stated that she was driving northbound in the left lane of travel on Francis Lewis Boulevard when she attempted to make a right turn in front of a slow-moving tractor-trailer in the right lane. In Ferreira’s deposition testimony, submitted by the appellants, she testified that traffic was light, and initially no vehicles were in front of her. However, when she was approximately three car lengths away from the intersection with 47th Avenue, she observed the tractor-trailer in the right northbound lane, traveling alongside her vehicle. In order to reach the gas station adjacent to the right northbound lane, she activated her right-turn signal, accelerated, and merged into the right lane. However, the tractor-trailer struck the rear passenger side of her vehicle while her vehicle was still accelerating. As a result of the impact, she lost control of her vehicle and hit a gas pump at the gas station. Ferreira testified that her vehicle was totally destroyed by the impact between the front of her vehicle and the gas pump. There was also a “little bump” at the rear passenger side from the impact with the tractor-trailer. She stated that she thought it was safe to make the right turn because the tractor-trailer was moving slowly—only approximately 10 miles per hour or less—and “I had the room to do it.”The Supreme Court denied the appellants’ motion.Ferreira’s testimony indicated that she violated Vehicle and Traffic Law §1128(a), which states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Therefore, she was negligent as a matter of law (see Davis v. Turner, 132 AD3d 603; Burghardt v. Cmaylo, 40 AD3d 568). The appellants further established that Kumar was not negligent, since he took prompt evasive action by applying his brakes hard.Thus, by demonstrating that Ferreira was negligent and that her negligence was the sole proximate cause of the accident, the appellants established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff and Ferreira failed to raise a triable issue of fact. Accordingly, the appellants’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been granted.DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Roman, Hinds-Radix and Barros, JJ.PEOPLE, etc., res, v. Delroy Francis, ap — (Ind. No. 1834/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered June 10, 2013, convicting him of attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), attempted robbery in the first degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the Supreme Court properly denied his Batson challenge (see Batson v. Kentucky, 476 US 79) to the prosecutor’s exercise of a peremptory challenge to exclude prospective juror number 14, a black female venireperson. New York courts apply the three-step test of Batson to determine whether a party has used its peremptory challenges in a racially discriminatory manner (see People v. Smocum, 99 NY2d 418, 421-422; People v. Jones, 139 AD3d 878, 879; People v. Fabregas, 130 AD3d 939, 940). ”‘The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges; the second step shifts the burden to the nonmoving party to provide race-neutral reasons for each juror being challenged; and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination’” (People v. Jones, 139 AD3d at 879, quoting People v. Carillo, 9 AD3d 333, 334; see People v. Smocum, 99 NY2d at 421-422). The “third-step inquiry is a ‘pure issue of fact,’ and the trial court’s determination whether a proffered race-neutral reason is pretextual is accorded ‘great deference’ on appeal” (People v. Hecker, 15 NY3d 625, 656, quoting Miller-El v. Cockrell, 537 US 322, 339-340).Here, during the second round of jury selection, defense counsel suggested that the prosecutor had exercised peremptory challenges in a discriminatory manner with respect to prospective juror numbers 4 and 14, both of whom were black females. After providing a race-neutral explanation with respect to prospective juror number 4, the prosecutor stated that he “never had an opportunity to speak with [prospective juror number 14]” and that he thought “ she answered one question between both attorneys.” The prosecutor indicated that, therefore, he did “not have enough information about [the prospective juror] to feel comfortable in sitting her as a juror,” and that “[a]s a general practice,” he would only “sit jurors that [he] had an opportunity to speak with.”The record reflects that the prosecutor’s strategy was not to avoid or ignore a particular class of prospective jurors based on race but to remove jurors whom he did not have time to address (see People v. Hecker, 15 NY3d at 658; People v. Richie, 217 AD2d 84, 89; cf. People v. Padgett, 303 AD2d 524). Indeed, the record indicates that the parties were operating under significant time constraints during voir dire. At the beginning of jury selection, the Supreme Court informed the prospective jurors that the attorneys had “a limited amount of time” to address them. During the first round of voir dire, in response to defense counsel’s inquiry as to how much time she had remaining, the court responded, “[o]ne minute.” Defense counsel herself acknowledged the time constraints, at one point advising the panelists that she only had a “few seconds… left,” and at another point stating that her “time is short.” During the second round, defense counsel, while providing an explanation for her use of peremptory challenges, stated that she “didn’t have a chance to speak to [the prospective jurors] for a long time or get a lot of information from them.” Further, during the third round, defense counsel stated, “I want to make the record very clear. This is round 3. We have five minutes.”Under the circumstances of this case, the prosecutor’s challenge based on his lack of sufficient information about the prospective juror cannot be construed to be rooted in racial animosity but rather a rationale with some basis in accepted trial strategy (see People v. Hecker, 15 NY3d at 658). Moreover, “[w]hile the sufficiency of the prima facie case showing becomes moot once a party states its race-neutral reasons for lodging a peremptory strike (see People v. Smocum, 99 NY2d at 422)… the strength or paucity of the step one showing is a factor that should be considered in determining whether the record as a whole supports a finding of pretext” (People v. Hecker, 15 NY3d at 660). Here, defense counsel noted only that “both [prospective] Jurors No. 4 and 14 are female blacks.” ”[P]urely numerical or statistical arguments are ‘rarely conclusive in the absence of other facts or circumstances’ to give rise to an inference of discrimination” (id. at 651, quoting People v. Brown, 97 NY2d 500, 507; see People v. Valdez-Cruz, 99 AD3d 738, 738-739; People v. Scott, 70 AD3d 977, 977). The Supreme Court’s determination that the challenge was not pretextual was based largely on its assessment of the prosecutor’s credibility, which is entitled to great deference on appeal (see Snyder v. Louisiana, 552 US 472, 477; Miller-El v. Cockrell, 537 US at 339; People v. Hernandez, 75 NY2d 350, 356, affd 500 US 352; People v. Norris, 98 AD3d 586, 586). Inasmuch as the court’s determination is supported by the record, it will not be disturbed (see People v. Norris, 98 AD3d at 586).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 murder 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, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt on that count 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).The defendant’s contention, raised in point 1(B) of his pro se supplemental brief, is without merit. The defendant’s remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review and, in any event, without merit.DILLON, J.P., ROMAN, HINDS-RADIX and BARROS, JJ., concur.By Rivera, J.P.; Hall, Miller and Duffy, JJ.MATTER of Equine Facility, LLC ap, v. John Pavacic res — (Index No. 1258/16)Richard I. Scheyer, Nesconset, NY (Fredric Stern of counsel), for appellants.Eric T. Schneiderman, Attorney General, New York, NY (Steven C. Wu and Ester Murdukhayeva of counsel), for respondents.In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Central Pine Barrens Joint Planning and Policy Commission dated October 21, 2015, adopting a resolution asserting its jurisdiction over the review of the proposed development of certain property located in the Town of Brookhaven, and action for a judgment declaring, among other things, that the proposed development was exempt from review by the Central Pine Barrens Joint Planning and Policy Commission, the petitioners/plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Pastoressa, J.), dated September 29, 2016, which granted the motion of the respondents/defendants to dismiss the proceeding/action as premature and dismissed the proceeding/action.ORDERED that the order and judgment is affirmed, with costs.The individual petitioners/plaintiffs are the shareholders of the petitioner/plaintiff Equine Facility, LLC, which owns a parcel of real property located in Suffolk County. The property, which consisted of 34.24 acres located “in the Central Pine[] Barrens Core, Town of Brookhaven,” was used as a horse farm. The petitioners/plaintiffs (hereinafter the petitioners) sought to close the horse farm and subdivide the property to construct 34 residential units on it.The petitioners requested a determination from the Central Pine Barrens Joint Planning and Policy Commission (hereinafter the Planning Commission) that the proposed subdivision was not subject to its jurisdiction because the proposed use did not constitute “development” within the meaning of the Long Island Pine Barrens Protection Act of 1993 (L 1993, ch 262 [hereinafter the Act]). At a subsequent meeting, the Planning Commission adopted a resolution finding that the proposed project did constitute “development” and that the proposed project was therefore subject to its jurisdiction. The Planning Commission determined that the petitioners would have to submit a hardship waiver application in order to receive approval for the proposed subdivision project.The petitioners did not submit a hardship waiver application. Instead, they commenced this hybrid proceeding and action (hereinafter the proceeding) to challenge the Planning Commission’s determination that the proposed subdivision constituted “development” within the meaning of the Act. The respondents/defendants (hereinafter the respondents) moved to dismiss the proceeding as premature. In the order and judgment appealed from, the Supreme Court granted the respondents’ motion and dismissed the proceeding.To determine whether a matter is ripe for judicial review, it is necessary “‘first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied’” (Church of St. Paul & St. Andrew v. Barwick, 67 NY2d 510, 519, quoting Toilet Goods Assn., Inc. v. Gardner, 387 US 158, 162). ”The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the ‘decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury’” (Church of St. Paul & St. Andrew v. Barwick, 67 NY2d at 519, quoting Williamson County Regional Planning Comm’n. v. Hamilton Bank of Johnson City, 473 US 172, 193).“If the anticipated harm is insignificant, remote or contingent the controversy is not ripe” (Church of St. Paul & St. Andrew v. Barwick, 67 NY2d at 520 [internal citation omitted]). ”A fortiori, the controversy cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” (id.). This Court has previously stated, under similar circumstances, that “mere participation in an ongoing administrative process is not, in and of itself, an actual concrete injury” (Matter of Town of Riverhead v. Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d 679, 681; see Matter of Ranco Sand & Stone Corp. v. Vecchio, 27 NY3d 92, 100).Here, the Planning Commission’s initial finding that the proposed subdivision constituted “development” within the meaning of the Act (see Environmental Conservation Law §57-0107[13]; see also Central Pine Barrens Comprehensive Land Use Plan §4.3.5) did not constitute a final determination prohibiting the petitioners from subdividing the property in accordance with their proposal. As the Planning Commission’s determination indicated, the petitioners may still obtain a hardship exemption, which would render the proposed residential use of the property authorized (see Central Pine Barrens Comprehensive Land Use Plan §5.2). Since the petitioners failed to adequately allege that they suffered an actual concrete injury, the Supreme Court properly granted the respondents’ motion to dismiss the proceeding as premature (see Matter of Town of Riverhead v. Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d at 681-682; see also Matter of Ranco Sand & Stone Corp. v. Vecchio, 27 NY3d at 100; Church of St. Paul & St. Andrew v. Barwick, 67 NY2d at 514, 521-522; Matter of Cold Spring Harbor Area Civic Assn. v. Suffolk County Dept. of Health Servs., 305 AD2d 499, 500).RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.Kio Seob Kim, ap, v. Malwon, LLC, res — (Index No. 707050/14)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered August 15, 2016, as granted that branch of the defendant’s motion which was for leave to renew its opposition to her prior motion for leave to enter a default judgment on the issue of liability against it upon its failure to appear or answer the complaint and its prior cross motion for leave to serve a late answer, which had been determined in a prior order of the same court entered March 18, 2016, and, upon renewal, vacated the order entered March 18, 2016, and thereupon, denied her motion for leave to enter a default judgment on the issue of liability against the defendant and granted the defendant’s cross motion for leave to serve a late answer.ORDERED that the order entered August 15, 2016, is reversed insofar as appealed from, on the law, with costs, that branch of the defendant’s motion which was for leave to renew its opposition to the plaintiff’s prior motion for leave to enter a default judgment on the issue of liability against the defendant and its prior cross motion for leave to serve a late answer is denied, and the order entered March 18, 2016, is reinstated.On February 20, 2014, the plaintiff allegedly was injured when she slipped and fell in a building owned by the defendant. On September 30, 2014, the plaintiff commenced this action to recover damages for personal injuries. On August 18, 2015, the plaintiff filed a motion for leave to enter a default judgment on the issue of liability against the defendant upon its failure to appear or answer the complaint. On November 5, 2015, the defendant filed a cross motion for leave to serve a late answer. In support of its cross motion, the defendant submitted an affidavit from its member. By order entered March 18, 2016, the Supreme Court granted the plaintiff’s motion for leave to enter a default judgment and denied the defendant’s cross motion for leave to serve a late answer.In April 2016, the defendant moved for leave to renew and reargue its opposition to the plaintiff’s prior motion and its prior cross motion. In support of that branch of its motion which was for leave to renew, the defendant submitted an additional affidavit from its member and an affidavit from the superintendent of the building where the plaintiff was injured. By order entered August 15, 2016, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was for leave to renew and, upon renewal, vacated the order entered March 18, 2016, and thereupon, denied the plaintiff’s prior motion for leave to enter a default judgment and granted the defendant’s prior cross motion for leave to serve a late answer. The plaintiff appeals.In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][3]; Fardin v. 61st Woodside Assoc., 125 AD3d 593, 595; Matter of O’Gorman v. O’Gorman, 122 AD3d 744; Singh v. Avis Rent A Car Sys., Inc., 119 AD3d 768, 771). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Fardin v. 61st Woodside Assoc., 125 AD3d at 595; Okumus v. Living Room Steak House, Inc., 112 AD3d 799, 800; Sobin v. Tylutki, 59 AD3d 701, 702). The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (see Zelouf Intl. Corp. v. Rivercity, LLC, 123 AD3d 1116; Sobin v. Tylutki, 59 AD3d at 702; Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437). Here, in support of that branch of its motion which was for leave to renew, the defendant submitted additional facts known to it at the time of the prior motion and cross motion without demonstrating a reasonable justification for failing to submit them on the earlier motion and cross motion (see Wells Fargo Bank v. Allen, 130 AD3d 717, 718; Sobin v. Tylutki, 59 AD3d at 702; Renna v. Gullo, 19 AD3d 472, 472). Thus, renewal should have been denied.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.Linda Santopetro, res, v. Devine Mercy R.C. Parish ap — (Index No. 12875/14)John L. Juliano, P.C., East Northport, NY, for respondent.In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Walker, J.), dated July 15, 2016, which denied their motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff allegedly fell as she was walking down an exterior staircase located on the defendants’ property. Thereafter, the plaintiff commenced this personal injury action against the defendants, alleging that the staircase was defective, among other things, because the first step down from the landing was shorter in height than the remaining steps. She also alleged that at the time of the accident, the short step was difficult to see and caused her to take a misstep and fall. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion.The owner of property has a duty to maintain the property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v. Miller, 40 NY2d 233, 241; Lee v. Acevedo, 152 AD3d 577, 578). ”[An] owner, however, has no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous” (Salomon v. Prainito, 52 AD3d 803, 805; see Cupo v. Karfunkel, 1 AD3d 48, 52). ”The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury” (Gordon v. Pitney Bowes Mgt. Servs., Inc., 94 AD3d 813, 814; see Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061, 1062).Here, the defendants failed to establish, prima facie, that they satisfied their common-law duty to maintain their premises in a reasonably safe condition and that the alleged difference in height of the first step down from the landing was open and obvious and not inherently dangerous (see generally Schwartz v. Reisman, 135 AD3d 739, 740; Stoppeli v. Yacenda, 78 AD3d 815; Shah v. Mercy Med. Ctr., 71 AD3d 1120; Swerdlow v. WSK Props. Corp., 5 AD3d 587). Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied their motion without regard to the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.Gary Liang, ap, v. Wei Ji res — (Index No. 703829/15)In an action pursuant to Judiciary Law §487 to recover treble damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Livote, J.), dated December 8, 2015, as granted that branch of the defendants’ motion which was for the imposition of a sanction in the amount of $160 against him, and, sua sponte, directed dismissal of the complaint on the ground that it violated a prior order of the same court (D. Hart, J.), dated September 19, 2012, issued in an action entitled Liang v. Yi Jing Tan, commenced in the Supreme Court, Queens County, under Index No. 8155/12, which enjoined the plaintiff from commencing any action related to a certain apartment without prior leave of court.ORDERED that, on the Court’s own motion, the notice of appeal from so much of the order dated December 8, 2015, 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 dated December 8, 2015, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendant.The plaintiff commenced this action alleging, inter alia, that the defendants violated Judiciary Law §487 by engaging in fraud and misrepresentation related to the sale of an apartment. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint and pursuant to NYCRR 130-1.1 for the imposition of a sanction in the amount of $160 against the plaintiff. The Supreme Court, inter alia, granted that branch of the motion which was for a sanction and, sua sponte, directed dismissal of the complaint on the ground that it violated a prior order dated September 19, 2012, issued in an action entitled Liang v. Yi Jing Tan, commenced in the Supreme Court, Queens County, under Index No. 8155/12, which enjoined the plaintiff from commencing any action related to that apartment without prior leave of court. The plaintiff appeals.Contrary to the plaintiff’s contention, the Supreme Court properly directed dismissal of the complaint on the ground that the plaintiff commenced this action in violation of the order dated September 19, 2012. Public policy generally mandates free access to the courts (see Vogelgesang v. Vogelgesang, 71 AD3d 1132, 1134; Sassower v. Signorelli, 99 AD2d 358, 359). However, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will (see Duffy v. Holt-Harris, 260 AD2d 595; Matter of Shreve v. Shreve, 229 AD2d 1005). Here, there was ample basis to support the court’s determination to dismiss this action and prevent the plaintiff from engaging in further vexatious litigation.The plaintiff’s contention that he was not given an opportunity to be heard on that branch of the defendants’ motion which was for the imposition of a sanction is without merit. Under 22 NYCRR 130-1.1(d), “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.” Here, the defendants moved to dismiss the complaint and also for imposition of a sanction. The plaintiff was given notice of the motion, and he had a reasonable opportunity to be heard in opposition thereto (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 NY2d 411, 413; Duncan v. Popoli, 105 AD3d 803, 804-805).Moreover, we reject the plaintiff’s contention that the order directing the imposition of a sanction against him failed to comply with 22 NYCRR 130-1.2. That rule provides that “[t]he court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate.” Courts have not held that the procedural dictates of 22 NYCRR 130-1.2 must be followed “in any rigid fashion” (Duncan v. Popoli, 105 AD3d at 804-805; see Saleh v. Hochberg, 5 AD3d 234, 234). Here, in the order appealed from, the Supreme Court discussed the reasons why it was directing dismissal of the complaint. It then cited 22 NYCRR 130-1.1(a), and stated that the branch of the motion which was for the imposition of a sanction in the amount of $160 was granted. It is clear from the context of the order that the court found the plaintiff’s conduct to be frivolous for the same reasons it gave for directing dismissal of the complaint. Accordingly, the order did not fail to comply with the requirements of 22 NYCRR 130-1.2.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Rivera, J.P.; Chambers, Duffy and Iannacci, JJ.MATTER of New York & Atlantic Railway Company pet-res, v. Town of Babylon res, Pinelawn Cemetery, ap — (Index No. 692/10)Appeal by Pinelawn Cemetery from a judgment of the Supreme Court, Suffolk County (Daniel Martin, J.), dated September 15, 2015. The judgment, upon an order of that court dated July 14, 2015, granted the petition filed pursuant to CPLR article 78, and annulled a determination of the Town of Babylon Board of Zoning Appeals dated April 22, 2005.Motion by the petitioners to dismiss the appeal. By decision and order on motion of this Court dated August 18, 2017, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the motion to dismiss the appeal is granted; and it is further,ORDERED that the appeal is dismissed, without costs or disbursements.The petitioners, who are the sublessees and lessee of certain real property owned by Pinelawn Cemetery (hereinafter Pinelawn), commenced this proceeding pursuant to CPLR article 78 seeking, inter alia, to annul a determination of the Town of Babylon Board of Zoning Appeals (hereinafter the BZA) upholding a stop work order issued by a building inspector of the Town of Babylon. The Supreme Court granted the petition. Pinelawn appealed, and the Town and the BZA separately appealed.During the pendency of the appeals, the petitioners entered into a settlement agreement with the Town and the BZA pursuant to which the BZA’s determination and the stop work order were vacated, and the Town and the BZA agreed to withdraw their appeal. By order of this Court dated June 2, 2017, the appeal by the Town and the BZA was marked withdrawn on stipulation. Consequently, Pinelawn’s appeal must be dismissed as academic, because a determination of the issues regarding the validity of the stop work order will not directly affect the rights of the parties and the issues raised do not warrant an exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715).RIVERA, J.P., CHAMBERS, DUFFY and IANNACCI, JJ., concur.By Rivera, J.P.; Chambers, Duffy and Iannacci, JJ.Pinelawn Cemetery, res, v. Metropolitan Transportation Authority defendants/ counterclaim plaintiffs-appellants-res, New York and Atlantic Railway, defendant-appellant- res; Town of Babylon, counterclaim defendant- res-res — (Index No. 4452/09)Mark A. Cuthbertson, Huntington, NY (Kerri K. Beatty of counsel), for respondent.Separate appeals and a cross appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Daniel Martin, J.), dated September 8, 2014. The order and judgment, insofar as appealed from, upon an order of that court dated March 4, 2013, granted that branch of the motion of the Town of Babylon which was for summary judgment dismissing, as time-barred, so much of the counterclaim of the Metropolitan Transportation Authority and the Long Island Rail Road Company as sought a declaration that the subject property was tax exempt for tax years 2007/2008, 2008/2009, and 2009/2010 and granted that branch of the motion of Pinelawn Cemetery which was for summary judgment on so much of its breach of contract cause of action asserted against the Metropolitan Transportation Authority and the Long Island Rail Road Company as sought payment of the real property taxes assessed against the subject property by the Town of Babylon for the tax years 2007/2008, 2008/2009, and 2009/2010. The order and judgment, insofar as cross-appealed from, upon the order dated March 4, 2013, denied that branch of the motion of the Town of Babylon which was for summary judgment dismissing so much of the counterclaim of the Metropolitan Transportation Authority and the Long Island Rail Road Company as sought a declaration that the subject property was tax exempt commencing with the tax year 2010/2011 and, upon searching the record, awarded summary judgment to the Metropolitan Transportation Authority and the Long Island Rail Road Company on that portion of their counterclaim, and declared that the subject property was tax exempt commencing with the tax year 2010/2011.ORDERED that the appeal by the New York and Atlantic Railway is dismissed, as that party is not aggrieved by the order and judgment appealed from (see CPLR 5511); and it is further,ORDERED that the order and judgment is affirmed insofar as appealed from by the Metropolitan Transportation Authority and the Long Island Rail Road Company and insofar as cross-appealed from; and it is further,ORDERED that one bill of costs is awarded to Pinelawn Cemetery payable by the Metropolitan Transportation Authority and the Long Island Rail Road Company.Pinelawn Cemetery (hereinafter Pinelawn) owns two parcels of real property which were each separately leased by the Long Island Rail Road Company (hereinafter the LIRR), a subsidiary of the Metropolitan Transportation Authority (hereinafter the MTA). The LIRR constructed two railroad tracks on the two parcels (hereinafter the subject property). The leases, entered into in 1904 and 1905, permitted the LIRR to lease the parcels for a term of 99 years, with an option to renew each lease for a second term of 99 years. Both leases apparently have been renewed. Under the terms of both leases, the LIRR agreed to pay all taxes assessed against the subject property. In 1996, the LIRR transferred its freight operations, including its use of the subject property, to Southern Empire State Railroad Company, the predecessor in interest to the New York and Atlantic Railway (hereinafter NYAR). In 2002, the NYAR subleased the subject property to Coastal Distribution, LLC (hereinafter Coastal), which uses the site as a transloading facility to transfer freight between railroad cars and trucks.Prior to 2007, the Town of Babylon considered the subject property to be exempt from real property taxes pursuant to Public Authorities Law §1275. However, in 2007, the Town placed the subject property on the taxable section of the Town’s assessment roll beginning with tax years 2007/2008 and subsequent years, and issued tax bills to Pinelawn for the subject property. Pinelawn made written demands to the MTA and the LIRR for payment of those tax bills, which it maintains they were obligated to pay pursuant to the terms of the leases. After the MTA and the LIRR failed to remit any payments, Pinelawn commenced this action against the MTA and the LIRR (hereinafter together the MTA parties), among others. In the second amended complaint, Pinelawn asserted three causes of action seeking, inter alia, damages for breach of contract for the MTA parties’ failure to pay the property taxes assessed on the subject property in accordance with the terms of the leases and a judgment declaring that the MTA parties were obligated to pay the property taxes assessed on the subject property. The MTA parties asserted a counterclaim against Pinelawn and the Town seeking a judgment declaring that the Town had no authority to assess taxes upon the subject property and that the subject property was exempt from taxation pursuant to Public Authorities Law §1275. Subsequently, Pinelawn moved for summary judgment on the complaint and the Town separately moved for summary judgment dismissing the MTA parties’ counterclaim insofar as asserted against it.In an order dated March 4, 2013, the Supreme Court granted that branch of the Town’s motion which was for summary judgment dismissing so much of the MTA parties’ counterclaim as related to tax years 2007/2008, 2008/2009, and 2009/2010 as time-barred. The court also granted that branch of Pinelawn’s motion which was for summary judgment on so much of its breach of contract cause of action asserted against the MTA parties as sought payment of the real property taxes assessed against the subject property for the tax years 2007/2008, 2008/2009, and 2009/2010. Additionally, the court denied that branch of the Town’s motion which was for summary judgment dismissing so much of the MTA parties’ counterclaim as sought a declaration that the subject property was tax exempt pursuant to Public Authorities Law §1275 commencing with the tax year 2010/2011, and, upon searching the record, awarded summary judgment to the MTA parties on that portion of their counterclaim. An order and judgment dated September 8, 2014, was entered upon the order, inter alia, declaring that the subject property was tax exempt commencing with the tax year 2010/2011. The MTA parties appeal and the Town cross-appeals from the order and judgment.Contrary to the MTA parties’ contentions, the Supreme Court properly determined that their counterclaim challenging the Town’s withdrawal of a previously afforded tax exemption under Public Authorities Law §1275 was subject to the four-month statute of limitations applicable to proceedings pursuant to CPLR article 78 (see CPLR 217; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v. Town of Fallsburg, 78 NY2d 194, 204-205; Turtle Is. Trust v. County of Clinton, 125 AD3d 1245, 1246; Matter of New Jersey Trust Rail Operations v. County of Rockland, 187 AD2d 430). Further, it is undisputed that the MTA parties’ counterclaim was not interposed within the applicable four-month limitations period from the dates that the tax assessments for tax years 2007/2008, 2008/2009, and 2009/2010 became final. In opposition, the MTA parties failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Consequently, the Supreme Court properly granted that branch of the Town’s motion which was for summary judgment dismissing so much of the MTA parties’ counterclaim as related to tax years 2007/2008, 2008/2009, and 2009/2010 as time-barred (see Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v. Town of Fallsburg, 78 NY2d at 205; Matter of New Jersey Tr. Rail Operations v. County of Rockland, 187 AD2d at 431-432).The Supreme Court also properly granted that branch of Pinelawn’s motion which was for summary judgment on so much of its breach of contract cause of action asserted against the MTA parties as sought payment of the real property taxes assessed against the subject property for the tax years 2007/2008, 2008/2009, and 2009/2010. Pinelawn established its prima facie entitlement to judgment as a matter of law based upon the express terms of the 1904 and 1905 leases and the MTA parties’ failure to pay the taxes duly imposed by the Town upon the subject property for tax years 2007/2008, 2008/2009, and 2009/2010 (see South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 NY3d 272, 277; W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162; Trinity Church v. Higgins, 48 NY 532, 532). In opposition, the MTA parties failed to raise a triable issue of fact as to whether the taxes imposed for tax years 2007/2008, 2008/2009, and 2009/2010 were illegal and void since they failed to timely challenge the tax assessments for those tax years (see Alvarez v. Prospect Hosp., 68 NY2d at 324).The Supreme Court also correctly determined that the subject property, which is leased by the MTA parties and used for transportation purposes, is tax exempt under Public Authorities Law §1275 commencing with the tax year 2010/2011 (see Public Authorities Law §§1261, 1275; Metropolitan Transp. Auth. v. City of New York, 70 AD2d 551, 551). Accordingly, the Supreme Court properly denied the Town’s motion for summary judgment dismissing so much of the MTA parties’ counterclaim as sought a declaration that the subject property was tax exempt pursuant to Public Authorities Law §1275 commencing with the tax year 2010/2011 and, upon searching the record, awarded summary judgment to the MTA parties on that portion of their counterclaim, and declared that the subject property was tax exempt commencing with the tax year 2010/2011.RIVERA, J.P., CHAMBERS, DUFFY and IANNACCI, JJ., concur.By Mastro, J.P.; Hall, Austin and Sgroi, JJ.Maria Michalska, ap, v. Coney Island Site 1824 Houses, Inc. res — (Index No. 14022/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), entered July 14, 2016, which granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.On February 4, 2014, at 9:30 p.m., the plaintiff allegedly slipped and fell on ice on a sidewalk abutting premises located on West 29th Street in Brooklyn. The plaintiff commenced this action against the defendants, the owners and operators of the premises, to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.“The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so” (Bruzzo v. County of Nassau, 50 AD3d 720, 721; see Bleich v. Metropolitan Mgmt., LLC, 132 AD3d 933, 935; Forlenza v. Miglio, 130 AD3d 567, 568; Schron v. Jean’s Fine Wine & Spirits, Inc., 114 AD3d 659, 660). Section 7-210 of the Administrative Code of the City of New York imposes a nondelegable duty on a property owner, exclusive of one-, two-, and three-family owner-occupied homes, to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon those property owners for injuries resulting from a violation of the code provision (see Administrative Code of City of NY §7-210; Hsu v. City of New York, 145 AD3d 759; Zorin v. City of New York, 137 AD3d 1116, 1117). Pursuant to Administrative Code of the City of New York §7-210(b), “[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to… the negligent failure to remove… ice… from the sidewalk” (see Metzker v. City of New York, 139 AD3d 828; Weinberg v. 2345 Ocean Assoc., LLC, 108 AD3d 524, 524-525).“Administrative Code of the City of New York §7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable” (Kabir v. Budhu, 143 AD3d 772, 773; see Gyokchyan v. City of New York, 106 AD3d 780, 781; Martinez v. Khaimov, 74 AD3d 1031, 1033). A violation of Administrative Code of the City of New York §7-210, a municipal ordinance, is simply evidence of negligence (see Martinez v. Khaimov, 74 AD3d at 1033).Thus, to prevail on their motion for summary judgment, the defendants were required to establish that they neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Kabir v. Budhu, 143 AD3d at 773; Weinberg v. 2345 Ocean Assoc., LLC,108 AD3d at 524-525; Gyokchyan v. City of New York, 106 AD3d at 781; Martinez v. Khaimov, 74 AD3d at 1033). ”Further, even in the absence of a statute or ordinance specifically imposing tort liability upon a property owner for failing to remove snow and ice that naturally accumulates upon the abutting public sidewalk, the owner of the abutting property may be held liable where it undertook snow removal efforts which made the naturally occurring conditions more hazardous” (Martinez v. Khaimov, 74 AD3d at 1032-1033; see Bi Chan Lin v. Po Ying Yam, 62 AD3d 740, 741).Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law (see Martinez v. Khaimov, 74 AD3d at 1033). Their own submissions, which included, inter alia, the deposition testimony of the plaintiff and the defendants’ superintendent, in addition to a certified weather report for the month of February 2014, failed to eliminate all triable issues of fact as to the whether the defendants caused or exacerbated the alleged icy condition on the subject sidewalk or had notice of it. The plaintiff testified that, at the time of the accident, she slipped on ice on the path which had been shoveled through the snow on the sidewalk adjacent to her apartment building. She also testified that the path was slippery when she had used it the night before and that she did not observe any salt or sand on it. Although the building superintendent testified as to general snow removal procedures for the building, he could not remember what he did on the date of the accident and did not have an independent recollection of removing snow from the outside of the building at any time on either February 3, 2014, or February 4, 2014. His testimony conflicted with statements set forth in his affidavit, submitted in support of the motion, in which he stated that he personally checked the path at issue at the end of his shift at 5:00 p.m. on February 4, 2014, and did not observe any snowy and/or icy condition. Such contradictory statements raise an issue of credibility which cannot be resolved on a motion for summary judgment (see Bonaventura v. Galpin, 119 AD3d 625). Further, the certified weather report demonstrated that there was an accumulation of 6.7 inches of snow as of 5:00 p.m. on February 3, 2014, approximately 26 hours prior to the accident, and that no snow fell on the date of the accident. Consequently, the defendants did not establish, prima facie, that they neither created the alleged hazardous icy condition on the sidewalk nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Kabir v. Budhu, 143 AD3d at 773; Gyokchyan v. City of New York, 106 AD3d at 782).Since the defendants failed to meet their prima facie burden, it is unnecessary to consider the sufficiency of the plaintiff’s opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.MASTRO, J.P., HALL, AUSTIN and SGROI, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Brian Bernard, ap — (Ind. No. 562/14)Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered November 6, 2014, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The determination of a motion to withdraw a plea of guilty rests within the sound discretion of the County Court (see CPL 220.60[3]; People v. Alexander, 97 NY2d 482, 485; People v. Oden, 150 AD3d 1269, 1270). Here, the County Court providently exercised its discretion in denying the defendant’s pro se oral application, in effect, to withdraw his plea of guilty, which was made at the time of sentencing. The record establishes that the defendant’s plea was made knowingly, voluntarily, and intelligently (see People v. Tyrell, 22 NY3d 359, 365; People v. Haffiz, 19 NY3d 883, 885; People v. Bediako, 119 AD3d 598).Since the only substantive argument raised on the defendant’s appeal concerns the voluntariness of his plea, which claim survives a valid waiver of the right to appeal (see People v. Seaberg, 74 NY2d 1, 10), we need not reach the defendant’s contention that his appeal waiver was invalid.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Miller, Hinds-Radix and Duffy, JJ.Regency Homes Realty Group, Inc., res, v. Leo and Laura, LLC, ap — (Index No. 59605/14)In an action, inter alia, to recover a real estate brokerage commission, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Smith, J.), dated October 23, 2015, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court dated January 8, 2016, which, upon the order, is in favor of the plaintiff and against it in the total sum of $345,972.48.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is reversed, on the law, the plaintiff’s motion for summary judgment is denied, and the order is modified accordingly; and it is further,ORDERED that one bill of costs is awarded to the defendant.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).On October 24, 2013, the plaintiff, which is a licensed real estate brokerage firm, and the defendant entered into an exclusive listing agreement concerning the sale of the defendant’s property located in New Rochelle (hereinafter the property). The listing price was $5.5 million and the agreement provided for the payment of a 6 percent commission. Paragraph 4 of the listing agreement provided that the defendant would be obligated to pay a commission if, during the period of the agreement, the property was sold or transferred, the property was the subject of a contract of sale, or the defendant and a buyer reached a verbal agreement regarding the material terms of a sale.On November 9, 2013, a prospective buyer, who had been introduced to the defendant by the plaintiff’s broker, made an initial offer in the sum of $4,730,000. The defendant made a counter offer in the sum of $4,800,000. Thereafter, Ken Sato, as president of the prospective buyer, made an offer by email, stating “I am willing to meet him half way at $4.755 million.” The plaintiff’s representative, Rajeev Chennattu, forwarded that email to the defendant’s principal, Luigi Rudovic, with the notation “Please reply to this email by writing ‘I agree to accept’ and I will forward that to Ken.” Rudovic replied “I agree to accept and I will forward that to Ken.”The plaintiff then prepared a purchase memorandum dated November 19, 2013, which stated that a $200,000 deposit was due upon the signing the contract and the balance of $4,555,000 was due at the closing. The memorandum did not specify how the $4,555,000 was to be paid. The memorandum further stated that the contract was contingent upon satisfactory results of a phase 1 inspection.The plaintiff claims that in December 2013, Sato informed it of new terms, which were incorporated in a memorandum dated December 4, 2013. That memorandum stated that the purchase price was $4.8 million and that the contract deposit was $200,000. However, this memorandum specified how the remainder was to be paid: the prospective buyer would pay $4.5 million at the closing by cash or certified check, and the defendant would take back a second mortgage for $300,000 payable in five years, with interest at 4 percent. No inspection was mentioned. Since the memorandum provided for a payment of $200,000 plus a $300,000 mortgage plus $4.5 million, which added up to $5 million, those figures were incorrect.The defendant’s attorney prepared a contract pursuant to the December 4, 2013, memorandum. The contract corrected the amount to be paid at the closing to $4.3 million. However, a revised contract provided that the purchase price of $4.8 million would be paid by the $200,000 contract deposit and the assumption of an existing mortgage on the property in the sum of $4.6 million.In January 2014, the plaintiff, the defendant, and the buyer attended a meeting, at which the defendant refused to proceed with the sale. Rudovic claimed he refused to sign the revised contract because the existing mortgage on the property only amounted to approximately $1.6 million.In this action, the plaintiff seeks to recover a brokerage commission based upon the November 2013 sales price of $4,755,000, claiming that there was a verbal agreement, made in November 2013, regarding the material terms of the sale, evidenced by Rudovic’s email agreeing to the price of $4,755,000. The plaintiff moved for summary judgment on the complaint, submitting, inter alia, the original contract, which provided for a purchase price of $4.8 million payable by a contract deposit of $200,000, a purchase-money mortgage of $300,000, and payment by cash or certified check in the sum of $4.3 million.The defendant cross-moved for summary judgment dismissing the complaint. In support of its cross motion, the defendant contended that the purchase memorandum dated November 19, 2013, “didn’t matter” because, on December 4, 2013, there was a new purchase memorandum prepared by the plaintiff with a new price of $4.8 million, with an “onerous” requirement to take back a $300,000 purchase-money mortgage, which the defendant never agreed to do. Then, in late December, the revised contract of sale provided for a contract deposit of $200,000 and no further cash payment because the buyer was taking the property subject to a pre-existing mortgage which the contract stated amounted to $4.6 million but which, in fact, amounted to approximately $1.6 million.In the order appealed from, the Supreme Court granted the plaintiff’s motion for summary judgment, and denied the defendant’s cross motion for summary judgment, finding that the brokerage agreement “expressly provides for a third alternative condition resulting in a broker’s commission being due, i.e., where defendant had reached a verbal agreement with a buyer regarding the material terms of the sale during the Agreement’s period.” The defendant appeals.The brokerage agreement is clear and unambiguous that a commission was due if there was an oral agreement as to the material terms of the sale. The brokerage agreement should be enforced according to its terms (see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475; Greenfield v. Philles Records, 98 NY2d 562, 569). However, there are triable issues of fact as to whether there was ever an oral agreement as to the material terms of the sale. Those issues of fact are evident from the plaintiff’s own motion papers, which demonstrate that there were two tentative prices purportedly agreed to, one for $4,755,000 and one for $4,800,000. Therefore, the plaintiff failed to establish its entitlement to judgment as a matter of law. The defendant’s motion papers, which reveal major issues as to payment terms, confirm that there are triable issues of fact as to whether the defendant and the prospective buyer ever reached a meeting of the minds as to the proposed contract. The essential terms of a contract of sale include “the time and terms of payment” (Nesbitt v. Penalver, 40 AD3d 596, 598; see O’Brien v. West, 199 AD2d 369, 371).The defendant’s remaining contentions are either without merit or not properly before this Court.Accordingly, the Supreme Court properly denied the defendant’s cross motion for summary judgment, but should have also denied the plaintiff’s motion for summary judgment.CHAMBERS, J.P., MILLER, HINDS-RADIX and DUFFY, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.Gary Liang, as assignee of Yeechiu Chung Liang, individually and as a shareholder of EW Studio, Inc., res, v. Yi Jing Tan ap — (Appeal No. 1) Gary Liang, as assignee of Yeechiu Chung Liang, individually and as a shareholder of EW Studio, Inc., res, v. Yi Jing Tan def; Wei Ji, nonparty-ap — (Appeal No. 2) (Index No. 7424/08)Wang Law Office, PLLC, Flushing, NY (Jean Wang of counsel), for respondent.In an action, inter alia, to recover damages for conversion and breach of fiduciary duty, (1) the defendants appeal from an order of the Supreme Court, Queens County (Grays, J.), dated December 23, 2015, which denied their cross motion pursuant to 22 NYCRR 130-1.1 for an award of costs and counsel fees against the plaintiff and directed a hearing on the plaintiff’s motion to hold their attorney, nonparty Wei Ji, in civil contempt of court for her failure to pay counsel fees awarded to the plaintiff in an order of the same court dated August 12, 2014, and (2) nonparty Wei Ji appeals from an order of the same court dated April 25, 2016, which, after a hearing, in effect, granted the plaintiff’s motion to hold her in civil contempt and directed her to pay counsel fees in the amount of $2,000 as a result of her contempt.ORDERED that the appeal from so much of the order dated December 23, 2015, as directing a hearing on the plaintiff’s motion to hold the defendants’ attorney in civil contempt is dismissed, without costs or disbursements, as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion (see Serraro v. Staropoli, 94 AD3d 1083, 1084), and we decline to grant leave to appeal; and it is further,ORDERED that the order dated December 23, 2015, is affirmed insofar as reviewed, without costs or disbursements; and it is further,ORDERED that the order dated April 25, 2016, is reversed, on the law, without costs or disbursements, and the plaintiff’s motion to hold the defendants’ attorney in civil contempt is denied.The Supreme Court erred in granting, after a hearing, the plaintiff’s motion to hold the defendants’ attorney in civil contempt based upon her failure to pay counsel fees awarded to the plaintiff in an order dated August 12, 2014. Judiciary Law §753(A)(3) permits a court to punish a party for civil contempt “for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum.” This is not a case where, by law, execution cannot be awarded. Therefore, the remedy of contempt is unavailable (see 4504 New Utrecht Ave. Corp. v. Pita Parlor, 143 AD2d 171; see also Cantalupo Constr. Corp. v. 2319 Richmond Terrace Corp., 141 AD3d 626, 627-628; Moore v. Davidson, 57 AD3d 862).However, the Supreme Court providently exercised its discretion in denying the defendants’ cross motion for an award of costs and counsel fees against the plaintiff, as the defendants failed to establish that the plaintiff engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1(c) (see Agunloye Dev. Corp. v. Buckingham Owners, Inc., 132 AD3d 927, 928).In light of our determination, we need not address the parties’ remaining contentions.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.PEOPLE, res, v. Domingo Munoz, ap — Paul Skip Laisure, New York, NY (Denise A. Cors of counsel), for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Walker Halstad on the brief), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated September 21, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The Supreme Court properly denied the defendant’s request for a downward departure to a risk level two designation. A defendant seeking a downward departure from his or her presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence (see SORA: Risk Assessment Guidelines and Commentary [2006] [hereinafter Guidelines]; People v. Gillotti, 23 NY3d 841, 861; People v. Anderson, 151 AD3d 767; People v. Wyatt, 89 AD3d 112, 128).Although “advanced age” may constitute a basis for a downward departure (see Guidelines at 5), the defendant failed to demonstrate that his age at the time of the SORA hearing, 57 years old, would, in and of itself, reduce his risk of reoffense (see People v. Alvarez, 153 AD3d 645; People v. Garcia, 144 AD3d 650, 651; People v. Santiago, 137 AD3d 762, 764-765; People v. Shelton, 126 AD3d 959, 960). The remaining circumstances identified by the defendant at the hearing did not constitute appropriate mitigating factors because they did not tend to establish a lower likelihood of reoffense (see People v. Wyatt, 89 AD3d at 121). Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure and designated him a level three sex offender.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.JP Morgan Chase Bank, NA, res, v. Adventure Corp., appellant def — (Index No. 15093/07)Appeal from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered January 12, 2016. The order denied those branches of the motion of the defendant Adventure Corp. which were pursuant to CPLR 5015(a) and 317 to vacate an order entered January 27, 2014, and a judgment of foreclosure and sale entered September 16, 2015, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it.ORDERED that the order entered January 12, 2016, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and, thereafter, a new determination of those branches of the motion of the defendant Adventure Corp. which were pursuant to CPLR 5015(a) and 317 to vacate the order entered January 27, 2014, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it.In 2007, the plaintiff commenced this action against Adventure Corp. (hereinafter the defendant), among others, to foreclose a mortgage. The defendant failed to answer the complaint or appear in the action. Summary judgment on the complaint was thereafter awarded to the plaintiff, and a referee was appointed to compute the amount due under the mortgage loan, by order entered January 27, 2014. A judgment of foreclosure and sale was entered on September 16, 2015.The defendant subsequently moved, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the order entered January 27, 2014, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it. The Supreme Court denied the motion, and the defendant appeals.The Supreme Court improperly denied, without a hearing, the subject branches of the defendant’s motion. The defendant asserted that the plaintiff failed to properly serve it with process and that it did not receive notice of the action in time to defend it. ”Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service” (FV-1, Inc. v. Reid, 138 AD3d 922, 923; see Bank of America, N.A. v. Latif, 148 AD3d 967, 968). Here, however, questions of fact exist as to whether proper service was effected upon the Secretary of State as the defendant’s agent, pursuant to Business Corporation Law §306(b)(1). In particular, the process server’s affidavit was ambiguous as to whether “duplicate copies” of process were delivered to the Secretary of State as required by Business Corporation Law §306(b)(1). Under the circumstances, a hearing was required on the issue of whether the defendant was properly served with process.Accordingly, we reverse the order, and remit the matter to the Supreme Court, Nassau County, to conduct a hearing to determine whether service of process was properly effected upon the defendant, and for a new determination thereafter of those branches of the defendant’s motion which were pursuant to CPLR 5015(a) and 317 to vacate the order entered January 27, 2014, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it.DILLON, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.By Mastro, J.P.; Sgroi, Cohen and Maltese, JJ.Emil Chambliss, as administrator of the estate, goods, chattels, and credits of Amy Chambliss, deceased, and Emil Chambliss, individually, appellant-res, v. University Group Medical Associates res, Mark Joseph, etc. respondents- ap — (Index No. 3032/11)Appeal and cross appeal from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 13, 2014. The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were to reject a referee’s report dated September 23, 2013, made after a hearing to determine the validity of service of process, finding that service of process was not properly effected upon the defendant Mark Joseph, and for leave to enter a default judgment against that defendant, and granted the cross motion of the defendants Mark Joseph and South Island Medical Associates to confirm the referee’s report and to dismiss the complaint insofar as asserted against the defendant Mark Joseph pursuant to CPLR 3211(a)(8). The order, insofar as cross-appealed from, failed to recite that the action insofar as asserted against the defendant Mark Joseph is severed.ORDERED that the cross appeal by the defendants Mark Joseph and South Island Medical Associates is dismissed, as they are not aggrieved by the order cross-appealed from (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144, 156-157); and it is further,ORDERED that the order is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendants Mark Joseph and South Island Medical Associates.In this action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff attempted to effect service upon the defendant Mark Joseph pursuant to CPLR 308(2), by delivering the summons and complaint to an individual of suitable age and discretion at his actual place of business. After conducting a hearing to determine the validity of service of process upon Joseph, the referee issued a report dated September 23, 2013, finding that the plaintiff failed to establish that the address where the summons and complaint were served was Joseph’s actual place of business and that service of process was not properly effected upon him. The plaintiff appeals from so much of an order of the Supreme Court dated August 13, 2014, as denied those branches of his motion which were to reject the referee’s report and for leave to enter a default judgment against Joseph, and granted the cross motion of Joseph and the defendant South Island Medical Associates to confirm the referee’s report and to dismiss the complaint insofar as asserted against Joseph pursuant to CPLR 3211(a)(8).“Where a referee’s findings are supported by the record, the court should confirm the referee’s report and adopt the recommendation made therein” (Shen v. Shen, 21 AD3d 1078, 1079; see Varriano v. Steering Wheel Rentals, Inc., 73 AD3d 756, 756). A referee’s credibility determinations are entitled to deference on appeal because he or she had the opportunity to see and hear the witnesses and observe their demeanor (see Matter of Piller v. Schwimmer, 135 AD3d 766, 769; Galasso, Langione & Botter, LLP v. Galasso, 89 AD3d 897, 898). Here, contrary to the plaintiff’s contention, the Supreme Court properly confirmed the referee’s finding that the plaintiff failed to establish that the address where the summons and complaint were served was Joseph’s actual place of business, as this finding was supported by the record.The plaintiff’s remaining contentions are either without merit or not properly before this Court.MASTRO, J.P., SGROI, COHEN and MALTESE, JJ., concur.By Eng, P.J.; Roman, Miller and Christopher, JJ.MATTER of Police Officer James Kumano, petitioner/ap, v. Richard Conway respondents/res — (Index No. 2213/15)Proceeding pursuant to CPLR article 78 to review a determination of the Village of Port Chester Board of Trustees dated April 6, 2015, which, after a hearing, found the petitioner guilty of certain charges of misconduct and terminated his employment as a police officer in the Village of Port Chester Police Department, which proceeding was transferred to this Court by an order of the Supreme Court, Westchester County (Everett, J.), dated August 26, 2015, and appeal by the petitioner, as limited by his brief, from so much of the same order as denied that branch of the petition which alleged that the determination was made in violation of lawful procedure.ORDERED that on the Court’s own motion, the notice of appeal from the order dated August 26, 2015, is deemed to be an application for leave to appeal from so much of the order as denied that branch of the petition which alleged that the determination was made in violation of lawful procedure, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is affirmed insofar as appealed from; and it is further,ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,ORDERED that one bill of costs is awarded to the respondent.The petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of certain charges of misconduct and terminating his employment as a police officer with the Village of Port Chester Police Department (hereinafter the Department). The petitioner alleged, inter alia, that the determination by the Village of Port Chester Board of Trustees (hereinafter the Board) was made in violation of lawful procedure because the disciplinary charges against him were untimely. The petitioner also alleged that the Board’s determination was not supported by substantial evidence, and that the penalty of termination shocked one’s sense of fairness. The Supreme Court found that the determination was not made in violation of lawful procedure, and transferred to this Court that branch of the petition which alleged that the determination was not supported by substantial evidence.The petitioner’s contention that the disciplinary charges against him were untimely because they were served more than 90 days after the Department’s Acting Chief of Police became aware of the facts upon which the charges were based is without merit (see Matter of Lebron v. Village of Spring Val., 143 AD3d 720, 721). Pursuant to McKinney’s Unconsolidated Laws of NY §5711-q(9), disciplinary charges “shall not be brought more than ninety days after the time when the facts upon which such charges are based are known to such board of trustees or municipal board” (emphasis added). This rule is echoed in section 1202.03 of the Department’s Rules and Regulations, which provides that “ [i]n no event shall such charges be brought more than ninety days after the time when the facts upon which such charges are based are known to the Port Chester Board of Trustees” (emphasis added). Here, while the Acting Chief of Police allegedly had knowledge of the facts upon which the disciplinary charges were based more than 90 days before the charges were served upon the petitioner, there is no dispute that the Board itself did not have such knowledge. Accordingly, the charges were not untimely (see Matter of Lebron v. Village of Spring Val., 143 AD3d at 721).Contrary to the petitioner’s contention, the Board’s determination that he knowingly made false statements to investigators is supported by substantial evidence in the record, and therefore, may not be set aside (see CPLR 7803[4]; Matter of Berenhaus v. Ward, 70 NY2d 436, 443; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180; Matter of Loscuito v. Scoppetta, 50 AD3d 905, 906).In light of the fact that the petitioner made false statements, under oath, relating to serious charges implicating the integrity of himself and the Department, the penalty of dismissal was not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see Matter of Loscuito v. Scoppetta, 50 AD3d at 906).ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.Gary Liang, ap, v. Yi Jing Tan, res — (Index No. 8155/12)In an action for specific performance of a real estate contract, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (D. Hart, J.), dated November 12, 2015, which denied his motion to consolidate the action with an action entitled Tan v. Liang, pending in the Supreme Court, Queens County, under Index No. 13456/11, and to vacate a prior order of the same court dated September 19, 2012, inter alia, granting the defendant’s motion to vacate a notice of pendency and dismiss the complaint, (2), as limited by his brief, from so much of an order of the same court also dated November 12, 2015, as denied that branch of his motion which was for a preliminary injunction preventing the defendant from using the assets received from the sale of certain real property, and (3) from an order of the same court dated November 25, 2015, which denied the defendant’s motion to consolidate the action with other actions pending in the Supreme Court, Queens County, between the parties.ORDERED that the appeal from the order dated November 25, 2015, is dismissed, as the plaintiff is not aggrieved by that order (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144, 156-157); and it is further,ORDERED that the first order dated November 12, 2015, is affirmed; and it is further,ORDERED that the second order dated November 12, 2015, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendant.The plaintiff commenced this action seeking specific performance of a contract for the sale of an apartment. In an order dated September 19, 2012, the Supreme Court granted a motion by the defendant to, inter alia, dismiss the complaint. Thereafter, the plaintiff moved pursuant to CPLR 5015(a)(3) to vacate the order dated September 19, 2012, and to consolidate this action with another action pending between the parties. The court denied the motion in an order dated November 12, 2015.The plaintiff failed to demonstrate the existence of fraud, misrepresentation, or misconduct on the part of the defendant and, therefore, he was not entitled to vacatur pursuant to CPLR 5015(a)(3) (see Diaz v. Wyckoff Hgts. Med. Ctr., 148 AD3d 778, 779; Porter v. Porter, 137 AD3d 992, 993). Accordingly, the Supreme Court properly denied the plaintiff’s motion pursuant to CPLR 5015(a)(3) to vacate the order dated September 19, 2012, and to consolidate this action with another action pending between the parties.The Supreme Court also properly denied that branch of the plaintiff’s motion which was for a preliminary injunction preventing the defendant from using assets received from the sale of the subject apartment. ”To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor” (Swartz v. Swartz, 145 AD3d 818, 822; see CPLR 6301). ”The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” (Swartz v. Swartz, 145 AD3d at 822 [internal quotation marks omitted]). Here, the plaintiff failed to demonstrate a likelihood of success on the merits, and failed to demonstrate irreparable injury since he did not establish that monetary damages would be inadequate compensation (see CPLR 6301; Swartz v. Swartz, 145 AD3d at 822; Stangel v. Zhi Dan Chen, 74 AD3d 1050, 1053-1054; Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738, 740).The plaintiff’s remaining contentions are without merit.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Dillon, J.P.; Leventhal, Roman and Cohen, JJ.PEOPLE, etc., res, v. Corey Herb, ap — (Ind. No. 8137/09)Corey Herb, Wallkill, NY, appellant pro se.Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.Paul Skip Laisure, New York, NY (Mark W. Vorkink of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated October 9, 2013 (People v. Herb, 110 AD3d 829), affirming a judgment of the Supreme Court, Kings County, rendered August 17, 2011.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).DILLON, J.P., LEVENTHAL, ROMAN and COHEN, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of Eric P. (Anonymous). Suffolk County Department of Social Services, res; Omar P. (Anonymous), ap — MATTER of Etan P. (Anonymous). Suffolk County Department of Social Services, res; Omar P. (Anonymous), ap — MATTER of Evan P. (Anonymous). Suffolk County Department of Social Services, res; Omar P. (Anonymous), ap — (Docket Nos. N-10233-16, N-10234-16, N-10238-16)Appeal by the father from an order of the Family Court, Suffolk County (Philip Goglas, Acting Family Court Judge), dated December 12, 2016. The order, after a fact-finding hearing, found that the father neglected the subject children.ORDERED that the order is affirmed, without costs or disbursements.Following an argument, the father allegedly grabbed the mother’s face and punched her while two of their children were in the same room. Both children saw the father grab the mother’s face, and one child saw the father punch her. There was evidence at the fact-finding hearing of regular arguments and domestic violence in the household and evidence that the two youngest children were afraid of the father. The Family Court found that the petitioner established by a preponderance of the evidence that the father neglected the subject children. The father appeals from the order.The Family Court properly found that a preponderance of the evidence established that the children’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father’s commission of an act, or acts, of domestic violence in the presence of two of the children (see Matter of Kiara C. [David C.], 85 AD3d 1025, 1026; see also Nicholson v. Scoppetta, 3 NY3d 357, 368; Matter of Jayda D.-B., 33 AD3d 998, 998). The out-of-court statements of the father’s youngest son describing the father punching the mother in the face were reliably corroborated by the out-of-court statements of his siblings as well as photographic evidence of the mother’s physical injury (see Family Ct Act §1046[a][vi]; Matter of Nicole V., 71 NY2d 112, 119; Matter of Mohammed J. [Mohammed Z.], 121 AD3d 994, 995; Matter of Joshua B., 28 AD3d 759, 760-761; Matter of Christopher L., 19 AD3d 597, 597; Matter of Latisha W., 221 AD2d 645, 645).MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Toni Marie Pecoraro, ap, v. Domenico Tribuzio, et al., res — (Index No. 3792/15)In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much an order of the Supreme Court, Kings County (Baily-Schiffman, J.), dated June 21, 2016, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Lucia Tribuzio.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Lucia Tribuzio is denied.The plaintiff alleged that she slipped and fell on ice that was located on the exterior steps of premises in Brooklyn owned or controlled by the defendants. Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.The Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Lucia Tribuzio based on the storm in progress rule. ”Under the ‘storm in progress rule,’ a landowner ‘generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter’” (Weller v. Paul, 91 AD3d 945, 947, quoting Mazzella v. City of New York, 72 AD3d 755, 756). Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Lucia based on the storm in progress rule. The climatological data submitted by the defendants in support of their motion contradicted the plaintiff’s deposition testimony, which the defendants also submitted, as to whether precipitation was falling at or near the time of the accident. Since the evidence submitted by the defendants was in conflict and, thus, could not establish, prima facie, that the storm in progress rule applied (see Abramo v. City of Mount Vernon, 103 AD3d 760, 761; Kantor v. Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177, 1177; Weller v. Paul, 91 AD3d at 947; Lester v. Ackerman, 82 AD3d 847, 847), the court should have denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against Lucia, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of Carol Lee Bahna, ap, v. Alexander S. Outman res — (Docket No. V-33240-13)Appeal by the maternal grandmother from an order of the Family Court, Kings County (Adam Silvera, J.), dated March 23, 2016. The order, upon the granting of the father’s motion to dismiss the petition for grandparent visitation for lack of standing, made after the conclusion of the maternal grandmother’s direct examination at a hearing on the issue of standing, dismissed the petition.ORDERED that the order is affirmed, with costs to the father payable by the petitioner.The petitioner, who is the maternal grandmother of the subject child, commenced this proceeding seeking visitation with the child. After the conclusion of the petitioner’s direct examination at a hearing on the issue of standing, the child’s father, who has sole custody of the child, moved to dismiss the petition for lack of standing. The Family Court granted the father’s motion and, thereupon, in the order appealed from, dismissed the petition.Contrary to the petitioner’s contention, the Family Court properly determined that she lacked standing to seek visitation with the child, as she failed to demonstrate at the hearing that the father frustrated her visitation with the child, or otherwise demonstrate that conditions exist which equity would see fit to intervene (see Domestic Relations Law §72[1]; Matter of Emanuel S. v. Joseph E., 78 NY2d 178, 182-183; Matter of Troiano v. Marotta, 127 AD3d 877, 878-879; Matter of Bender v. Cendali, 107 AD3d 981, 982-983). Moreover, under the unique circumstances of this case, the Family Court properly granted the father’s motion to dismiss after the conclusion of the petitioner’s testimony (see CPLR 4401; cf. Matter of Jeffrey JJ. v. Stephanie KK., 88 AD3d 1083, 1084).The petitioner’s remaining contention is without merit.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Rivera, J.P.; Hall, Miller and Duffy, JJ.PEOPLE, etc., res, v. Shau Chan, ap — (Ind. No. 3271/94)Shau Chan, Stormville, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jonathan K. Yi 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 November 3, 1997 (People v. Shau Chan, 244 AD2d 365), affirming a judgment of the Supreme Court, Queens County, rendered October 25, 1995.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Citimortgage, Inc., etc., res, v. Dennis Rockefeller, etc., appellant def — (Index No. 11485/11)In an action to foreclose a mortgage, the defendant Dennis Rockefeller appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Nassau County (Adams, J.), entered July 13, 2015, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against him and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him, and (2) so much of an order of the same court entered July 17, 2015, as granted that branch of the plaintiff’s motion which was for an order of reference.ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.Generally, a plaintiff in a mortgage foreclosure action is entitled to summary judgment if it establishes the existence of a mortgage, an unpaid note, and the defendant’s default, and the defendant fails to raise a triable issue of fact in opposition (see Midfirst Bank v. Agho, 121 AD3d 343, 347; Swedbank AB, N.Y. Branch v. Hale Ave. Borrower, LLC, 89 AD3d 922, 923). Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by producing copies of the mortgage and unpaid note, and evidence of default (see Onewest Bank, FSB v. Prince, 130 AD3d 700, 701; NationStar Mtge., LLC v. Silveri, 126 AD3d 864, 865). In opposition, the appellant failed to raise a triable issue of fact.However, where, as here, standing has been made an issue, a plaintiff must also provide prima facie proof that it had standing to sue as of the time it commenced the action (see Central Mtge. Co. v. Jahnsen, 150 AD3d 661, 662; Citimortgage, Inc. v. Stosel, 89 AD3d 887, 888). The plaintiff met this burden by submitting evidence showing that the initial mortgagee, ABN AMRO Mortgage Group, Inc., merged with it in 2007, whereupon the plaintiff became the holder of the note (see Banking Law §602; Citimortgage v. Goldberg, 134 AD3d 880, 881; TD Bank, N.A. v. Mandia, 133 AD3d 590, 591; PNC Bank, N.A. v. Klein, 125 AD3d 953, 955; Capital One, N.A. v. Brooklyn Flatiron, LLC, 85 AD3d 837, 837). In opposition, the appellant failed to raise a triable issue of fact (see TD Bank, N.A. v. Mandia, 133 AD3d at 591; PNC Bank, N.A. v. Klein, 125 AD3d at 955).Moreover, the Supreme Court properly denied that branch of the appellant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him as a sanction for the plaintiff’s failure to negotiate in good faith. CPLR 3408 is a remedial statute which “requires only that the parties enter into and conduct negotiations in good faith” (US Bank N.A. v. Sarmiento, 121 AD3d 187, 200). To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” (U.S. Bank N.A. v. Sarmiento, 121 AD3d at 203; see Wells Fargo Bank, N.A. v. Miller, 136 AD3d 1024, 1025). Here, the appellant failed to demonstrate that, under the totality of the circumstances, the plaintiff did not negotiate in good faith during the foreclosure settlement conferences (see PNC Bank, N.A. v. Campbell, 142 AD3d 1147, 1148; Retained Realty, Inc. v. Syed, 137 AD3d 1099, 1100; Deutsche Bank Natl. Trust Co. v. Twersky, 135 AD3d 895, 896; Bank of New York v. Castillo, 120 AD3d 598, 600).BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.PEOPLE, etc., res, v. Frank Polancobatista, a/k/a Frank Batista, ap — (Ind. No. 14-01593)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered August 5, 2015, as amended August 11, 2015, convicting him of robbery in the third degree, sexual abuse in the first degree, grand larceny in the fourth degree, attempted rape in the first degree, attempted sexual abuse in the first degree, and criminal obstruction of breathing, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.ORDERED that the judgment, as amended, is affirmed.The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress statements the defendant made to police in a patrol car after his apprehension, but before Miranda warnings were given (see Miranda v. Arizona, 384 US 436), since those statements were spontaneous and not the result of interrogation or its functional equivalent (see People v. Lopez, 150 AD3d 1266, 1266; People v. Jackson, 150 AD3d 1025, 1026; People v. Reaves, 112 AD3d 746, 747; People v. Anderson, 94 AD3d 1010, 1011; People v. Henderson, 57 AD3d 562, 564; People v. Davis, 32 AD3d 445, 446). While the questioning of the defendant months later as to other charges in the absence of his assigned counsel was improper (see People v. Henry, 144 AD3d 940, 944-945, lv granted 29 NY3d 998), suppression of items recovered during the execution of a search warrant obtained thereafter that was based, in part, on the defendant’s statements made to police at that time, was not required. The remaining information contained in the application for the search warrant was sufficient to establish the requisite probable cause (see People v. Murray, 136 AD3d 714, 714; People v. Wahhab, 84 AD3d 982, 983; People v. Levy, 65 AD3d 1057, 1057-1058, affd 15 NY3d 510; People v. Cassese, 58 AD3d 639, 639).Contrary to the defendant’s contention, defense counsel was not ineffective for declining to oppose the People’s motion to consolidate the indictments because the indictments were properly joinable, consolidation was a proper exercise of discretion, and opposition to the motion would have had little to no chance of success (see People v. Ennis, 11 NY3d 403, 415; People v. Caban, 5 NY3d 143, 152; People v. Chirse, 151 AD3d 737, 738; People v. Walker, 115 AD3d 889, 889; People v. Cromwell, 99 AD3d 1017, 1017). In addition, since the People presented evidence sufficient to provide reasonable assurances of the identity and unchanged condition of the DNA evidence at trial (see People v. Hawkins, 11 NY3d 484, 494; People v. Davidson, 111 AD3d 848, 848-849; People v. Smith, 98 AD3d 533, 534-535; People v. Ortiz, 80 AD3d 628, 630; People v. Morgan, 48 AD3d 703, 704; People v. Gibson, 28 AD3d 576, 576), defense counsel’s failure to object to the admission of certain DNA evidence did not constitute ineffective assistance of counsel (see People v. Chestnut, 149 AD3d 772, 774; People v. Abuziyad, 136 AD3d 837, 838).BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Mastro, J.P.; Hall, Sgroi and Duffy, JJ.MATTER of Melvin Reyes, ap, v. Deborah Gill, res — (Docket No. V-2175-11/16E)Appeal by the father from an order of the Family Court, Queens County (Jane A. McGrady, Ct. Atty. Ref.), dated November 4, 2016. The order, after a hearing, denied the father’s petition for permission to relocate to Pennsylvania with the parties’ child.ORDERED that the order is affirmed, without costs or disbursements.The parties have one child together. The father, who has sole custody, resides in Queens, while the mother, who has visitation with the child on alternating weekends, resides in Manhattan. In 2016, the father filed a petition for permission to relocate with the child to Pennsylvania. After a hearing, the Family Court denied the father’s petition, and the father appeals.A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the child’s best interests (see Matter of Tropea v. Tropea, 87 NY2d 727, 741; Matter of Caruso v. Cruz, 114 AD3d 769, 771). Although the parents’ rights are significant, the child’s needs and rights “must be accorded the greatest weight,” and, moreover, the effect of the relocation on the noncustodial parent’s relationship with the children “will remain a central concern” (Matter of Tropea v. Tropea, 87 NY2d at 739; see DeFilippis v. DeFilippis, 146 AD3d 750, 751).Here, in determining the father’s petition, the Family Court considered and gave appropriate weight to all of the relevant factors (see Matter of Tropea v. Tropea, 87 NY2d at 740-741), including the potential impact on the quantity and quality of the mother’s visitation if the child were to relocate to a part of Pennsylvania that is an approximate three-hour drive from the mother’s residence. The court also considered, inter alia, the degree to which the father’s and the child’s lives might be enhanced economically, emotionally, and educationally by the move (see id.). As to that factor, the father offered only his opinion as to the quality of the schools in Pennsylvania as opposed to those in the father’s current neighborhood; unsubstantiated, vague testimony about an employment opportunity in Pennsylvania; and no testimony regarding his efforts to locate similar employment in New York.Under these circumstances, the Family Court’s determination that the father failed to establish that relocating from Queens to Pennsylvania would be in the best interests of the child had a sound and substantial basis in the record (see Matter of McGinn v. DeVivo, 154 AD3d 852; DeFilippis v. DeFilippis, 146 AD3d at 751; Schwartz v. Schwartz, 70 AD3d 923).The father’s remaining contention is without merit.MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.MATTER of State of New York, res, v. Jameek B. (Anonymous), ap — (Index No. 3/13)In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Jameek B., an adjudicated sex offender previously determined to have been suffering from a mental abnormality requiring civil management, Jameek B. appeals from an order of the Supreme Court, Nassau County (Delligatti, J.), entered June 17, 2016, which after a hearing, found that he violated the mandatory conditions of his strict and intensive supervision and treatment regimen, found him to be a dangerous sex offender requiring civil confinement, granted the petition, and directed that he be committed to a secure treatment facility until such time as he no longer requires confinement.ORDERED that the order is affirmed, without costs or disbursements.In 2005, the appellant was incarcerated after he was convicted of criminal sexual act in the third degree (two counts) and sexual misconduct (two counts) for engaging in a series of sexual acts with two 15-year-old girls. In January 2013, as his release date approached, the State of New York commenced a proceeding pursuant to Mental Hygiene Law article 10, alleging that he was a sex offender requiring civil management. After a finding, upon the appellant’s consent dated April 18, 2014, that he suffered from a mental abnormality, the appellant waived a dispositional hearing and consented to a determination that he was a sex offender requiring strict and intensive supervision and treatment (hereinafter SIST). In May 2014, the appellant was released into the community on a SIST regimen.In June 2014, approximately three weeks after his release into the community, the appellant was arrested for violating the conditions of his SIST regimen. The State subsequently filed a petition to revoke the appellant’s release pursuant to the SIST regimen and confine him in a secure facility as a dangerous sex offender (see Mental Hygiene Law §10.11[d][2]). After a hearing, the Supreme Court determined that the State had failed prove by clear and convincing evidence that the appellant was a dangerous sex offender requiring confinement. Therefore, in September 2015, the court, in effect, denied the petition, dismissed the proceeding, and re-released him into the community on his original SIST regimen.In October 2015, approximately five weeks after his re-release into the community, the appellant was again taken into custody for violating the conditions of his SIST regimen. In November 2015, the State again filed a petition to revoke the appellant’s release pursuant to the SIST regimen and confine him in a secure facility as a dangerous sex offender. In June 2016, following a hearing, the Supreme Court determined that the State had met its burden of showing by clear and convincing evidence that the appellant was a dangerous sex offender requiring confinement, and committed him to a secure facility.Contrary to the appellant’s contention, his pre-release admission that he suffered from a mental abnormality (see Mental Hygiene Law §10.03[i]) established that he suffered from a mental abnormality for the purposes of the subsequent proceeding to revoke his release (see Matter of State of New York v. David HH., 147 AD3d 1230; Matter of State of New York v. Wayne J., 143 AD3d 834; Matter of State of New York v. Jason H., 82 AD3d 778).Furthermore, the State established, by clear and convincing evidence, that the appellant’s level of dangerousness required confinement (see Mental Hygiene Law §§10.07[f]; 10.11[d][4]; Matter of State of New York v. Robert F., 25 NY3d 448, 455; Matter of State of New York v. Larry B., 113 AD3d 865, 867). While the appellant’s violations of the conditions of his SIST regimen were not sexual in nature, they were nonetheless “highly relevant regarding the level of danger that [the appellant] poses to the community with respect to his risk of recidivism” (Matter of State of New York v. Donald N., 63 AD3d 1391, 1394).The appellant’s remaining contention is without merit.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Roman, J.P.; Maltese, Lasalle and Barros, JJ.MATTER of James M. B. (Anonymous). Forestdale, Inc., petitioner-res; Claudia H. (Anonymous) respondents-ap — (Proceeding No. 1)MATTER of Jessica J. H. (Anonymous). Forestdale, Inc., petitioner-res; Claudia H. (Anonymous), res-ap, et al., res — (Proceeding No. 2)MATTER of Jasmine A. B. (Anonymous). Forestdale, Inc., petitioner-res; Claudia H. (Anonymous) respondents-ap — (Proceeding No. 3)MATTER of Joel J. B. (Anonymous). Forestdale, Inc., petitioner-res; Claudia H. (Anonymous), res-ap, et al., res — (Proceeding No. 4)MATTER of Joshua S. B. (Anonymous). Forestdale, Inc., petitioner-res; Claudia H. (Anonymous) respondents-ap — (Proceeding No. 5) (Docket Nos. B-588-12, B-589-12, B-590-12, B-591-12, B-592-12)Appeals from five orders of disposition of the Family Court, Queens County (Carol A. Stokinger, J.) (one as to each child), all dated September 17, 2015. The orders, after a dispositional hearing, determined that the consent of the appellant Michael B., the father of the subject children James M. B., Jasmine A. B., and Joshua S. B., to the adoption of those children was not required and that he was not entitled to notice of any further proceedings concerning those children, terminated the parental rights of the appellant Claudia H., the mother of all five subject children, and transferred the guardianship and custody of the children to the Commissioner of the Administration for Children’s Services of the City of New York and Forestdale, Inc., for the purpose of adoption. The appeals bring up for review an order of fact-finding of that court dated July 14, 2014, which, after a fact-finding hearing, found that Michael B. was a notice father only, or in the alternative, that he had permanently neglected the children James M. B., Jasmine A. B., and Joshua S. B., and that the mother had permanently neglected all five children.ORDERED that the orders of disposition are affirmed, without costs or disbursements.In these related proceedings pursuant to Social Services Law §384-b to terminate parental rights on the ground of permanent neglect, Claudia H. is the mother of all five subject children. Michael B. is the father of three of the children: James M. B., Jasmine A. B., and Joshua S. B. The parents were not married. All five children were placed into foster care in July 2010. Petitions were filed in January 2012, alleging that the mother had permanently neglected the five children, and that the father had permanently neglected the children James M. B., Jasmine A. B., and Joshua S. B.Domestic Relations Law §111(1)(d) provides that the consent to the adoption of a child born out of wedlock and placed with the adoptive parents more than six months after birth is required of the father “only if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by: (i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father’s means, and either (ii) the father’s visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father’s regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.” The agency is not required to make a showing of diligent efforts to encourage the father to perform the acts specified in the statute (see id.).Here, the Family Court’s determination that the father’s consent to the adoption of his children was not required was supported by clear and convincing evidence (see Matter of Janelle C. [Sean R.], 88 AD3d 787; Matter of Sharissa G., 51 AD3d 1019, 1020). The father’s incarceration did not absolve him of the responsibility to maintain regular contact with the children or the agency and to provide financial support for the children, nor did it establish as a matter of law that he did not have the means to provide financial support (see Matter of Anthony C.M. III [Anthony C.M.], 141 AD3d 718, 719; Matter of Yamilette M.G. [Marlene M.], 118 AD3d 698, 699; Matter of De’Von M.F.C. [Mustapha F.], 105 AD3d 738, 739). The father’s testimony at the fact-finding hearing established that he did not provide financial support for the children either during or after his incarceration. Although the father claimed that he had called the agency numerous times, the court was not required to credit that testimony (see Matter of Isis S., 60 AD3d 1385).The Family Court also did not err in finding that the mother had permanently neglected the children. The agency established by clear and convincing evidence that the mother failed for a period of either at least one year or 15 out of the most recent 22 months following the date the children came into its care substantially and continuously or repeatedly to plan for the future of the children, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship (see Social Services Law §384-b[7][a]). The mother failed to take the necessary steps to provide an adequate, stable home and parental care for the children within a reasonable period of time (see Social Services Law §384-b[7][c]). The mother’s mere participation in classes and programs was not enough to meet the requirement to plan for the children’s future when she did not benefit from the services, programs, and support offered and did not utilize the tools or lessons learned in those classes in order to successfully plan for the children’s future (see Matter of Jessica U. [Stephanie U.], 152 AD3d 1001, 1005; Matter of Aniya L. [Samantha L.], 124 AD3d 1001, 1004). The mother failed to gain any insight into the problems that were preventing the children’s return to her care, and the evidence showed that the mother was unaware of how her actions affected her relationship with the children. Moreover, she never acknowledged her responsibility for the removal of the children from her care, and she failed to obtain adequate housing for the children (see Matter of Kira J. [Lakisha J.], 108 AD3d 541; Matter of Shamika K.L.N. [Melvin S.L.], 101 AD3d 729, 730-731; Matter of Dariana K.C. [Katherine M.], 99 AD3d 899, 901).The mother’s contention that the Family Court erred in admitting the agency’s case record into evidence as a business record is without merit. A proper foundation for the admission of the case record was laid by the testimony of the agency administrative supervisor, who was familiar with the agency’s record-keeping practices (cf. Cadlerock Joint Venture, L.P. v. Trombley, 150 AD3d 957, 959). Each participant in the chain producing the record was acting within the course of regular business conduct (see Matter of Leon RR, 48 NY2d 117, 122). The court providently exercised its discretion in limiting the records admissible to those entries made contemporaneously with the events reported or within a reasonable time thereafter (see CPLR 4518[a]; cf. Matter of Dustin H., 40 AD3d 995, 996).The mother’s remaining contention is without merit.ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.MATTER of Pauline M. Russell, ap, v. New York City Employees Retirement System, res — (Index No. 4346/15)In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the New York City Employees’ Retirement System dated September 11, 2014, which adopted the recommendation of the Medical Board of the New York City Employees’ Retirement System and denied the petitioner’s application for disability retirement benefits pursuant to Retirement and Social Security Law §605, the petitioner appeals from a judgment of the Supreme Court, Kings County (Genovesi, J.), dated June 16, 2016, which denied the petition and dismissed the proceeding.ORDERED that the judgment is affirmed, without costs or disbursements.The petitioner applied to the New York City Employees’ Retirement System for disability retirement benefits pursuant to Retirement and Social Security Law §605. The Medical Board of the New York City Employees’ Retirement System (hereinafter the Medical Board) recommended that her application be denied. The Board of Trustees of the New York City Employees’ Retirement System (hereinafter the Board of Trustees) adopted the Medical Board’s recommendation and denied the petitioner’s application. The petitioner commenced this CPLR article 78 proceeding to review the determination of the Board of Trustees. In a judgment dated June 16, 2016, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board’s finding that an applicant is, or is not, disabled for duty (see Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 NY2d 756, 760; Matter of Drummond v. New York City Employees’ Retirement Sys., 98 AD3d 1116, 1117; Matter of Drew v. New York City Employees’ Retirement Sys., 305 AD2d 408, 408-409). ”The Medical Board’s determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious” (Matter of Drummond v. New York City Employees’ Retirement Sys., 98 AD3d at 1117 [internal quotation marks omitted]; see Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 NY2d at 760-761; Matter of Drew v. New York City Employees’ Retirement Sys., 305 AD2d at 409).Here, the record demonstrates that the Medical Board performed physical examinations of the petitioner and considered her medical evidence. Although the medical conclusions of some of the petitioner’s treating physicians differed from those of the Medical Board, the resolution of such conflicts is the sole province of the Medical Board (see Matter of Drummond v. New York City Employees’ Retirement Sys., 98 AD3d at 1117; Matter of Drew v. New York City Employees’Retirement Sys., 305 AD2d at 409). The determination of the Medical Board was supported by credible evidence, and the determination of the Board of Trustees was neither irrational, nor arbitrary and capricious (see Matter of Drummond v. New York City Employees’ Retirement Sys., 98 AD3d at 1117-1118; Matter of Borenstein v. New York City Employees’ Retirement Sys., 88 NY2d at 760-761; Matter of Drew v. New York City Employees’ Retirement Sys., 305 AD2d at 409). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.Bank of America, N.A., etc., res, v. Samuel L. Gowrie appellants def — (Index No. 6216/09)In an action to foreclose a mortgage, the defendants Samuel L. Gowrie, Heather Gowrie, Sherwin Gowrie, and Simone Gowrie appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Velasquez, J.), dated February 26, 2015, as granted those branches of the plaintiff’s motion which were to vacate a prior order of reference of the same court (Agate, J.) dated July 10, 2009, to vacate a judgment of foreclosure and sale of the same court (Agate, J.) dated November 4, 2009, and for a new order of reference.ORDERED that the order dated February 26, 2015, is affirmed insofar as appealed from, with costs.Contrary to the appellants’ contention, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff’s motion which were to vacate a prior order of reference and a judgment of foreclosure and sale (see CPLR 5015[a][5]; Bank of N.Y. Mellon v. Casale, 140 AD3d 682, 682; Bank of N.Y. v. Stein, 130 AD3d 552, 552). The plaintiff also was entitled to a new order of reference, since, in support of its motion, it submitted the mortgage, the underlying unpaid note, the complaint setting forth the facts establishing the claim, and an affidavit attesting to the default on the mortgage (see US Bank N.A. v. Singer, 145 AD3d 1057, 1058; Bank of N.Y. Mellon v. Casale, 140 AD3d at 682; U.S. Bank N.A. v. Ahmed, 137 AD3d 1106, 1108; U.S. Bank N.A. v. Gulley, 137 AD3d 1008, 1009; Bank of N.Y. v. Stein, 130 AD3d at 552).On a prior appeal, this Court affirmed an order denying the appellants’ motion pursuant to CPLR 5015(a)(1) to vacate their default in answering the complaint (see Bank of Am., N.A. v. Gowrie, 106 AD3d 677). Contrary to the appellants’ contention, since they defaulted in answering the complaint and failed to demonstrate grounds for vacating their default, they are precluded from asserting, in essence, the plaintiff’s lack of standing as a basis for denial of that branch of the plaintiff’s motion which was for a new order of reference (cf. Bank of N.Y. Mellon v. Izmirligil, 144 AD3d 1067, 1068).The appellants’ remaining contentions are without merit.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Christine Flanagan, res, v. Town of Huntington def, Edward Martin Revocable Trust, ap — (Index No. 24218/12)In an action to recover damages for personal injuries, the defendant Edward Martin Revocable Trust appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 21, 2016, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.On January 8, 2012, at about 3:00 p.m., the plaintiff allegedly tripped and fell due to a defective curb and sidewalk condition abutting a premises owned by the defendant Edward Martin Revocable Trust (hereinafter the Trust) in Huntington. The plaintiff commenced this action against, among others, the Trust. The Trust moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, contending that the plaintiff did not know what had caused her to fall and, in any event, that the alleged defect that had caused the plaintiff to fall was trivial and, therefore, not actionable. The Supreme Court denied the motion. The Trust appeals.In a trip-and-fall case,”[a] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” (Hoovis v. Grand City 99 Cents Store, Inc., 146 AD3d 866, 866; see Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826, 827; Patrick v. Costco Wholesale Corp., 77 AD3d 810, 810). Here, viewing the evidence in the light most favorable to the plaintiff as the nonmovant, the Trust failed to establish, prima facie, that the plaintiff was unable to identify the cause of her fall (see Lamour v. Decimus, 118 AD3d 851, 851-852; Jackson v. Fenton, 38 AD3d 495, 496). Additionally, the Trust failed to establish, prima facie, that the alleged defective condition of the curb and sidewalk was trivial and that the characteristics of the alleged defective condition or the surrounding circumstances did not increase the risks it posed (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 79).Accordingly, the Supreme Court properly denied that branch of the Trust’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.PEOPLE, etc., res, v. Angel Martinez, ap — (Ind. No. 14-00197)Del Atwell, East Hampton, NY, for appellant, and appellant pro se.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and Steven A. Bender of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered October 28, 2014, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 341-342; People v. Jessamy, 137 AD3d 1056, 1056). The defendant’s valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of the plea allocution (see People v. Flowers, 152 AD3d 791; People v. Smith, 146 AD3d 904, 904-905).The defendant’s contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Smith, 146 AD3d at 904-905; People v. Magnotta, 137 AD3d 1303). However, contrary to the defendant’s contention, his plea of guilty was not coerced by the County Court’s remarks informing him of his possible sentence exposure were he to proceed to trial. Such remarks are informative rather than coercive (see People v. Foster, 99 AD3d 812, 812-813; People v. Strong, 80 AD3d 717, 718; People v. Bravo, 72 AD3d 697, 698).By pleading guilty, the defendant forfeited appellate review of his claims of ineffective assistance of counsel that did not directly involve the plea negotiation process and sentence (see People v. Fakhoury, 103 AD3d 664; People v. Soria, 99 AD3d 1027, 1027-1028). Moreover, the defendant’s valid waiver of his right to appeal limits this Court’s review to issues regarding the voluntariness of the plea (see People v. Flowers, 152 AD3d 791; People v. Mejia, 112 AD3d 855, 856). 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, 1009; see People v. Evans, 16 NY3d 571, 575 n 2; People v. Thorne, 116 AD3d 988; People v. Fakhoury, 103 AD3d 664). 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. Thorne, 116 AD3d 988; People v. Fakhoury, 103 AD3d at 664).The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d 248, 256; People v. Rankine, 153 AD3d 732; People v. Flowers, 152 AD3d 791).The defendant’s remaining contentions are without merit.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Chambers, J.P.; Cohen, Nelson and Christopher, JJ.PEOPLE, etc., res, v. Gregory Radcliffe, ap — (Ind. No. 95-01734)Gregory Radcliffe, Alden, NY, appellant pro se.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender 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 June 26, 2000 (People v. Radcliffe, 273 AD2d 483), affirming a judgment of the County Court, Westchester County, rendered November 18, 1996.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).CHAMBERS, J.P., COHEN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.PEOPLE, etc., res, v. Daryle D. McClenic, ap — (Ind. No. 529/15)Marianne Karas, Thornwood, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered March 14, 2016, convicting him of criminal sale of a controlled substance in the fifth degree and reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Although a claim that a plea of guilty was not knowing, voluntary, and intelligent survives a valid waiver of the right to appeal (see People v. Seaberg, 74 NY2d 1, 10; see also People v. Broccoli, 152 AD3d 536, 536; People v. May, 138 AD3d 1146, 1146), the defendant failed to preserve for appellate review his contention that his plea of guilty was not knowing, voluntary, or intelligent, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see People v. May, 138 AD3d at 1146; People v. Jackson, 114 AD3d 807, 807; People v. Bolton, 63 AD3d 1087). In any event, the record demonstrates that the defendant’s plea was knowingly, voluntarily, and intelligently entered.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Dillon, J.P.; Balkin, Miller and Lasalle, JJ.MATTER of Michael R. (Anonymous), ap, v. Aliesha H. (Anonymous), res — (Proceeding No. 1)MATTER of Aliesha H. (Anonymous), res, v. Michael R. (Anonymous), ap — (Proceeding No. 2) (Docket No. V-23068-10)Larry S. Bachner, Jamaica, NY, for appellant.Heath J. Goldstein, Jamaica, NY, for respondent.Anthony DeGuerre, Staten Island, NY, attorney for the child.Appeal by the father from three orders of the Family Court, Queens County (Julie Stanton, Ct. Atty. Ref.), all dated January 11, 2017. The first order, after a hearing, denied the father’s motion to hold the mother in contempt for allegedly violating an order of visitation. The second order, after a hearing, in effect, denied the father’s petition to modify a prior order of visitation, and set forth a final schedule of visitation. The third order, after a hearing, granted the mother’s petition to modify a prior order of visitation, and set forth a final schedule of visitation.ORDERED that the first order is affirmed, without costs or disbursements; and it is further,ORDERED that the second and third orders are modified, on the law, (1) by deleting the provisions thereof directing the parties to agree upon a supervisor and directing that the father’s supervised visitation would take place at an agency if the parties could not agree on a supervisor, (2) by deleting the provisions thereof directing that the father was responsible for any costs incurred for his visitation with the child, and (3) by deleting the provisions thereof directing that the father would forfeit his visit if he was more than 15 minutes late picking up the child, and would forfeit his next visit if he was more than 15 minutes late returning the child; as so modified, the second and third orders are affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.The parties’ child was born in 2008. In an order dated June 29, 2011, the Family Court awarded the mother sole legal and physical custody of the child and awarded the father parenting time with the child. In 2016, the father filed a petition to modify the prior visitation order so as to give him additional unsupervised visitation. He then moved by order to show cause to hold the mother in contempt for allegedly canceling two of his visits with the child. The mother filed a petition to modify the visitation order so as to limit the father to only supervised visitation with the child or, in the alternative, to limit the father’s visitation to one four-hour visit with the child every other Sunday in a public place. After a hearing, in three orders dated January 11, 2017, the Family Court (1) denied the father’s motion to hold the mother in contempt, (2), in effect, denied the father’s petition to modify the prior visitation order, and (3) granted the mother’s petition to modify the prior visitation order. In both the order granting the mother’s petition and the order, in effect, denying the father’s petition, the court awarded the father supervised visitation with the child from 10:00 a.m. until 4:00 p.m. on alternate Saturdays. It further directed that the father would forfeit his visit if he was more than 15 minutes late picking up the child, and would forfeit the next visit if he was more than 15 minutes late returning the child. In addition, the parties were directed to agree upon a supervisor, and if they could not do so, the father was to have visitation at an agency. Finally, the court directed that the father was responsible for any costs incurred for his visitation. The father appeals from the three orders dated January 11, 2017.Contrary to the Family Court’s determination, the father’s order to show cause on his motion to hold the mother in contempt contained the required notice and warning language set forth in Judiciary Law §756, and that language was in at least eight-point bold type (see Judiciary Law §756). However, the court correctly, in the alternative, denied the motion on the merits, as the father’s testimony established that the mother canceled only one of the two allegedly missed visits and that that visit was canceled because the child was ill (see Matter of Figueroa-Rolon v. Torres, 121 AD3d 684, 685; El-Dehdan v. El-Dehdan, 114 AD3d 4, 17, affd 26 NY3d 19).The Family Court properly, in effect, denied the father’s modification petition and properly granted the mother’s modification petition. The court’s determination that the father’s visitation with the child should be supervised had a sound and substantial basis in the record, as the evidence showed that unsupervised visitation would be detrimental to the child (see Matter of Spencer v. Killoran, 147 AD3d 862, 863). Likewise, there was a sound and substantial basis for the court’s determination that there had been a change of circumstances since the prior visitation order, so that modifying the terms and conditions of the father’s visitation was in the best interests of the child (see Matter of Sanders v. Jaco, 148 AD3d 812, 813; Matter of Spencer v. Killoran, 147 AD3d 862, 863).Under the circumstances of this case, the Family Court should not have directed the parties to agree on a supervisor for the father’s visitation with the child without conducting an adequate inquiry to determine whether they would be able to mutually agree upon an appropriate supervisor. Accordingly, we remit this matter to the Family Court, Queens Country, for the court to afford the parties a further opportunity to proffer a mutually acceptable supervisor. In the event the parties are unable to do so, the Family Court shall determine who will supervise the father’s visitation with the child, and specify at which agency the supervised visitation will occur.The Family Court should not have directed that the father was responsible for the cost of supervising his visitation without determining the “‘economic realities,’” including his ability to pay and the actual cost of each visit (Cervera v. Bressler, 50 AD3d 837, 840, quoting Matter of Rueckert v. Reilly, 282 AD2d 608, 609). Accordingly, we remit this matter to the Family Court, Queens County, to determine the costs, if any, of the father’s supervised visitation, and if there are visitation costs, to determine the economic realities and allocate those costs.The Family Court erred in granting the mother the authority to unilaterally cancel the father’s visitation if he were more than 15 minutes late to pick up or drop off the child. This provision did not give the father an opportunity to judicially challenge the mother’s determination, or to present a legitimate reason for his tardiness before having a visit canceled (see Johnson v. Johnson, 303 AD2d 641, 642). Thus, the court improperly delegated its authority to the mother to determine when the child would visit with the father (see id.; Jordan v. Jordan, 8 AD3d 444, 445).The father’s remaining contentions are either unpreserved for appellate review or without merit.DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.By Leventhal, J.P.; Austin, Maltese and Iannacci, JJ.MATTER of Jahiem J. (Anonymous), ap — (Docket No. D-8971-16)Appeal from an order of disposition of the Family Court, Queens County (Stephen J. Bogacz, J.), dated November 2, 2016. The order of disposition adjudicated Jahiem J. a juvenile delinquent, upon an order of fact-finding of that court dated September 7, 2016, made upon his admission, finding that he had committed an act which, if committed by an adult, would have constituted the crime of forcible touching, and placed him on probation for a period of 12 months.ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of probation has expired; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.In this juvenile delinquency proceeding, the Family Court issued an order of fact-finding, made upon the appellant’s admission, which found that he had committed an act which, if committed by an adult, would have constituted the crime of forcible touching. After a dispositional hearing, the court issued an order of disposition which adjudicated the appellant a juvenile delinquent and placed him on probation for a period of 12 months.Despite the fact that the term of the appellant’s probation has already expired, there may be collateral consequences resulting from the adjudication of delinquency and, therefore, the appeal from the portion of the order of disposition that adjudged the appellant to be a juvenile delinquent has not been rendered academic (see Matter of Tanaja F., 147 AD3d 936, 936; Matter of Isaiah C., 118 AD3d 780; Matter of Ashanti D., 100 AD3d 886).Contrary to the appellant’s contention, the Family Court providently exercised its discretion in adjudicating him a juvenile delinquent instead of granting his request for an adjournment in contemplation of dismissal. The imposition of probation was the least restrictive alternative consistent with the needs and best interests of the appellant and the need for protection of the community. The disposition was appropriate in light of, inter alia, the recommendation in the probation report, the appellant’s minimization of and failure to accept responsibility for his conduct, and his need for increased supervision (see Matter of Anthony W., 152 AD3d 708, 709; Matter of Tanaja F., 147 AD3d at 936-937; Matter of Elijah G., 138 AD3d 839, 840; cf. Matter of Jonathan M., 107 AD3d 805, 807).LEVENTHAL, J.P., AUSTIN, MALTESE and IANNACCI, JJ., concur.By Chambers, J.P.; Hall, Maltese and Brathwaite Nelson, JJ.Neil H. Greenberg, ap, v. Al Meyreles res — (Index No. 1485/13)Appeal from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered December 11, 2014. The order, insofar as appealed from, denied the plaintiff’s motion for summary judgment on the cause of action alleging breach of contract insofar as asserted against the defendant Advanced Air Ambulance Corp., and granted those branches of the defendants’ cross motion which were for summary judgment dismissing the cause of action alleging fraudulent inducement and dismissing so much of the complaint as sought to recover punitive damages.ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants’ cross motion which were for summary judgment dismissing the cause of action alleging fraudulent inducement and dismissing so much of the complaint as sought to recover punitive damages, and substituting therefor a provision denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff, Neil H. Greenberg, and the defendant Advanced Air Ambulance Corp. (hereinafter AAAC) entered into an agreement dated October 18, 2012, pursuant to which AAAC was hired “for the air transport” of the plaintiff’s brother from Puerto Rico to New York on October 20, 2012. The agreement was signed on behalf of AAAC by the defendant Al Meyreles. The agreement provided that a respiratory therapist would accompany the plaintiff’s brother during the transport, that the aircraft would be a “dedicated air ambulance,” and that the aircraft would be equipped with advanced life support medical equipment. According to the plaintiff, he relied upon various representations made by AAAC on its website, as well as representations made by Meyreles during several telephone conversations, that induced him to enter into the agreement. The plaintiff paid the sum of $24,490 to AAAC, and on October 20, 2012, the plaintiff’s brother was transported from San Juan, Puerto Rico, to the Bronx.The plaintiff commenced this action against the defendants, asserting causes of action sounding in breach of contract and fraudulent inducement. He alleged, among other things, that the defendants failed to provide a respiratory therapist, that the air ambulance was an antiquated jet, and that the aircraft was not equipped with advanced life support medical equipment. The plaintiff alleged that this conduct placed his brother in a “potentially life-threatening situation.” He sought to recover the sum of $24,490, as well as punitive damages in connection with his cause of action alleging fraudulent inducement.The plaintiff moved for summary judgment on the cause of action alleging breach of contract insofar as asserted against AAAC. The defendants cross-moved for summary judgment dismissing the complaint. In an order entered December 11, 2014, the Supreme Court, inter alia, denied the plaintiff’s motion, and granted those branches of the defendants’ cross motion which were for summary judgment dismissing the cause of action alleging fraudulent inducement and dismissing so much of the complaint as sought to recover punitive damages. The plaintiff appeals.We reject the defendants’ contention that the appeal should be dismissed as untimely taken. Initially, we note that the defendants did not move to dismiss the appeal on this ground. In any event, there is no evidence in the record as to when, if ever, the order with notice of entry was served upon the plaintiff (see Ross v. Ross Metals Corp., 111 AD3d 695, 697; Zapata v. County of Suffolk, 23 AD3d 553, 554).The Supreme Court erred in granting that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action alleging fraudulent inducement. Contrary to the court’s determination, the cause of action alleging fraudulent inducement was not duplicative of the breach of contract cause of action, as it alleged that the defendants made misrepresentations of present fact that were collateral to the contract and served as an inducement to enter into the contract (see Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 NY2d 954, 956; J & D Evans Constr. Corp. v. Iannucci, 84 AD3d 1171, 1172; WIT Holding Corp. v. Klein, 282 AD2d 527, 528). Contrary to the defendants’ contention, they failed to establish, prima facie, that their alleged misrepresentations of fact were not false and, therefore, not misrepresentations at all (cf. Blagio Rest., Inc. v. C.E. Props., Inc., 127 AD3d 1006, 1008).The Supreme Court also erred in granting that branch of the defendants’ cross motion which was for summary judgment dismissing so much of the complaint as sought to recover punitive damages. The defendants failed to make a prima facie showing that they did not engage in conduct having a high degree of moral culpability which manifested a conscious disregard for the rights of others or conduct so reckless as to amount to such disregard (see Welch v. Mr. Christmas, 57 NY2d 143, 150; Sieger v. Zak, 74 AD3d 1319, 1319-1320; Randi A. J. v. Long Is. Surgi-Ctr., 46 AD3d 74, 85).The Supreme Court properly denied the plaintiff’s motion for summary judgment on the cause of action alleging breach of contract insofar as asserted against AAAC. The plaintiff failed to eliminate questions of fact as to whether AAAC breached the agreement (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).CHAMBERS, J.P., HALL, MALTESE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of Marilyn Tinter, pet, v. Board of Trustees of the Pound Ridge Library District, et al., res — (Index No. 3378/16)Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District, dated September 26, 2016, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of charges of misconduct and incompetence, and terminated her employment as the Director of the Pound Ridge Library.ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as found the petitioner guilty of charges one, three, six, seven, eight, nine, ten, and eleven and specifications six, seven, eight, and nine of charge two is annulled, those charges and specifications are dismissed, the penalty imposed is vacated, the petition is otherwise denied, the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the Board of Trustees of the Pound Ridge Library District for a new consideration of the appropriate penalty to be imposed in accordance herewith, and the imposition of such a penalty thereafter.The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District (hereinafter the Board) adopting the findings of a Hearing Officer that the petitioner was guilty of certain charges of misconduct and incompetence, and terminating her employment. In an order dated April 3, 2017, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).Contrary to the petitioner’s contention, the Board’s minutes reflecting a resolution to appoint the Hearing Officer and a letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board’s president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against the petitioner and on amendments or supplements to the charges as might thereafter be preferred, sufficiently documented the validity of the Hearing Officer’s appointment and satisfied the relevant provisions of Civil Service Law §75(2) (see Matter of McKenzie v. Board of Educ. of the City Sch. Dist. of Albany, 100 AD3d 1096, 1097-1098; Matter of Perryman v. Village of Saranac Lake, 64 AD3d 830, 832-833; Matter of Stafford v. Board of Educ. of Mohonasen Cent. School Dist., 61 AD3d 1259, 1259-1260; Matter of Salley v. Hempstead School Dist., 121 AD2d 547, 548; see also Matter of Ost v. Supervisor of Town of Woodstock, 251 AD2d 724, 726).Civil Service Law §75(2) provides, inter alia, that in a case where a hearing officer is designated, he or she must “make a record of such hearing which shall, with his [or her] recommendations, be referred to [the officer or body having the power to remove the person against whom the charges were preferred] for review and decision.” Individuals “who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges” (Matter of Baker v. Poughkeepsie City School Dist., 18 NY3d 714, 718 [internal quotation marks omitted]). However, “[i]nvolvement in the disciplinary process does not automatically require recusal” (id. at 717 [internal quotation marks omitted]; see Matter of Birch v. County of Madison, 123 AD3d 1324, 1326).Here, the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary (see Matter of Dolan v. New Hyde Park Fire Dept., 137 AD3d 1026, 1028; Matter of Birch v. County of Madison, 123 AD3d at 1326-1327; cf. Matter of Baker v. Poughkeepsie City School Dist., 18 NY3d at 716).Contrary to the petitioner’s contention, the Hearing Officer’s undisclosed participation in another matter involving the Board’s counsel did not compel the Hearing Officer’s disqualification (see Matter of Breton v. Thompson, 200 AD2d 923, 923; cf. Matter of Romeo v. Union Free School Dist., No. 3, Town of Islip, 64 AD2d 664, 666).The petitioner’s contention that the Board’s determination should be annulled because the Board made no independent review of the record lacks merit. The Board had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum, and the petitioner failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion (see Matter of Bruso v. Clinton County, 139 AD3d 1169, 1171; Matter of Perryman v. Village of Saranac Lake, 64 AD3d at 835-836; Matter of McKinney v. Bennett, 31 AD3d 860, 861; Matter of Motell v. Napolitano, 186 AD2d 989, 990; see also Matter of Taub v. Pirnie, 3 NY2d 188, 195).A person holding a position covered by Civil Service Law §75 may not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing (see Civil Service Law §75[1]). In an employee disciplinary case, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 181; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230; Matter of Sassi v. City of Beacon, 145 AD3d 789, 790; Matter of Argenti v. Town of Riverhead, 131 AD3d 1053, 1054; Matter of Jeffery v. Israel, 109 AD3d 543, 544). Here, the Board’s determination that the petitioner was guilty of the misconduct and incompetence alleged in charges four and five and specifications three, four, and five of charge two was supported by substantial evidence. However, so much of the determination as found her guilty of charges one, three, six, seven, eight, nine, ten, and eleven and specifications six, seven, eight, and nine of charge two is not supported by substantial evidence. Moreover, the penalty of termination of the petitioner’s employment for the charges and specifications which were supported by substantial evidence is so disproportionate to the offense as to be shocking to one’s sense of fairness (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of DeStefano v. Board of Coop. Educ. Servs. of Nassau County, 26 AD3d 433, 433-434).The petitioner’s remaining contention is without merit.BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Yaron Hershco res, v. Gordon & Gordon, et al., def, Naidich Wurman Birnbaum & Maday, LLP ap — (Index No. 707935/14)In an action, inter alia, to recover damages for legal malpractice, the defendants Naidich Wurman Birnbaum & Maday, LLP, and Robert P. Johnson appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (McDonald, J.), entered August 20, 2015, as denied that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiffs in this action, Yaron Hershco, United Property Group, LLC, United Homes, LLC, and Galit Network, LLC (hereinafter collectively Hershco-United-Galit), were the defendants in actions brought in the United States District Court for the Eastern District of New York by six home buyers who alleged that they were sold defective and damaged homes that had been represented as “newly renovated.” The federal actions, which were consolidated, were tried before a jury, and a judgment was entered against Hershco-United-Galit. The judgment was affirmed on appeal by the United States Court of Appeals for the Second Circuit. Hershco-United-Galit subsequently commenced this legal malpractice action in the Supreme Court, Queens County, against various attorneys who allegedly represented them in their defense of the federal actions. As relevant here, the defendants Naidich Wurman Birnbaum & Maday, LLP, and Robert P. Johnson (hereinafter together the appellants), moved to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) and (7). The Supreme Court denied that branch of the appellants’ motion which was to dismiss the legal malpractice cause of action insofar as asserted against them.A motion to dismiss on the basis of CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see 413 Throop, LLC v. Triumph, the Church of the New Age, 153 AD3d 1306, 1307). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d 83, 87; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122, 125, affd 16 NY3d 775).“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v. Feinman, 99 NY2d 295, 301-302). ”To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442).Here, as the Supreme Court correctly determined, the allegations in the complaint are sufficient to state a cause of action against the appellants to recover damages for legal malpractice. Accordingly, the appellants were not entitled to dismissal under CPLR 3211(a)(7). Moreover, the appellants were not entitled to dismissal under CPLR 3211(a)(1). The documentary evidence they submitted, which included the orders of the District Court and the federal Court of Appeals, among other things, did not conclusively establish a defense to Hershco-United-Galit’s cause of action alleging legal malpractice. Specifically, the documentary evidence did not conclusively establish that the appellants had no role in representing Hershco-United-Galit at the federal trial and on posttrial motions. Moreover, the documentary evidence failed to conclusively establish that the appellants’ alleged deficiencies were not a proximate cause of Hershco-United-Galit’s unfavorable result in the federal actions.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.MATTER of Nader I. Soliman, ap, v. Suffolk County Department of Public Works, res — (Index No. 19429/15)Nader I. Soliman, West Islip, NY, appellant pro se.Dennis M. Brown, County Attorney, Hauppauge, NY (Drew W. Schirmer of counsel), for respondent.In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated August 12, 2015, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Rebolini, J.), entered February 6, 2017, which denied the petition, dismissed the proceeding, and confirmed the award.ORDERED that the judgment is affirmed, with costs.The petitioner was employed as a Senior Civil Engineer by the respondent, Suffolk County Department of Public Works. In 2014, the petitioner was charged with misconduct for, inter alia, accessing unauthorized websites for non-County use and acting in an immoral manner during working hours, including viewing inappropriate material of a sexually explicit nature. Thereafter, the matter proceeded to consensual arbitration on the charges. Following a hearing, the arbitrator found the petitioner guilty of misconduct and imposed a penalty of termination. Subsequently, the petitioner commenced this proceeding pursuant to CPLR article 75 to vacate the arbitration award. The Supreme Court, in a judgment entered February 6, 2017, denied the petition, dismissed the proceeding, and confirmed the award.“A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence” (Matter of Quality Bldg. Constr., LLC v. Jagiello Constr. Corp., 125 AD3d 973, 973 [citations and internal quotations marks omitted]; see Matter of Subway Surface Supervisors Assn. v. New York City Tr. Auth., 153 AD3d 1264; Matter of Kirchhoff-Consigli Constr. Mgt., LLC v. Mechtronics Corp., 144 AD3d 682, 683). ”A court may vacate an arbitration award on the ground that the arbitrator ‘exceeded his [or her] powers’ within the meaning of CPLR 7511(b)(1)(iii) ‘only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’” (Matter of Romaine v. New York City Tr. Auth., 82 AD3d 986, 987, quoting Matter of New York City Tr. Auth. v. Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336; see Matter of Krausz v. Ashkenazi, 147 AD3d 949, 950). Additionally, “[u]nder CPLR 7511(b)(1)(ii), an arbitration award may be vacated if the rights of a party were prejudiced by the partiality of the arbitrator” (Matter of Reddy v. Schaffer, 123 AD3d 935, 936).Here, the petitioner failed to demonstrate by clear and convincing evidence that the arbitration award should be vacated on the ground that it was irrational. The arbitrator’s determination was supported by evidence in the record, and was not irrational (see Matter of Transit Workers Union, Local 100 v. New York City Tr. Auth., 152 AD3d 530, 531; Matter of Fagan v. Village of Harriman, 140 AD3d 868, 868-869). Furthermore, nothing in the record indicates that the arbitrator exceeded a specifically enumerated limitation on the arbitrator’s power (see Matter of Tarantino v. MTA N.Y. City Tr. Auth., 129 AD3d 738, 739).The petitioner’s remaining contentions are without merit.Accordingly, the Supreme Court properly denied the petition, dismissed the proceeding, and confirmed the award.ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Mastro, J.P.; Chambers, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Julio Soto, ap — (Ind. No. 5/13)Del Atwell, East Hampton, NY, for appellant.Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.), rendered May 5, 2015, convicting him of rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree (two counts), rape in the third degree, criminal sexual act in the third degree, and forcible touching, upon a jury verdict, and sentencing him to determinate terms of imprisonment of 25 years plus 20 years of postrelease supervision on the conviction of rape in the first degree, 25 years plus 20 years of postrelease supervision on the conviction of criminal sexual act in the first degree, 7 years plus 10 years of postrelease supervision on each conviction of sexual abuse in the first degree, 4 years plus 10 years of postrelease supervision on the conviction of rape in the third degree, and 4 years plus 10 years of postrelease supervision on the conviction of criminal sexual act in the third degree, and a definite term of imprisonment of 1 year on the conviction of forcible touching, with the sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and one count of sexual abuse in the first degree to run consecutively to each other, and the remaining sentences to run concurrently.ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentence on the conviction of criminal sexual act in the first degree shall run concurrently with the other sentences; as so modified, the judgment is affirmed.The defendant’s contention that the evidence was legally insufficient to support his conviction of rape in the first degree in unpreserved for appellate review (see People v. Hawkins, 11 NY3d 484, 492). In any event, his contention is without merit. The testimony of the complainant that the defendant laid on top of her so that she could not move and forced her to engage in sexual intercourse with him established sexual intercourse by forcible compulsion (see Penal Law §§130.35[1]; 130.00[8]; People v. Hodges, 204 AD2d 739). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt of rape in the first degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633). While no rape kit or vaginal examination of the complainant was conducted, the examining doctor explained that such would have been futile at the time the complainant presented, three days after the alleged rape. In any event, a lack of physical injuries as a result of a sexual attack does not necessarily render the verdict against the weight of the evidence (see People v. Williams, 259 AD2d 509). Moreover, the complainant’s testimony was corroborated by the account of the school counselor to whom she disclosed the rape, and the presence of the defendant’s semen on her sweatpants.The defendant’s contention that the examining doctor’s failure to conduct a vaginal examination on the complainant deprived him of due process is unpreserved for appellate review (see CPL 470.05[2]). In any event, his contention is without merit. The defendant did not show that the police failed to preserve potentially useful evidence in bad faith (see Arizona v. Youngblood, 488 US 51, 58).Contrary to the defendant’s contention, the County Court lawfully imposed consecutive sentences of imprisonment on the convictions of rape in the first degree and criminal sexual act in the first degree because they were “separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident” (People v. Wynn, 35 AD3d 283, 284; see Penal Law §70.25[2]; People v. Laureano, 87 NY2d 640, 643; People v. Pena, 126 AD3d 618, affd 28 NY3d 727; People v. Houston, 73 AD3d 1081; People v. Rodriguez, 49 AD3d 433, 435; People v. Telford, 134 AD2d 632, 633).The defendant failed to preserve for appellate review his contention that the sentence imposed improperly penalized him for exercising his right to trial (see People v. Hurley, 75 NY2d 887, 888). In any event, “the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for exercising his right to trial” (People v. Ray, 100 AD3d 933, 934; see People v. Pena, 50 NY2d 400, 411-412). In imposing sentence, the County Court relied on the appropriate factors, including the nature of the crime, the defendant’s failure to accept responsibility or show remorse, and the safety of the community (see Penal Law §70.80[2]; People v. Clark, 129 AD3d 1, 26, affd 28 NY3d 556; People v. Suitte, 90 AD2d 80, 83-84).However, the sentence imposed was excessive to the extent indicated herein.MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Austin and Iannacci, JJ.Yaron Hershco ap, v. Gordon & Gordon, et al., respondents def — (Index No. 707935/14)In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County (McDonald, J.), dated March 18, 2015, which granted the motion of the defendants Gordon & Gordon, Peter S. Gordon, and Peter S. Thomas pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.ORDERED that the order is affirmed, with costs.The plaintiffs in this action retained the defendants Gordon & Gordon, Peter S. Gordon, and Peter S. Thomas (hereinafter collectively the Gordon defendants), as trial counsel to defend the plaintiffs in actions brought in the United States District Court for the Eastern District of New York (hereinafter the federal actions). The retainer agreement provided that the Gordon defendants were retained “in order to secure a jury verdict” in the federal actions. The federal actions were consolidated, and a jury verdict was rendered in the federal actions on June 1, 2011. On October 27, 2014, the plaintiffs commenced this action against, among others, the Gordon defendants, who moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. The Supreme Court granted that motion, and the plaintiffs appeal.The Supreme Court properly granted the motion of the Gordon defendants pursuant to CPLR 3211(5)(a) to dismiss the complaint insofar as asserted against them as time-barred. The statute of limitations applicable to actions sounding in legal malpractice is three years “regardless of whether the underlying theory is based in contract or tort” (CPLR 214[6]). The limitations period begins to run from the time of the alleged malpractice (see Shumsky v. Eisenstein, 96 NY2d 164, 166).Here, the plaintiffs’ claims against the Gordon defendants could have accrued no later than June 2011. Contrary to the plaintiffs’ contention, the statute of limitations was not tolled beyond this date by the continuous representation doctrine, or otherwise (see Tsafatinos v. Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, this action, commenced on or about October 27, 2014, was untimely.In light of our determination, the plaintiffs’ remaining contention has been rendered academic.BALKIN, J.P., LEVENTHAL, AUSTIN and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Cohen and Brathwaite Nelson, JJ.Walter Sakow, individually and on behalf of Mawash Realty Corp., res, v. Michael Waldman, individually and as executor of the estate of Sherwood Waldman, def, Mawash Realty Corp., ap — (Index No. 15752/08)Appeals from (1) an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered June 18, 2015, and (2) a money judgment of that court entered September 8, 2015. The order granted the plaintiff’s motion pursuant to Business Corporation Law §626(e) for an award of an attorney’s fee. The money judgment, upon the order, is in favor of the plaintiff and against the nominal defendant, Mawash Realty Corp., in the total sum of $324,204.ORDERED that the appeal from the order is dismissed, without costs or disbursements, as the order was superseded by the money judgment; and it is further,ORDERED that the appeal from the money judgment is dismissed as academic, without costs or disbursements, as the money judgment was vacated by a subsequent order of the same court entered February 18, 2016, made upon renewal (see Sakow v. Waldman, __ AD3d __ [Appellate Division Docket No. 2016-03742; decided herewith]).LEVENTHAL, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Austin, Cohen and Brathwaite Nelson, JJ.Walter Sakow, individually and on behalf of Mawash Realty Corp., res, v. Michael Waldman, individually and as executor of the estate of Sherwood Waldman, def, Mawash Realty Corp., ap — (Index No. 15752/08)Appeal from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered February 18, 2016. The order, insofar as appealed from, upon renewal, granted the plaintiff’s motion pursuant to Business Corporation Law §626(e) for an award of an attorney’s fee to the extent of awarding an attorney’s fee in the sum of $300,000, which previously had been granted in an order of that court entered June 18, 2015, to the extent of awarding an attorney’s fee in the sum of $324,204.ORDERED that the order entered February 18, 2016, is reversed insofar as appealed from, on the law, with costs, upon renewal, the plaintiff’s motion pursuant to Business Corporation Law §626(e) for an award of an attorney’s fee is denied, and the order entered June 18, 2015, is vacated.The plaintiff, Walter Sakow, individually and on behalf of Mawash Realty Corp. (hereinafter Mawash), commenced this action against the defendant Michael Waldman and Mawash, asserting, inter alia, a cause of action for an accounting. Following a nonjury trial, the Supreme Court issued a judgment awarding damages only to Sakow, individually. On a prior appeal, this Court modified the judgment by, among other things, awarding damages to Mawash on a cause of action asserted derivatively on its behalf by Sakow, and remitted the matter to the Supreme Court for the entry of an amended judgment (see Sakow v. Waldman, 124 AD3d 860).Sakow then moved pursuant to Business Corporation Law §626(e) for an award of an attorney’s fee from Mawash. In an order entered June 18, 2015, the Supreme Court granted the motion to the extent of awarding Sakow an attorney’s fee from Mawash in the sum of $324,204. On September 8, 2015, the court entered a money judgment upon the order. Mawash appealed from the order and the money judgment. For the reasons set forth in our decision and order on the related appeals, those appeals have been dismissed (see Sakow v. Waldman, __ AD3d __ [Appellate Division Docket No. 2015-08507; decided herewith]).Subsequently, Mawash moved for leave to renew its opposition to Sakow’s motion for an award of an attorney’s fee, arguing that it had recently discovered that Sakow was not a shareholder of Mawash when this action was commenced and, therefore, that he lacked standing to commence a derivative action and was not entitled to an award of an attorney’s fee under Business Corporation Law §626(e). In opposition, Sakow did not dispute that he had transferred his shares of Mawash to nonparty Mawash Realty Trust (hereinafter the Trust) more than two years before this action was commenced. However, Sakow asserted that he had standing to initiate the derivative action because he was acting as a nominee of the Trust. Upon granting renewal, the Supreme Court adhered to its determination that Sakow was entitled to an award of an attorney’s fee under Business Corporation Law §626(e), but lowered the award to the sum of $300,000 and vacated the money judgment. Mawash appeals.Business Corporation Law §626(e) provides, in pertinent part: “If the action on behalf of the corporation was successful, in whole or in part, the court may award the plaintiff… reasonable expenses, including reasonable attorney’s fees.” To be entitled to an award of an attorney’s fee under Business Corporation Law §626(e), a plaintiff must meet all of the requirements for standing to bring a derivative action on behalf of the corporation (see Central Laborers’ Pension Fund v. Blankfein, 111 AD3d 40, 46). These requirements include that the plaintiff be a “holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates” (Business Corporation Law §626[a]) at the time of the challenged transaction and at the time the action was commenced (see Business Corporation Law §626[b]).Here, upon renewal, the Supreme Court erred in determining that Sakow was entitled to an award of an attorney’s fee under Business Corporation Law §626(e). At the time this action was commenced, Sakow was not a holder of shares or of voting trust certificates of Mawash, and he did not have a beneficial interest in such shares or certificates. Accordingly, Sakow did not have standing to commence a derivative action (see generally Zentz v. International Foreign Exch. Concepts, L.P., 106 AD3d 904). While Sakow contends that, as nominee of the Trust, he could have commenced a derivative action on Mawash’s behalf, that was not the capacity in which he initiated the instant action. Since Sakow failed to satisfy the standing requirements for a derivative action, he was not entitled to an award of an attorney’s fee (see generally Central Laborers’ Pension Fund v. Blankfein, 111 AD3d at 46-47). Accordingly, upon renewal, the Supreme Court should have denied Sakow’s motion for an award of an attorney’s fee.LEVENTHAL, J.P., AUSTIN, COHEN and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Maltese, Barros and Connolly, JJ.Suzanne Elizabeth Keceli, ap, v. Yonkers Racing Corporation, doing business as Yonkers Raceway res — (Index No. 50691/13)In an action, inter alia, to recover damages for employment discrimination on the basis of sexual orientation and unlawful retaliation in violation of Executive Law §296, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated June 25, 2015, as granted those branches of the defendants’ motion which were for summary judgment dismissing the first and second causes of action.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff alleged that she is an openly gay woman who was employed as a peace officer at the Empire City Casino and was subjected to persistent and severe discriminatory comments and conduct by other employees and her supervisors. She further alleged that after she complained about these comments and conduct, she was subjected to incidences of retaliation. She commenced this action against her employer and individual supervisors, alleging, inter alia, employment discrimination/hostile work environment on the basis of sexual orientation and unlawful retaliation in violation of Executive Law §296(1) and (7). After discovery, the defendants moved for summary judgment dismissing the amended complaint. In the order appealed from, the Supreme Court granted the defendants’ motion. On appeal, the plaintiff challenges so much of the order as granted those branches of the defendants’ motion which were for summary judgment dismissing the employment discrimination/hostile work environment and unlawful retaliation causes of action.A plaintiff alleging employment discrimination based upon sexual orientation has the initial burden to establish a prima facie case of discrimination. To establish intentional discrimination, the “plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination” (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305). The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision (see id. at 305). In order to succeed on such claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason (see id.). To establish entitlement to summary judgment in a case alleging discrimination, the defendants must demonstrate either the plaintiff’s inability to establish every element of intentional discrimination, or, having offered a legitimate, nondiscriminatory reason for the challenged action, the absence of a material issue of fact as to whether that reason was pretextual (see id.; Radler v. Catholic Health Sys. of Long Is., Inc., 144 AD3d 781, 782).Here, the defendants met their prima facie burden by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 305). In opposition, the plaintiff failed to raise a triable issue of fact (see Mendelsohn v. New York Racing Assn., Inc., 134 AD3d 914; Cotterell v. State of New York, 129 AD3d 653). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, alleging employment discrimination/hostile work environment.In order to make out a cause of action alleging unlawful retaliation, the “plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” (Forrest v. Jewish Guild for the Blind, 3 NY3d at 312-313). In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Burlington N. & S. F. R. Co. v. White, 548 US 53, 68). ”To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” (Delrio v. City of New York, 91 AD3d 900, 901; see Forrest v. Jewish Guild for the Blind, 3 NY3d at 313-314; Langton v. Warwick Val. Cent. Sch. Dist., 144 AD3d 867).Here, the defendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the plaintiff (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 313-314). In opposition, the plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which she engaged and any adverse employment action. Merely pointing to the sequence in time of events is insufficient to establish a causal connection between the plaintiff’s complaints of sexual orientation discrimination and any adverse employment action (see Chojar v. Levitt, 773 F Supp 645, 655 [SD NY]; see also Feliciano v. Alpha Sector, Inc., 2002 WL 1492139, *12, 2002 US Dist LEXIS 12631, *35 [SD NY, July 12, 2002, No. 00 CIV. 9309(AGS)]). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action, alleging unlawful retaliation.BALKIN, J.P., MALTESE, BARROS and CONNOLLY, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.MATTER of JaRell D. F. (Anonymous). Graham Windham Services to Families and Children, res; Charlence E. H. (Anonymous), ap — (Docket No. B-7893-14)Appeal by the mother from an order of fact-finding and disposition of the Family Court, Kings County (Barbara Salinitro, J.), dated March 14, 2016. The order, after fact-finding and dispositional hearings, and upon the mother’s default in appearing at the dispositional hearing, found that the mother permanently neglected the subject child, terminated her parental rights, and transferred custody and guardianship of the subject child to the Commissioner of Social Services of the City of New York and the petitioner for the purpose of adoption.ORDERED that the appeal from so much of the order of fact-finding and disposition as terminated the mother’s parental rights and freed the child for adoption, upon her default in appearing at the dispositional hearing, is dismissed, without costs or disbursements; and it is further,ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.The petitioner commenced this proceeding to terminate the mother’s parental rights to the subject child on the ground of permanent neglect. The mother appeared for a portion of the fact-finding hearing and testified on her own behalf. However, she defaulted in appearing at the dispositional hearing.After the fact-finding and dispositional hearings, the Family Court found that the mother had permanently neglected the child, terminated her parental rights, and transferred custody and guardianship of the child to the Commissioner of Social Services of the City of New York and the petitioner for the purpose of adoption. The mother appeals.Contrary to the mother’s contention, at the fact-finding hearing, the petitioner established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen her relationship with the child, in a manner specifically tailored to her individual situation (see Social Services Law §384-b[7][a]; [3][g][i]; Matter of Hailey ZZ. [Ricky ZZ.], 19 NY3d 422, 429; Matter of Sheila G., 61 NY2d 368, 380-381). These efforts included, inter alia, making repeated referrals to mental health services, following up with and encouraging the mother’s compliance with those programs, and attempting to facilitate visitation (see Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d 1119, 1119-1120; Matter of Lierre J.M. [Melissa L.D.], 150 AD3d 1009, 1010; Matter of Tsulyn R.A. [Deborah A.], 135 AD3d 935). Despite the petitioner’s diligent efforts to encourage and strengthen the parent-child relationship, the mother failed to regularly visit the child or plan for his future. Accordingly, the Family Court properly found that the mother permanently neglected the child (see Matter of Shaquan D.M. [Shaquanna M.], 150 AD3d at 1119-1120; Matter of Lierre J.M. [Melissa L.D.], 150 AD3d at 1010; Matter of Tsulyn R.A. [Deborah A.], 135 AD3d at 935).The mother may not appeal from the dispositional portion of the order of fact-finding and disposition in light of her default in appearing at the dispositional hearing (see Matter of Male G. [David D.], 121 AD3d 789, 790; Matter of Jahira N.D. [Shaniqua S.S.], 111 AD3d 826, 826-827). Accordingly, her appeal from that portion of the order of fact-finding and disposition must be dismissed.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Eng, P.J.; Roman, Miller and Christopher, JJ.Elyse Josephs res, v. AACT Fast Collections Services, Inc. def, Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C. ap — (Index No. 502491/12)William Pager, Brooklyn, NY, for respondents.Appeals from (1) an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated August 11, 2015, and (2) stated portions of an order of that court (Carolyn E. Wade, J.) dated March 16, 2016. The order dated August 11, 2015, insofar as appealed from, granted those branches of the plaintiffs’ motion which were for leave to amend the caption of the action to add Leon Lubarsky and Rada Tarnovsky as additional defendants. The order dated March 16, 2016, inter alia, denied the unopposed motion of the defendants Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C., Leon Lubarsky, and Rada Tarnovsky pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against them for lack of personal jurisdiction.ORDERED that the order dated August 11, 2015, is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the order dated March 16, 2016, is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C., Leon Lubarsky, and Rada Tarnovsky which were pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against the defendants Leon Lubarsky and Rada Tarnovsky for lack of personal jurisdiction, and substituting therefor provisions granting those branches of the motion; as so modified, the order dated March 16, 2016, is affirmed insofar as appealed from, without costs or disbursements.The plaintiffs commenced this action, inter alia, to recover damages for legal malpractice against Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C. (hereinafter L&T), and another defendant by summons and complaint filed August 23, 2012. On or about December 9, 2014, the plaintiffs moved for leave to amend the caption of the action to add Leon Lubarsky, Rada Tarnovsky, and another person as additional defendants. Lubarsky and Tarnovsky opposed the motion, arguing that the statute of limitations had elapsed. In reply, the plaintiffs contended that the relation-back doctrine applied. In an order dated August 11, 2015, the Supreme Court, inter alia, granted those branches of the plaintiffs’ motion which were for leave to amend the caption to add Lubarsky and Tarnovsky as defendants and directed the plaintiffs to serve the amended complaint upon all parties within 20 days of the order. Lubarsky and Tarnovsky appeal.Thereafter, L&T, Lubarsky, and Tarnovsky moved pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against them for lack of personal jurisdiction. The plaintiffs did not oppose the motion. In an order dated March 16, 2016, the Supreme Court, inter alia, denied the motion. L&T, Lubarsky, and Tarnovsky appeal.As to the order dated August 11, 2015, the Supreme Court properly granted those branches of the plaintiffs’ motion which were for leave to amend the caption to add Lubarsky and Tarnovsky as additional defendants, since the plaintiffs established the applicability of the relation-back doctrine (see Castagna v. Almaghrabi, 117 AD3d 666, 667; Austin v. Interfaith Med. Ctr., 264 AD2d 702, 703-704). Therefore, the August 11, 2015, order must be affirmed insofar as appealed from.As to the order dated March 16, 2016, the Supreme Court should have granted those branches of the motion of L&T, Lubarsky, and Tarnovsky which were pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against Lubarsky and Tarnovsky for lack of personal jurisdiction. The affidavits of service filed by the plaintiffs, indicating that they attempted to effect service of the supplemental summons and amended complaint upon Lubarsky and Tarnovsky pursuant to CPLR 308(2), fail to indicate that the process server mailed the supplemental summons to either of these defendants. ”Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with” (Gray-Joseph v. Shuhai Liu, 90 AD3d 988, 989; see Washington Mut. Bank v. Murphy, 127 AD3d 1167, 1174). Therefore, the affidavits of service did not establish, prima facie, that service was properly effected pursuant to CPLR 308(2) (see Daguerre, S.A.R.L. v. Rabizadeh, 112 AD3d 876, 878-879; cf. Roberts v. Anka, 45 AD3d 752, 753-754). We note that “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” (Raschel v. Rish, 69 NY2d 694, 697; see County of Nassau v. Letosky, 34 AD3d 414, 415; Long Is. Sav. Bank v. Meliso, 229 AD2d 478). Since the plaintiffs failed to submit any evidence that the requirements for service of process were met with respect to Lubarsky and Tarnovsky, the court should have directed the dismissal of the amended complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(8).With respect to L&T, however, the record includes an affidavit of service from a process server indicating that service upon L&T in this action was effected by delivery of the original summons and complaint to the Secretary of State, which creates a presumption of proper service on L&T (see CPLR 311[a][1]; Business Corporation Law §306; Thas v. Dayrich Trading, Inc., 78 AD3d 1163, 1164). Since L&T did not submit any evidence to rebut this prima facie showing of proper service, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against L&T for lack of personal jurisdiction.The remaining contention need not be reached in light of our determination.ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.By Eng, P.J.; Rivera, Roman and Connolly, JJ.Alex Demetriades, ap, v. James Kalpakis, def, Bette Kalpakis, res — (Index No. 21842/10)In an action, inter alia, to recover damages for unjust enrichment, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Parga, J.), entered April 23, 2015, which, upon the granting of the motion of the defendant Bette Kalpakis pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the plaintiff’s case, is in favor of the defendant Bette Kalpakis and against him dismissing the complaint insofar as asserted against that defendant.ORDERED that the judgment is affirmed, with costs.The plaintiff commenced this action against the defendant James Kalpakis (hereinafter James) and his wife, the defendant Bette Kalpakis (hereinafter Bette). The complaint alleged, inter alia, that James fraudulently induced the plaintiff to give him $825,000 to purchase real property that was purportedly in foreclosure, but was, in reality, already owned by Bette and not in foreclosure. The plaintiff also alleged that James siphoned more than $2,000,000 from the plaintiff’s investment account for various fraudulent transactions. The plaintiff asserted, inter alia, that Bette was unjustly enriched by James’s illegal and fraudulent conduct.A nonjury trial was held solely on the cause of action alleging unjust enrichment against Bette. At the close of the plaintiff’s case, Bette moved pursuant to CPLR 4401 for judgment as a matter of law. The Supreme Court granted the motion, and a judgment was entered in favor of Bette and against the plaintiff dismissing the complaint insofar as asserted against her. The plaintiff appeals.“A cause of action for unjust enrichment requires a showing that (1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) that it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff” (Clifford R. Gray, Inc. v. LeChase Constr. Servs., LLC, 31 AD3d 983, 987-988; see Dee v. Rakower, 112 AD3d 204, 213-214). ”The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Paramount Film Distrib. Corp. v. State of New York, 30 NY2d 415, 421).The Supreme Court properly granted Bette’s motion pursuant to CPLR 4401 for judgment as a matter of law. Viewing the evidence in the light most favorable to the plaintiff, and affording him every favorable inference which reasonably could be drawn therefrom (see Szczerbiak v. Pilat, 90 NY2d 553, 556), the plaintiff failed to demonstrate that Bette was unjustly enriched at the plaintiff’s expense (see Tarleton v. Astor Galleries, Ltd., 70 AD3d 811, 812; Clifford R. Gray, Inc. v. LeChase Constr. Servs., LLC, 31 AD3d at 988). The plaintiff conceded that he had no evidence that Bette had an interest in any entity which may have received the plaintiff’s funds. Moreover, there was no evidence that Bette was enriched by the money that the plaintiff gave to James to purchase Bette’s property. It would require impermissible speculation to find a connection between any money or property held by Bette and the plaintiff’s stolen funds (see Tarleton v. Astor Galleries, Ltd., 70 AD3d at 812).ENG, P.J., RIVERA, ROMAN and CONNOLLY, JJ., concur.By Eng, P.J.; Roman, Miller and Christopher, JJ.Ronald and Linda Hohwald, ap, v. Farm Family Casualty Insurance Company, res — (Index No. 4446/15)In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Pitts, J.), entered August 11, 2016, which, upon an order of the same court dated September 16, 2015, granting the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint, is in favor of the defendant and against them dismissing the complaint.ORDERED that the judgment is affirmed, with costs.The defendant, Farm Family Casualty Insurance Company (hereinafter Farm Family), issued a policy insuring the plaintiffs’ home during the time period from August 21, 2012, through August 21, 2013. The policy provided that any action brought against Farm Family had to be commenced within two years after the occurrence causing the loss or damage. The complaint alleged that the property was damaged on October 29, 2012, as a result of “Hurricane or Super Storm Sandy.” On November 1, 2012, the plaintiffs submitted a claim to Farm Family for the loss and damage to the property, and on March 10, 2014, Farm Family denied the claim. The plaintiffs then commenced this action against Farm Family on March 13, 2015. Farm Family moved, inter alia, pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint based upon documentary evidence and on the ground that the action was time-barred. The Supreme Court granted the motion and entered judgment in favor of the defendant and against the plaintiffs dismissing the complaint. The plaintiffs appeal.” A party seeking dismissal on the ground that its defense is founded on documentary evidence under CPLR 3211(a)(1) has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Botach Mgt. Group v. Gurash, 138 AD3d 771, 772 [internal quotation marks omitted]; see Fontanetta v. John Doe 1, 73 AD3d 78, 83; Sullivan v. State of New York, 34 AD3d 443, 453). For evidence to be considered documentary, it “must be unambiguous and of undisputed authenticity” (Fontanetta v. John Doe 1, 73 AD3d at 86). Contracts are among the documents that qualify as documentary evidence (see id. at 84-85).“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable limitations period, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Botach Mgt. Group v. Gurash, 138 AD3d at 773 [internal quotation marks omitted]; see QK Healthcare, Inc. v. InSource, Inc., 108 AD3d 56, 65).Here, the insurance policy contained a clear and unambiguous provision that provided for a limitations period of two years from the date of the occurrence causing the loss or damage in which to commence an action against Farm Family. The documentary evidence conclusively established that this action was time-barred because it was commenced subsequent to the expiration of the two-year limitations period contained in the insurance policy.The plaintiffs’ contention regarding equitable estoppel is improperly raised for the first time on appeal (see Botach Mgt. Group v. Gurash, 138 AD3d at 774).Accordingly, the Supreme Court properly granted Farm Family’s motion pursuant to CPLR 3211(a) to dismiss the complaint.In light of our determination, the plaintiffs’ remaining contention need not be reached.ENG, P.J., ROMAN, MILLER and CHRISTOPHER, JJ., concur.
