Appellate Advocates (Nao Terai, Esq.), for appellant.Kings County District Attorney (Leonard Joblove, Camille O’Hara Gillespie of counsel), for respondent.2015-439 K CR. THE PEOPLE v. EVANS, ARNOLD — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Stephen M. Antignani, J.), rendered January 30, 2015. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017By: Weston, J.P., Pesce, Solomon, JJ.Michael H. Zhu, Esq., for appellant.The Bernstein Law Firm (Michael I. Bernstein, Esq.), for respondent.2015-1369 Q C. JACOBS v. FARKAS — Appeal from a judgment of the Civil Court of the City of New York, Queens County, entered April 16, 2015. The judgment dismissed the action. The appeal from the judgment brings up for review an order of the same court (William A. Viscovich, J.) dated January 3, 2013 denying plaintiff’s motion to restore the action to the calendar.ORDERED that the judgment is reversed, without costs, and the provision dismissing the action is vacated.Plaintiff commenced this action in the Supreme Court, Queens County, to recover the principal sum of $95,000 based on a promissory note. The Supreme Court transferred the action to the Civil Court pursuant to CPLR 325 (d) on December 16, 2011. When plaintiff failed to appear at a conference on February 6, 2012, the Civil Court marked the case off the calendar. Thereafter, by order dated March 29, 2012, the Civil Court (Barry A. Schwartz, J.) restored the action to the trial calendar on consent. On September 12, 2012, when plaintiff failed to appear at a scheduled conference, the court (Charles S. Lopresto, J.) marked the action off the calendar. Plaintiff moved to restore the action to the calendar. By order dated January 3, 2013, the court (William A. Vischovich, J.) denied the motion, with leave to renew upon proper papers. Plaintiff’s subsequent motion to restore the action to the calendar was denied by order of the Civil Court (Maureen A. Healy, J.) dated February 26, 2013, on the ground that plaintiff had not presented sufficient evidence to support his excuse for failing to appear in court on September 12, 2012. In January 2014, plaintiff moved for leave to renew and reargue the orders dated January 3, 2013 and February 26, 2013. By order dated April 9, 2013, the court (William A. Viscovich, J.), upon granting leave to renew and reargue, denied plaintiff’s motion to restore the action to the calendar. Finally, in July 2014, plaintiff moved again, in effect, for leave to reargue. By order dated August 20, 2014, the court (Cheree A. Buggs, J.), in effect, denied leave to reargue. A judgment was entered on April 16, 2015 dismissing the action.On appeal, plaintiff contends that the judgment should be reversed and the action restored to the calendar. In his brief, plaintiff raises issues that concern only the judgment and the orders dated January 3, 2013 and August 20, 2014.Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) §208.14 (b) (2), a court may dismiss an action when a plaintiff is unable to proceed to trial at the call of the calendar (see Chen v. Hossain, 41 Misc 3d 142[A], 2013 NY Slip Op 52022[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also Fink v. Antell, 19 AD3d 215 [2005]). When plaintiff failed to appear on September 12, 2012, the Civil Court marked the case off the calendar, but did not dismiss the action. Consequently, the judgment entered April 16, 2015 dismissing the action must be reversed since no order has been issued pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) §208.14 (b) (2) dismissing the action, and no motion has been made for the entry of a judgment dismissing the action.Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) §208.14 (c), when an action has been stricken from the calendar, a party may move within a year to restore the action to the calendar, which motion “must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.”Here, plaintiff’s initial affidavit, dated December 12, 2012, in support of the motion to restore the action to the calendar contains neither an explanation as to why the action had been stricken nor a showing that it was presently ready for trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] §208.14 [c]; Gaetane Physical Therapy, P.C. v. Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, plaintiff’s motion was properly denied in the order of the Civil Court (William A. Viscovich, J.) entered January 3, 2013.We note that the contention raised in plaintiff’s brief regarding the order (Cheree A. Buggs, J.) dated August 20, 2014, which, in effect, denied leave to reargue plaintiff’s motion to restore the action to the calendar, is not reviewable on this appeal from the judgment that was subsequently entered (see CPLR 5517 [b]; Goldberg v. Zawada, 36 AD3d 756 [2007]; Chateau D’ If Corp. v. City of New York, 219 AD2d 205, 207 [1996]; Mucciola v. City of New York, 207 AD2d 435 [1994]).Accordingly, the judgment is reversed and the provision dismissing the action is vacated.WESTON, J.P., PESCE and SOLOMON, JJ., concur.December 1, 2017By: Solomon, J.P., Pesce, Elliot, JJ.New York City Legal Aid Society (Joanne Legano Ross, Esq.), for appellant.Kings County District Attorney (Leonard Joblove, Solomon Neubort of counsel), for respondent.2015-1377 K CR. THE PEOPLE v. ROJAS, SULTANA — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered April 27, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).SOLOMON, J.P., PESCE and ELLIOT, JJ., concurDecember 1, 2017New York City Legal Aid Society (Joanne Legano Ross, Esq.), for appellant.Queens County District Attorney (John M. Castellano, Johnnette Traill, Jonathan K. Yi of counsel), for respondent.2015-1385 Q CR. THE PEOPLE v. ELLSWORTH, HANNAH T. — Appeal by defendant, as limited by her brief, from sentences of the Criminal Court of the City of New York, Queens County (Ernest F. Hart, J.), imposed May 6, 2015, upon her convictions of disorderly conduct and speeding, upon her pleas of guilty.ORDERED that the sentences are affirmed.On February 8, 2015, the People charged defendant, in an information, with driving while intoxicated (per se) (Vehicle and Traffic Law §1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law §1192 [3]), and speeding (Vehicle and Traffic Law §1180 [d]). The accusatory instrument alleged, essentially, that after being stopped on the Long Island Expressway for traveling 75 miles per hour in a 50 miles-per-hour speed zone, defendant exhibited several physical indicia of alcohol intoxication and admitted that she had consumed three beers. A chemical test of her blood alcohol content produced a reading of.10 of one per centum by weight.On May 6, 2015, defendant appeared with her counsel before Criminal Court Judge Ernest F. Hart, and, pursuant to a negotiated plea and sentencing agreement, pleaded guilty to disorderly conduct (Penal Law §240.20) and speeding, in satisfaction of the information, with the understanding that she would be sentenced to, among other things, a $250 fine on the disorderly conduct conviction and a $75 fine on the speeding conviction. Defendant was sentenced accordingly.Defendant now seeks relief from the fines on the ground of indigence, citing the fact that she was represented in the trial court by assigned counsel.There is no dispute that defendant, assisted by counsel, was sentenced according to the express terms of a highly favorable negotiated plea and sentencing agreement (see People v. Farrar, 52 NY2d 302, 307 [1981] ["(T)he 'sentence bargain' is a legitimate part of the plea bargaining process"]). Such circumstances normally preclude claims that the sentences are unduly harsh or excessive (see People v. Galvez, 72 AD3d 838, 838 [2010] ["The defendant pleaded guilty with the full understanding that he would receive the sentence actually imposed and, therefore, he has no basis now to complain that the sentence imposed is excessive"]; People v. Kazepis, 101 AD2d 816 [1984] [same]; see also People v. Ubiles, 59 AD3d 572 [2009]; People v. Colin, 56 Misc 3d 141[A], 2017 NY Slip Op 51119[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).Although this court retains the authority to modify sentences in the interest of justice (see CPL 470.15 [6] [b]; People v. Delgado, 80 NY2d 780, 783 [1992]; People v. Perez-Vazquez, 55 Misc 3d 135[A], 2017 NY Slip Op 50485[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the record does not establish the presence of “mitigating or extraordinary circumstances” that would justify the partial or complete vacatur of the fines (People v. Vega, 73 AD3d 1218, 1219 [2010]; see e.g. People v. Jackson, 49 Misc 3d 134[A], 2015 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). The fact that defendant was represented by assigned counsel is insufficient, standing alone, to merit the inference that she is unable to pay the fines (see People v. Watson, 90 AD3d 1666, 1668 [2011]; People v. Onyeukwu, 56 Misc 3d 140[A], 2017 NY Slip Op 51100[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, we find no basis to disturb the sentences.The determination herein is without prejudice to defendant moving in the Criminal Court, if she be so advised, for relief from the fines (see CPL 420.10 [5]; e.g. People v. Toledo, 101 AD3d 571 [2012]; People v. Perez, 56 Misc 3d 126[A], 2017 NY Slip Op 50795[U] [App Term, 1st Dept 2017]; People v. Ricchiuti, 55 Misc 3d 148[A], 2017 NY Slip Op 50712[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).Accordingly, the sentences are affirmed.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017By: Aliotta, J.P., Pesce, Solomon, JJ.New York City Legal Aid Society (Steven Berko, Esq.), for appellant.Richmond County District Attorney (Morrie I. Kleinbart, Alexander Fumelli of counsel), for respondent.2015-2316 RI CR. THE PEOPLE v. SCIRE, GIUSEPPE — Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raymond Rodriguez, J.), rendered August 31, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree. The appeal from the judgment of conviction brings up for review the denial (Raymond Rodriguez, J.) after a hearing (Judith Levitt, J.H.O.) of defendant’s motion to suppress a statement and physical evidence.ORDERED that the judgment of conviction is affirmed.On June 17, 2014, the People charged defendant in an information with criminal possession of a controlled substance in the seventh degree (Penal Law §220.03), in that, on May 13, 2014, at 1:43 a.m. at 1235 Woodrow Road, Richmond County, New York, defendant possessed 11 glassine envelopes containing heroin which defendant “had…in his right hand.” According to the People’s CPL 710.30 notice, defendant said to the arresting officer, “It’s dope.”Defendant moved to suppress the statement and physical evidence. At a hearing (Judith Levitt, J.H.O.), the arresting officer testified that he and another officer traveling on Woodrow Road in Staten Island in the early morning hours, observed a vehicle parked on the opposite side of the road, with the engine and lights on and two persons inside, both of whom appeared to be “passed out.” The officers parked and approached the vehicle, one to either side. Examining the interior with a flashlight, the arresting officer saw defendant and a female passenger asleep in their seats.In defendant’s right hand, the officer observed a number of glassine envelopes, tightly packaged together, which, in the officers’s training and experience, contained heroin. Upon being awakened by the officer’s knock on the car window, defendant, startled, quickly placed the contraband in his right pants pocket. Defendant testified that the contraband was never in plain view and was only discovered pursuant to the arresting officer’s subsequent, illegal search of his person. The judicial hearing officer credited the officer’s testimony and denied suppression, a ruling confirmed by the Criminal Court (Raymond Rodriguez, J.). On August 31, 2015, defendant pleaded guilty to the offense and was sentenced, as promised, to time served.On appeal, defendant argues that the arresting officer’s testimony, particularly with respect to the observation of the contraband upon the officer’s initial approach, was inherently incredible, contrary to practical experience, and “patently tailored to nullify constitutional objections” (People v. Giler, 148 AD3d 1053, 1053 [2017]). However, a hearing court’s determinations as to matters of the credibility of witnesses for either party “are accorded great deference on appeal and will not be disturbed unless clearly unsupported by the record” (People v. McKenzie, 148 AD3d 936, 937 [2017]; see People v. Prochilo, 41 NY2d 759, 761 [1977]). The officer’s testimony was internally consistent both generally and with respect to detail, and it cannot be said that it was so “manifestly untrue, physically impossible, contrary to experience or self-contradictory” as to render it incredible as a matter of law (People v. Barnes, 129 AD3d 981, 982 [2015]; People v. Nunez, 55 Misc 3d 130[A], 2017 NY Slip Op 50385[U], *1 [App Term, 1st Dept 2017] [same]). That defendant fell asleep with contraband in his open hand is not so implausible as to defy belief. Indeed, defendant’s witness, the female passenger, testified that the officer’s search, upon defendant’s exit from his automobile, was first and immediately directed to the contents of defendant’s right pants pocket, inferentially, because the officer knew what was there after having observed defendant put it there.Where, as here, there is no automobile stop but merely an approach to an already stationary (parked) car, the officer’s “level one request for information” (People v. Karagoz, 143 AD3d 912, 914 [2016]; see People v. De Bour, 40 NY2d 210, 223 [1976]) requires only an “objective, credible reason not necessarily indicative of criminality” (People v. Clermont, 133 AD3d 612, 613 [2015]; see also People v. Ocasio, 85 NY2d 982, 985 [1995]). Such a request involves “basic, nonthreatening questions regarding, for instance, identity, address or destination” (People v. Hollman, 79 NY2d 181, 185 [1992]). The officer’s credible observations of two persons who appeared to have “passed out” in an automobile in the early morning hours in a residential neighborhood, and with the lights on and the engine running, provided an objective reason to exercise, if nothing else, their “public service function,” pursuant to which the police have ” ‘wide latitude to approach people and ask for information’ ” (People v. Thomas, 19 AD3d 32, 39 [2005], quoting People v. Hollman, 79 NY2d at 189). The use of a flashlight to illuminate what was otherwise in plain view in the vehicle’s interior, in the furtherance of that function, was not itself an unlawful search (see e.g. People v. Parris, 26 AD3d 393, 394 [2006]; People v. Clark, 23 AD3d 673, 674 [2005]; People v. Major, 267 AD2d 251, 251 [1999]; People v. Vasquez, 229 AD2d 997, 997 [1996]; People v. Williams, 205 AD2d 717, 717 [1994]; cf. People v. Laviscount, 116 AD3d 976, 978 [2014]). Consequently, defendant failed to meet his burden of proving that the challenged evidence was unlawfully obtained (see People v. Berrios, 28 NY2d 361, 367 [1971]).Accordingly, the judgment of conviction is affirmed.ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.December 1, 2017By: Solomon, J.P., Pesce, Elliot, JJ.Emiliya’s Diamonds, Inc., appellant pro se.Olga Young, respondent pro se.2015-2666 K C. YOUNG v. EMILIA’S DIAMONDS, INC. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 29, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,600.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover the sum of $1,800, representing the balance allegedly due pursuant to defendant’s agreement to purchase plaintiff’s diamond ring and wedding band. After a nonjury trial, at which plaintiff, among other things, introduced defendant’s check for the $1,800 upon which defendant had stopped payment, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $1,600. Defendant appeals.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).As the record supports the Civil Court’s determination in favor of plaintiff, and as plaintiff has not cross-appealed from the judgment, we find that the parties were provided with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807).Accordingly, the judgment is affirmed.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017Law Office of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant.Adams, Hanson, Rego & Kaplan (Joan A. Reyes, Esq.), for respondent.2016-246 K C. SILVA v. PROGRESSIVE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 30, 2015. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to compel plaintiff to provide outstanding discovery to the extent of directing plaintiff to appear for an examination before trial. ORDERED that the order, insofar as appealed from, is affirmed, without costs.In this action to recover under an automobile insurance policy for property damage, defendant served demands for discovery with its answer and, by a separate notice, demanded that plaintiff produce certain documents with respect to the property damage claim. Thereafter, defendant served a notice to take an examination before trial (EBT) on August 19, 2015. Plaintiff timely objected to the notice on the ground that the notice failed to identify the location of the examination. Defendant then served a follow-up EBT notice which set the location for an October 2015 examination but failed to set forth the day of the month on which it would be held. Plaintiff served a notice of trial and certificate of readiness for trial within days of serving an objection to the second EBT notice. Defendant moved for, among other things, an order directing plaintiff to provide outstanding discovery and vacating the notice of trial. Plaintiff opposed the motion and appeals from so much of the order as directed him to appear for an EBT on or before a specified date.“CPLR 3101 (a) provides that ‘[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof’ ” (Eremina v. Scparta, 120 AD3d 616, 618 [2014] [citations omitted]). The motion court is generally vested with broad discretion over the supervision of disclosure, and an appellate court will not disturb the motion court’s determination absent an improvident exercise of that discretion (see Sukhova v. Ilyas, 132 AD3d 661 [2015]; Rinaldi v. Evenflo Co., Inc., 62 AD3d 856 [2009]).In the case at bar, defendant clearly established its intention to depose plaintiff with respect to his claim for property damage to his vehicle. While plaintiff objected to defendant’s EBT notices as defective, the record indicates that plaintiff filed his notice of trial virtually simultaneously with the service of his objection to defendant’s follow-up EBT notice, effectively preventing defendant from remedying the obvious defect. In view of the Civil Court’s discretionary power to supervise disclosure, we find no reason to disturb its determination to direct plaintiff to appear for an EBT.Accordingly, the order, insofar as appealed from, is affirmed.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.McDonnell, Adels & Klestzick, PLLC (Linda A. Mule, Esq.), for respondent.2016-302 Q C. MASIGLA v. UNITED SERVS. AUTO. ASSN. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered January 15, 2016. The judgment, entered pursuant to an order of that court dated December 14, 2015 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126 and, in effect, denying plaintiff’s cross motion for summary judgment, dismissed the complaint and awarded defendant $750 in attorney’s fees.ORDERED that, on the court’s own motion, the notice of appeal from the order dated December 14, 2015 is deemed a premature notice of appeal from the judgment entered January 15, 2016 (see CPLR 5520 [c]); and it is further,ORDERED that the judgment is modified by vacating so much thereof as awarded defendant $750 in attorney’s fees, and so much of the order dated December 14, 2015 as directed plaintiff to pay $750 in legal fees to defendant’s counsel is vacated; as so modified, the judgment is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant, in November 2013, answered the complaint and served plaintiff with, among other things, combined discovery demands and a notice to take an examination before trial. Thereafter, plaintiff moved for, among other things, summary judgment, and defendant cross-moved, pursuant to CPLR 3126, to dismiss the complaint based on plaintiff’s failure to provide the requested discovery or, in the alternative, pursuant to CPLR 3124, to compel plaintiff to respond to the demands. Defendant argued, among other things, that plaintiff was ineligible to receive no-fault benefits because it had not complied with the licensing laws (see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]). Plaintiff opposed the cross motion, arguing, among other things, that it had responded to defendant’s discovery demands, and annexed its responses, which were dated December 2, 2014, as an exhibit to its opposition papers. In an order entered December 18, 2014, the Civil Court (Jodi Orlow, J.), among other things, granted defendant’s cross motion to the extent of directing plaintiff to provide defendant with responses to specified discovery requests within 45 days of the date of service of a copy of the order, and stated that plaintiff’s failure to comply with the order shall result in the dismissal of the complaint with prejudice.In April 2015, defendant moved to dismiss the complaint pursuant to CPLR 3126 based on plaintiff’s failure to comply with the December 18, 2014 order. Plaintiff cross-moved for summary judgment and opposed defendant’s motion, stating, among other things, that it was entitled to a protective order; that it had already provided responses to defendant, i.e., in December 2014; and that defendant was not entitled to further discovery. By order dated December 14, 2015, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion and dismissed the complaint with prejudice, in effect, denied plaintiff’s cross motion, and, sua sponte, directed plaintiff to pay $750 in legal fees to defendant’s counsel. Plaintiff’s appeal from the December 14, 2015 order is deemed to be from the judgment that was subsequently entered on January 15, 2016 dismissing the complaint (see CPLR 5520 [c]) and awarding defendant $750 in attorney’s fees.The determination to strike a pleading based on a party’s failure to provide discovery pursuant to a court order lies within the sound discretion of the trial court (see Kihl v. Pfeffer, 94 NY2d 118, 123 [1999]; Orgel v. Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]; Giano v. Ioannou, 78 AD3d 768, 770 [2010]; Fishbane v. Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]). Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy but is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 AD3d 685 [2011]). Plaintiff’s willful and contumacious conduct can be inferred here from its refusal to respond to defendant’s discovery demands after being directed to do so in the December 18, 2014 order, which order noted that any failure to comply therewith would result in the dismissal of the complaint, and from plaintiff’s failure to provide a reasonable excuse for its failure to comply (see Tos v. Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v. Joyce, 10 AD3d 601 [2004]; Jamhil Med., P.C. v. Allstate Ins. Co., 44 Misc 3d 130[A], 2014 NY Slip Op 51028[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, the Civil Court did not improvidently exercise its discretion in dismissing the complaint pursuant to CPLR 3126.However, the Civil Court’s sua sponte award of attorney’s fees to defendant, apparently pursuant to part 130 of the Rules of the Chief Administrator of the Courts (22 NYCRR), was improper, as plaintiff was not provided with a reasonable opportunity to be heard on the issue as required by Rules of the Chief Administrator of the Courts (22 NYCRR) §130-1.1 (d) (see Spataro v. Abusabe, 32 Misc 3d 130[A], 2011 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Maroney v. Maroney, 208 AD2d 915 [1994]). Plaintiff’s remaining contentions are either unpreserved for appellate review or lack merit.Accordingly, the judgment is modified by vacating the award to defendant of $750 in attorney’s fees, and so much of the order dated December 14, 2015 as directed plaintiff to pay $750 in legal fees to defendant’s counsel is vacated.SOLOMON, J.P., and ELLIOT, J., concur.PESCE, J., taking no part.December 1, 2017Cohen, Hurkin, Ehrenfeld, Pomerantz & Tenenbaum, LLP (Robert Ehrenfeld, Esq.), for appellant.The Legal Aid Society (Alexandra Heinegg, Esq.), for respondent.2016-766 K C. 1900 ALBEMARLE, LLC v. SOLON — Appeal from an order of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), dated January 13, 2016. The order granted tenant’s motion to dismiss the petition and denied landlord’s cross motion for summary judgment in a holdover summary proceeding.ORDERED that the order is affirmed, without costs.Tenant, the recipient of a Section 8 subsidy for a rent-stabilized apartment that he has resided in since 1985, suffered a debilitating stroke in 2007 and was in a rehabilitation facility until he returned to his apartment in December 2010. Tenant’s Section 8 subsidy was terminated in April 2010, effective July 31, 2008, because he had vacated his apartment. Landlord brought a nonpayment proceeding in 2011 for the recovery of the Section 8 portion of the rent, which proceeding was dismissed in 2014. Tenant’s voucher was reinstated in June 2014, and landlord began receiving Section 8 payments in October 2014, following the completion of required repairs. Landlord commenced this holdover proceeding in August 2015, alleging that tenant had violated a substantial obligation of his tenancy under his initial 1985 lease and Rent Stabilization Code §2524.3 (a) by failing to comply with his obligation to assure that his rent subsidy continued to be paid, and demanding that tenant pay landlord over $70,000 for the lost Section 8 subsidy. Landlord appeals from an order of the Civil Court which granted tenant’s motion to dismiss the petition for failure to state a cause of action and denied landlord’s cross motion for summary judgment.A holdover proceeding based upon a landlord’s termination of the lease may only be maintained where there is a conditional limitation in the lease providing for its early termination (see Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1 [1983]; Fourth Hous. Co., Inc. v. Bowers, 53 Misc 3d 43 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2016]; St. Catherine of Sienna Roman Catholic Church, at St. Albans, Queens County v. 118 Convent Assoc., LLC, 44 Misc 3d 8 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2014]). Here, as correctly noted by the Civil Court, the lease contains no such conditional limitation. We reach no other issue.Accordingly, the order is affirmed.SOLOMON, J.P., and ELLIOT, J., concur.PESCE, J., taking no part.December 1, 2017Eppinger, Reingold & Korder (Mitchell L. Korder, Esq.), for appellant.Sheppard, Mullin, Richter & Hampton, LLP (Jean N. Ripley, Esq.), for respondent.2016-1252 Q C. OTTY CAB CORP. v. NAZIR — Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 15, 2016. The order denied plaintiff’s motion for summary judgment.ORDERED that the order is affirmed, without costs.Plaintiff, a yellow medallion New York City taxicab corporation, commenced this action to recover the sum of $7,282.89 for damage to plaintiff’s taxicab as a result of a motor vehicle accident. In plaintiff’s summons and endorsed complaint, plaintiff alleged that defendant, who was driving the taxicab under an alleged weekly lease, had, at the time of the accident, been negligent in operating the taxicab. After issue had been joined, plaintiff moved for summary judgment, contending that defendant had been solely responsible for the accident, a rear-end collision with another vehicle. The Civil Court denied plaintiff’s motion in an order entered March 15, 2016, from which plaintiff appeals.“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In support of its motion for summary judgment, on the issue of liability, plaintiff submitted a police accident report (MV-104AN) containing a description of the accident, as well as an MV-104 accident report that had been completed by defendant, in which he stated that the car in front of him had suddenly stopped and that the front of his taxicab had hit the rear of that car. Although the police accident report was inadmissible, as the police officer who had completed the report had not personally observed the accident (see Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392 [2003]; Yeargans v. Yeargans, 24 AD2d 280 [1965]); the source of the statement describing the accident was not identified (see Noakes v. Rosa, 54 AD3d 317, 318 [2008]; Battista v. Rizzi, 228 AD2d 533 [1996]); and it was not established that the unidentified source was under a business duty to make the statement or that some other hearsay exception applied (see Cover v. Cohen, 61 NY2d 261, 274 [1984]; Noakes v. Rosa, 54 AD3d at 318), the MV-104 accident report that had been completed by defendant was admissible as a party admission (see e.g. Benedikt v. Certified Lbr. Corp., 60 AD3d 798 [2009]; Ashif v. Won Ok Lee, 57 AD3d 700 [2008]).Here, plaintiff established its prima facie entitlement to judgment as a matter of law on the issue of negligence by demonstrating that the taxicab driven by defendant had collided with the rear of another vehicle. Thus, defendant was required to come forward with evidence of a non-negligent explanation for the collision, in order to rebut the inference of negligence (see Drakh v. Levin, 123 AD3d 1084 [2014]). In opposition, defendant raised a triable issue of fact with evidence of a non-negligent explanation for the collision. Specifically, defendant averred, in his opposing affidavit, that, in attempting to get onto the Grand Central Parkway, he was required to make a blind turn, and that he was unable to see the car on the road in front of him which was “unexpectedly stopped around the turn.” Under these circumstances, defendant raised a triable issue of fact, which precluded summary judgment in favor of plaintiff (see Pace v. State of New York, 271 AD2d 419 [2000]).Accordingly, the order is affirmed.SOLOMON, J.P., and ELLIOT, J., concur.PESCE, J., taking no part.December 1, 2017Becker & Poliakoff, LLP (Glenn H. Spiegel, Esq.), for appellant.Law Offices of Saul Bienenfeld, P.C. (Saul Bienenfeld, Esq.), for respondent.2016-1296 K C. ISRAEL v. DA AUTO REPAIRS CORP. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 28, 2016. The order, among other things, in effect, dismissed the petition in a special proceeding brought pursuant to Lien Law §201-a to challenge the validity of a lien.ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of petitioner canceling the lien.Petitioner commenced this special proceeding pursuant to Lien Law §201-a to challenge the validity of a lien on an automobile he owns which is in the possession of respondent DA Auto Repairs Corp. Petitioner alleged in his affidavit that his vehicle had been in an automobile accident on October 1, 2015, and he had not authorized respondent to make any repairs to his automobile. He alleged that, on October 4, 2015, he had asked that his vehicle be returned to him.After oral argument, by order entered January 28, 2016, the Civil Court, among other things, in effect, dismissed the petition.“In response to a challenge to the lien pursuant to Lien Law §201-a, the lienor must make a prima facie showing of the validity of the lien and entitlement to the amount claimed” (Matter of BMW Bank of N. Am. v. G & B Collision Ctr., Inc., 46 AD3d 875, 876 [2007]). “The statute clearly inures to the benefit of a garage owner who can establish the following elements: (1) the garage is the bailee of a motor vehicle; (2) it has performed garage services or stored the vehicle with the vehicle owner’s consent; (3) there was an agreed-upon price or, if no agreement on price had been reached, the charges are reasonable for the services supplied; and (4) the garage is a duly registered motor vehicle repair shop as required under article 12-A of the Vehicle and Traffic Law” (Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v. Eland Motor Car Co., 85 NY2d 725, 730 [1995] [citations omitted]; see Lien Law §184; Matter of Daimler Trust & Daimler Tit. Co. v. SG Autobody LLC, 112 AD3d 1123, 1124 [2013]).In this case, respondent’s opposition consisted only of an affirmation signed by one purporting to be a “partner” in DA Auto Repairs Corp., which affirmation failed to make a prima facie showing of the validity of the lien and the lienor’s entitlement to the amount claimed since respondent did not establish that it had performed the repair services, that the parties had agreed upon a price or that, absent such agreement, the charges were reasonable, or that the repair shop was duly registered as required by statute (see Lien Law §184; Matter of National Union Fire Ins. Co. of Pittsburgh, Pa., 85 NY2d at 730; Matter of Daimler Trust & Daimler Tit. Co., 112 AD3d at 1124; Matter of BMW Bank of N. Am., 46 AD3d at 876).We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).Accordingly, the order is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of petitioner canceling the lien.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017Law Offices of Rina Milos (Rina Milos, Esq.), for appellant.Sweeney, Reich & Bolz, LLP (Rashel M. Mehlman, Esq.), for respondent.2016-1666 Q C. 133 PLUS 24 SANFORD AVE. REALTY CORP. v. XIU LAN NI — Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 11, 2016. The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.In this commercial holdover proceeding, landlord terminated tenant’s lease based on a notice of default and a notice of termination alleging that tenant owed landlord $50,940.68 in additional rent for sewer use and water consumption. Tenant interposed affirmative defenses alleging, among other things, that “[t]he amount of rent demanded in the Petition is incorrect. All rent and additional rent have been paid to the present month,” and that the notice of termination is defective for failure to allege facts sufficient to establish grounds to terminate the tenancy. After a nonjury trial, the Civil Court, finding that landlord’s proof established that tenant actually owed $5,437.89 in additional rent, awarded landlord possession.When the basis for a landlord’s termination of a commercial lease is an alleged default in rent, the predicate notices must properly set forth the approximate good faith amount of rent owed (see 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309 [2007]). Here, the trial court, in effect, found that landlord had overstated the amount of additional rent owed by $45,502.79, approximately nine times the actual amount due. Thus, the notices were defective and did not operate to terminate the lease. Since landlord failed to establish a proper termination of the lease, it failed to make out its prima facie case (see 2268 Church Ave., LLC v. Clarke, 48 Misc 3d 127[A], 2015 NY Slip Op 50915[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2015]).Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.SOLOMON, J.P., and PESCE, J., concur.ELLIOT, J., taking no part.December 1, 2017Melick & Porter, LLP (John F. Rooney, III, Esq.), for appellant.Nicolini, Paradise, Ferretti & Sabella, PLLC (Daniel W. Berglund, Esq.), for respondent.2016-1859 Q C. STATE FARM FIRE AND CAS. INS. CO. v. WATTS WATER TECH., INC. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered July 8, 2016. The order denied defendant’s motion to dismiss the complaint or, in the alternative, to compel arbitration and stay the action pending arbitration.ORDERED that the order is affirmed, without costs.On August 12, 2015, plaintiff commenced this action to recover damages as subrogee of its insured, Joyce Kassouf, the owner of the insured premises. Plaintiff claimed that, on October 17, 2012, a malfunction in a stainless steel toilet connector in the water supply line caused a water leak, resulting in damage to the insured premises. Plaintiff alleged that the damage was due to the carelessness and negligence of defendant “in the servicing, design, testing, inspection, manufacture, promotion, distribution, assembly, installation, use and/or sale of the toilet connector,” and that plaintiff incurred a loss of $19,266.98 when it reimbursed Kassouf for the property damage sustained.Defendant moved to dismiss the complaint or, in the alternative, to compel arbitration and stay the action pending arbitration, on the ground that the parties had entered into a written “Property Subrogation Arbitration Agreement” which required product liability claims such as this one to be submitted to arbitration through Arbitration Forums, Inc. (AFI). By order entered July 8, 2016, the Civil Court denied defendant’s motion.At the time of the alleged loss, both plaintiff and defendant were signatories to the aforementioned agreement administered by AFI, requiring them to “forego [sic] litigation and submit any personal, commercial or self-insured property subrogation claims to” AFI. The agreement also authorized AFI to “make appropriate Rules and Regulations for the presentation and determination of controversies” under the agreement. According to AFI’s rules, effective October 1, 2012, compulsory arbitration was applicable to property subrogation claims seeking recovery up to a maximum of $100,000.In November 2014, in an e-bulletin, AFI notified the parties that, effective January 1, 2015, the agreement would be amended to exclude from compulsory arbitration any “product liability claim arising from an alleged defective product,” unless written consent had been obtained. The e-bulletin explained: “While the use of the Property Program to resolve disputes involving product liability claims arising from an alleged defective product will no longer be compulsory as of January 1, 2015, cases filed prior to January 1, 2015 will remain in arbitration’s jurisdiction and will be processed to hearing. Parties may still consent to use the Property Program to resolve product liability claims on a per-case basis on and after January 1, 2015.” The agreement was then formally amended, effective January 1, 2015, by adding the following language to the section governing exclusions: “No company shall be required, without its written consent, to arbitrate any claim or suit if: (i) it is a product liability claim arising from an alleged defective product.” Therefore, this action, which was commenced on August 12, 2015, is excluded from compulsory arbitration. Although defendant contends that it is the date of loss that determines whether compulsory arbitration applies to a claim, there is nothing in the AFI agreement or rules to support such an interpretation.We note that the section of the “Reference Guide to [AFI's] Agreements and Rules” (effective January 1, 2015) dealing with exclusions states: “Article Second lists the exclusions to compulsory arbitration.…If any of these exclusions apply to the dispute or suit in question, the members are not required to file arbitration.”We further note that neither the 2015 Reference Guide nor the 2012 Reference Guide (which was in effect at the time of the loss herein) states that the date of loss determines whether a claim is subject to compulsory arbitration. In fact, the 2015 Reference Guide clearly states that “[t]he date of loss is not controlling.”Accordingly, for all the foregoing reasons, the order of the Civil Court denying defendant’s motion is affirmed.SOLOMON, J.P., and ELLIOT, J., concur.PESCE, J., taking no part.December 1, 2017De Jin Xue, appellant pro se.Winzone Realty, Inc., respondent pro se (no brief filed).2016-2030 Q C. WINZONE REALTY, INC. v. DE JIN XUE — Appeal from a judgment of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered March 9, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,802.50.ORDERED that the judgment is affirmed, without costs.Plaintiff, a brokerage agency, brought this commercial claims action to recover the amount allegedly owed for services rendered to defendant in connection with defendant’s purchase of a condominium apartment at an auction. After a nonjury trial, at which both plaintiff’s witness and defendant testified and submitted various documents into evidence, a judgment was entered awarding plaintiff the principal sum of $3,802.50.In a commercial claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807-A [a]; see CCA 1804-A; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125, 126 [2000]). The determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Commercial Claims Part of the court (see Williams v. Roper, 269 AD2d at 126).As the evidence and testimony support the Civil Court’s determination that plaintiff was owed $3,802.50, or one percent of the purchase price of the condominium apartment, in accordance with the agreement entered into between the parties, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804-A, 1807-A; Ross v. Friedman, 269 AD2d 584, Williams v. Roper, 269 AD2d at 126).Accordingly, the judgment is affirmed.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 1, 2017Staten Island Legal Services (Logan Schiff, Esq.), for appellant.Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, P.C., for respondent (no brief filed).2016-2367 RI C. 151 DANIEL LOW, LLC v. LI — Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered June 3, 2016, deemed from a judgment of that court entered June 3, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to the June 3, 2016 order granting landlord’s motion for attorney’s fees, awarded landlord the sum of $3,535.ORDERED that the judgment is reversed, without costs, the order entered June 3, 2016 is vacated, and landlord’s motion for attorney’s fees is denied.In this holdover proceeding, landlord alleged that the apartment was rent stabilized but that tenant was not protected by the Rent Stabilization Law because he had refused to sign a vacancy lease. Tenant moved to dismiss the petition, and landlord separately moved for summary judgment. By order dated October 13, 2015, the Civil Court granted landlord’s motion and denied tenant’s motion. A final judgment awarding landlord possession and the sum of $13,765.69 was entered on October 21, 2015, pursuant to that order. Tenant appealed from the final judgment and, while the appeal was pending, filed a postjudgment motion for a permanent stay of eviction, and an opportunity to cure by signing the vacancy lease that had been offered by landlord, which motion was denied in an order of the Civil Court dated March 11, 2016. Thereafter, landlord moved for an award of attorney’s fees on the ground that tenant’s motion for postjudgment relief had been frivolous. By order dated June 3, 2016, the Civil Court awarded landlord attorney’s fees in the sum of $3,535. A judgment awarding landlord the sum of $3,535 was entered on June 3, 2016. By decision and order dated September 15, 2017, this court reversed the final judgment, vacated the Civil Court’s October 13, 2016 order, denied landlord’s motion for summary judgment and granted tenant’s motion to dismiss the petition, holding that tenant’s refusal to sign the vacancy lease did not deprive him of rent stabilization protection (151 Daniel Low, LLC v. Li, __ Misc 3d ___, 2017 NY Slip Op 27299 [2017]). Tenant’s appeal from the Civil Court’s June 3, 2016 order is deemed to be from the judgment entered June 3, 2016 (see CPLR 5512 [a]).The Civil Court erred in granting landlord attorney’s fees based on frivolous conduct. Section 130-1.1 of the Rules of the Chief Administrator of the Courts (22 NYCRR) allows a court to sanction an attorney for engaging in frivolous conduct, including conduct: (1) “completely without merit in law”; (2) “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or (3) “assert[ing] material factual statements that are false.” Here, there was no evidence that the conduct by tenant or his counsel, in making a motion in the Civil Court while an appeal was pending, was motivated by anything other than a desire to protect tenant’s interests in an expeditious fashion. Moreover, the motion was not frivolous, as it was predicated upon, among other things, a claim that a failure to sign a lease is curable (see Fairbanks Gardens Co. v. Gandhi, 168 Misc 2d 128 [App Term, 2d Dept, 2d & 11th Jud Dists 1996], affd 244 AD2d 315 [1997]). Consequently, the imposition of attorney’s fees was not warranted (see Bahamonde v. State of New York, 269 AD2d 551 [2000]).Accordingly, the judgment is reversed, the order entered June 3, 2016 is vacated, and landlord’s motion for attorney’s fees is denied.SOLOMON, J.P., and ELLIOT, J., concur.PESCE, J., taking no part.December 1, 2017
