Appellate Division, Second Department: May 9, 2018

By Leventhal, J.P.; Cohen, Miller and Lasalle, JJ.American Airlines Federal Credit Union, res, v. Michael Costello def, Susan Costello, ap — (Index No. 8679/11)Fred M. Schwartz, Smithtown, NY, for appellant.Rosicki, Rosicki & Associates, P.C., Plainview, NY (Catherine Gran and Andrew Morganstern of counsel), for respondent.In an action to foreclose a mortgage, the defendant Susan Costello appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated June 29, 2014, which (a) granted the plaintiff’s motion for summary judgment on the complaint and dismissing the affirmative defenses asserted by the defendants Michael Costello and Susan Costello in their joint answer, and for an order of reference, and (b) denied her cross motion, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her for failure to state a cause of action, and (2) an order of the same court, also dated June 29, 2014, which, among other things, upon the granting of that branch of the plaintiff’s motion which was for an order of reference, appointed a referee.ORDERED that the first order dated June 29, 2014, is modified, on the law, by deleting the provision thereof granting the plaintiff’s motion for summary judgment on the complaint and dismissing the affirmative defenses asserted by the defendants Michael Costello and Susan Costello in their joint answer, and for an order of reference, and substituting therefor a provision denying the plaintiff’s motion on the ground that no substitution had been made for the deceased defendant; as so modified, the first order dated June 29, 2014, is affirmed; and it is further,ORDERED that the second order dated June 29, 2014, is reversed, on the law; and it is further,ORDERED that one bill of costs is awarded to the defendant Susan Costello.The plaintiff commenced this action against, among others, the defendants Michael Costello and Susan Costello (hereinafter together the homeowners) to foreclose a mortgage. In addition to the judicial sale of the subject property, the complaint sought a deficiency judgment against the homeowners.After the action was commenced, the defendant Michael Costello died. The plaintiff thereafter moved for summary judgment on the complaint and dismissing the affirmative defenses asserted by the homeowners in their joint answer, and for an order of reference.The defendant Susan Costello opposed the plaintiff’s motion, arguing, among other things, that the death of Michael Costello automatically stayed the proceedings in the action pending the substitution of a legal representative for that deceased defendant. She also cross-moved, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her.In the first order appealed from, the Supreme Court granted the plaintiff’s motion and denied Susan Costello’s cross motion. In the second order appealed from, the court, inter alia, appointed a referee to compute the amount due to the plaintiff on the note and mortgage.As a general matter, “the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a legal representative for that decedent pursuant to CPLR 1015(a)” (NYCTL 2004-A Trust v. Archer, 131 AD3d 1213, 1214; see CPLR 1015, 1021; Aurora Bank FSB v. Albright, 137 AD3d 1177, 1178; U.S. Bank N.A. v. Esses, 132 AD3d 847, 847-848; JPMorgan Chase Bank, N.A. v. Rosemberg, 90 AD3d 713, 714). ”[A]ny determination rendered without such a substitution will generally be deemed a nullity” (Singer v. Riskin, 32 AD3d 839, 840; see Aurora Bank FSB v. Albright, 137 AD3d at 1178; NYCTL 2004-A Trust v. Archer, 131 AD3d at 1214).Here, the defendant Michael Costello died before the plaintiff’s motion was made and before the orders appealed from were issued. Since a substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff’s motion, even to the extent that the plaintiff sought relief against the other defendants (see Aurora Bank FSB v. Albright, 137 AD3d at 1178; U.S. Bank Natl. Assn. v. Esses, 132 AD3d at 847-848; NYCTL 2004-A Trust v. Archer, 131 AD3d at 1214; JPMorgan Chase Bank, N.A. v. Rosemberg, 90 AD3d at 714). Furthermore, although this Court has recognized, under certain limited circumstances, that “where a party’s demise does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” (U.S. Bank N.A. v. Esses, 132 AD3d at 848), those circumstances are not present here (see Aurora Bank FSB v. Albright, 137 AD3d at 1178; U.S. Bank N. A. v. Esses, 132 AD3d at 847-848; cf. HSBC Bank USA v. Ungar Family Realty Corp., 111 AD3d 673, 673; Bank of N.Y. Mellon Trust Co. v. Ungar Family Realty Corp., 111 AD3d 657, 658-659; DLJ Mtge. Capital, Inc. v. 44 Brushy Neck, Ltd., 51 AD3d 857, 858).The plaintiff’s remaining contentions are either improperly raised for the first time on appeal or based on matter dehors the record (see generally Salatino v. Pompa, 134 AD3d 692, 693). Accordingly, the Supreme Court should have denied the plaintiff’s motion on the ground that no substitution had been made for the deceased defendant. Since the failure to lift the automatic stay also required the denial of Susan Costello’s cross motion on the same procedural ground, we do not disturb the portion of the order denying that cross motion.LEVENTHAL, J.P., COHEN, MILLER and LASALLE, JJ., concur.By Rivera, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.NJCB SPEC-1, LLC, ap, v. Theodora Budnik respondents def — (Index No. 7478/13)Drake Loeb, PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondentsEdward A. Kearney III, Jesse E. Kearney, Charlene Kearney, John W. Kearney II, and William Hunt.In an action, inter alia, for a judgment declaring that restrictions in four deeds are void and unenforceable, the plaintiff appeals from so much of a judgment of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated April 29, 2015, as, upon an order of the same court dated September 10, 2014, is in favor of the defendants Theodora Budnik and Elizabeth Shafer and against it declaring that those defendants hold a valid and enforceable reverter interest in the property described in a deed dated August 19, 1941, and is in favor of the defendants Edward A. Kearney III, Jesse E. Kearney, John W. Kearney II, and William Hunt and against it declaring that those defendants hold a valid and enforceable reverter interest in the property described in a deed dated January 14, 1953.ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.The plaintiff acquired title to premises being used as a golf club by deed in lieu of foreclosure in 2013. The premises comprises four plots of land subject to use restrictions, two of which are at issue on this appeal. Two deeds, dated August 19, 1941, and January 14, 1953, transferred their respective lots “for so long as” each was used “for golf club purposes, and for no other purposes.” Should either lot “ever cease to be used… for golf club purposes,” then “the estate granted… shall thereupon become void, and title to said lands shall revert back” to the grantors or the grantors’ successors in interest, “who thereupon may enter said lands as if this conveyance had never been made.” The defendants Theodora Budnik and Elizabeth Shafer are heirs to the grantors of the 1941 deed. On November 2, 1964, the grantor of the 1953 deed conveyed her future interest to Edward A. and Elizabeth B. Kearney. The defendants Edward A. Kearney III, Jesse E. Kearney, John W. Kearney II, and William Hunt (hereinafter collectively the Kearney defendants, and together with Budnik and Shafer, the defendants) are the successors in interest to Edward A. and Elizabeth B. Kearney.In September 2013, the plaintiff commenced this action against, among others, the defendants, inter alia, for a judgment declaring that the use restrictions on the four plots of land are void and unenforceable. The plaintiff then moved, inter alia, for summary judgment on the second and third causes of action, which sought a judgment declaring that the use restrictions and right of reverter or reacquisition in the 1941 deed and the 1953 deed are void and unenforceable. The plaintiff argued that the 1941 deed did not allow for the transfer of its future interest through inheritance, and that the future interest created by the 1953 deed terminated when the grantor transferred it in 1964. Budnik cross-moved, and Shafer and the Kearney defendants separately cross-moved, for summary judgment on their respective counterclaims for a judgment declaring that their respective future interests are valid and enforceable. In an order dated September 10, 2014, the Supreme Court, inter alia, denied those branches of the plaintiff’s motion which were for summary judgment on the second and third causes of action, and granted the defendants’ separate cross motions. A judgment was entered accordingly. The plaintiff appeals.Contrary to the plaintiff’s contention, the 1941 deed and the 1953 deed created possibilities of reverter. ”‘[E]very instrument creating [or] transferring… an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law’” (328 Owners Corp. v. 330 W. 86 Oaks Corp., 8 NY3d 372, 381, quoting Real Property Law §240[3]). No precise language is necessary to create a possibility of reverter, but “[a] characteristic of the type of expression which works automatic expiration of the grantee’s fee seems to be one in which time is an important factor,” such as use of the words “until,” “so long as,” or “during” (Fausett v. Guisewhite, 16 AD2d 82, 86-87; see EPTL 6-4.5; Cathedral of the Incarnation in the Diocese of Long Is. v. Garden City Co., 265 AD2d 286, 289). Here, the 1941 deed and the 1953 deed unequivocally called for automatic forfeiture of the estate upon breach and thereby created for their respective grantors possibilities of reverter.The plaintiff’s contention that the conveyance in 1964 of the future interest of the grantor of the 1953 deed invalidated the Kearney defendants’ possibility of reverter is without merit. Although no statute in effect in 1964 explicitly provided the grantor of the 1953 deed with a right to convey her possibility of reverter (see L 1962, ch 146, §3), under the applicable rules of the common law, “a possibility of reverter could be freely assigned and alienated” (Board of Educ. of Ramapo Cent. School Dist. v. Greene, 112 AD2d 182, 184; see Lipetz v. Papish, 308 NY 787, 788; Nichols v. Haehn, 8 AD2d 405, 410-412). The cases cited by the plaintiff are inapposite, as they concern the right of reacquisition, which is a future estate left in the creator or in his or her successors in interest upon the simultaneous creation of an estate on a condition subsequent (see EPTL 6-4.6). Unlike a possibility of reverter, a right of reacquisition was rendered void at common law if an attempt was made to assign it (see People v. Wainwright, 237 NY 407, 411; Fowler v. Coates, 201 NY 257, 262; Upington v. Corrigan, 151 NY 143, 153; Stonegate Family Holdings, Inc. v. Revolutionary Trails, Inc., Boy Scouts of Am., 73 AD3d 1257, 1259; Board of Educ. of Ramapo Cent. School Dist. v. Greene, 112 AD2d at 184; United Meothdist Church in W. Sand Lake v. Dobbins, 48 AD2d 485, 486). The 1964 conveyance therefore did not invalidate the possibility of reverter held by the Kearney defendants. Accordingly, the Supreme Court properly declared that the Kearney defendants’ possibility of reverter is valid and enforceable.The plaintiff’s contention that the restrictions in the 1941 deed and the 1953 deed unreasonably limited the use and development of the premises is improperly raised for the first time on appeal.We have not considered the plaintiff’s contention that the Supreme Court failed to include a provision in the judgment awarding it the relief sought in its fourth cause of action, as that contention is beyond the scope of its limited notice of appeal from the judgment (see White v. Farrell, 20 NY3d 487, 493 n 1; O’Brien v. Town of Huntington, 131 AD3d 685, 687; Wenzel v. 16302 Jamaica Ave., LLC, 115 AD3d 852, 853; Hunt v. Raymour & Flanigan, 105 AD3d 1005, 1006; City of Mount Vernon v. Mount Vernon Hous. Auth., 235 AD2d 516, 516-517).RIVERA, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Duffy and Lasalle, JJ.MATTER of Brysen A. (Anonymous). Administration for Childrens Services, petitioner- res; Bryan A. (Anonymous), ap, et al., res — (Proceeding No. 1)MATTER of Bryelle A. (Anonymous). Administration for Childrens Services, petitioner- res; Bryan A. (Anonymous), ap, et al., res — (Proceeding No. 2) (Docket Nos. N-30876-14, N-30877-14)Mark Diamond, New York, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Claude S. Platton and Jeremy W. Shweder of counsel), for petitioner-respondent.Larry S. Bachner, New York, NY, attorney for the children.Appeal from an order of fact-finding and disposition of the Family Court, Kings County (Alan Beckoff, J.), dated August 9, 2016. The order, insofar as appealed from, after a fact-finding and dispositional hearing, found that the father derivatively abused the subject children and directed the issuance of a final order of protection in favor of the subject children and against the father.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.The Administration for Children’s Services (hereinafter ACS) commenced these proceedings pursuant to article 10 of the Family Court Act, alleging that the father derivatively abused his two children, Brysen A. and Bryelle A. (hereinafter together the subject children). Thereafter, a fact-finding and dispositional hearing was held at which ACS introduced into evidence, inter alia, the transcript of the father’s plea of guilty to the federal charges of conspiracy to commit sex trafficking, sex trafficking of a child, and promotion of prostitution. In his plea, the father admitted to a course of conduct in the 10-year period prior to his arrest during which, at various times, he had agreed to have a minor perform sex acts for money, he had arranged for minors to perform sex acts for money, and he and the subject children’s mother had operated a prostitution business. The father did not testify or present any evidence at the hearing. The Family Court found that the father derivatively abused the subject children. In addition, in a related contemporaneous proceeding, the father consented to a finding of abuse arising out of excessive corporal punishment the father inflicted on his then 16-year-old half-sister. As is relevant to this appeal, the court thereafter directed that the father be supervised by ACS for a period of six months and entered a final order of protection in favor of the subject children and against the father for a period of six months, allowing the father only supervised visitation with the subject children. The father appeals.In a child protective proceeding pursuant to Family Court Act article 10, a finding that a child is abused or neglected must be supported by a preponderance of the evidence (see Family Ct Act §1046[b][i]; Matter of Tammie Z., 66 NY2d 1, 3). In a derivative abuse or neglect proceeding, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child” (Family Ct Act §1046[a][i]). A derivative finding of abuse is proper where the evidence of abuse of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for any child in the parent’s care (see Matter of Harmony M.E. [Andre C.], 121 AD3d 677, 679; Matter of Amirah L. [Candice J.], 118 AD3d 792, 793). Here, the Family Court properly found that the father derivatively abused the subject children based on, inter alia, the evidence of his federal convictions and the underlying basis for those convictions (see Matter of Enrique R. [Eddie R.], 148 AD3d 474, 475; Matter of Lillian SS. [Brian SS.], 118 AD3d 1079, 1080; Matter of Angelica M. [Nugene A.], 107 AD3d 803, 804-805; Matter of Anastacia L. [Vito L.], 90 AD3d 452, 453).At a dispositional hearing, the court’s disposition must be made “on the basis of the best interests of the child” (Family Ct Act §631; see Matter of Star Leslie W., 63 NY2d 136, 147-148; Matter of Victoria P. [Victor P.], 121 AD3d 1006, 1007; Matter of Phillips N. [Joy N.], 104 AD3d 690, 691). Under the circumstances here, the Family Court properly determined that a final order of protection against the father, subject to supervised visitation as permitted by federal correctional authorities, was in the best interests of the subject children (see Family Ct Act §631; Matter of Zenaida O. [Alberto L.], 140 AD3d 882, 883; see also Matter of Craig S. v. Emily S., 149 AD3d 751, 753).The father’s remaining contention is without merit.CHAMBERS, J.P., HINDS-RADIX, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Matthew Paul, res, v. Sherry Paul, ap — (Index No. 2214/13)In an action for child custody, the mother appeals from a judgment of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated June 9, 2016. The judgment, insofar as appealed from, upon a decision and order dated September 3, 2015, awarded the parties joint legal custody of their children with primary physical custody to the father and visitation to the mother.ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.The parties to this custody dispute were married and have two children in common, twins who were born in 2007. The parties separated in 2012 and, in a separation agreement dated April 28, 2012, agreed that the mother, who was moving to Virginia, would have primary physical custody of the children. The father filed for divorce in the Supreme Court, Orange County, on March 13, 2013.In late March of 2013, the father moved for custody of the children by order to show cause returnable May 10, 2013, seeking to invoke the temporary emergency jurisdiction of the Supreme Court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law article 5-a; hereinafter UCCJEA). The order to show cause contained a proposed provision awarding the father temporary custody of the children. The father stated in his affidavit in support of his motion that, when the children arrived in New York for a scheduled visit with him, he had been alarmed by their physical condition and school reports of their excessive absences.On April 3, 2013, the parties appeared before the Supreme Court on the order to show cause, and the father testified, among other things, about the emergency circumstances that he alleged existed, including persisting sores on one child’s arms for which the mother did not seek medical attention, the low weight of one of the twins, who was five years old but only weighed 32  pounds, the poor condition of one child’s teeth, which had two cavities and required a root canal, and school reports of excessive absences and inadequate clothing and snacks. The father also testified that, earlier in the year, the mother had sent the children, who at the time were only five years old, to New York for Christmas break to visit him by train—a journey which required multiple transfers—accompanied only by their 18-year-old half sister, notwithstanding the half sister’s pre-existing psychiatric issues and the fact that she had just had kidney removal surgery a couple of weeks prior to the travel.The mother appeared at the April 3, 2013 proceeding without counsel. At the conclusion of that proceeding the Supreme Court signed the provision of the order to show cause awarding temporary custody of the children to the father, and directed that answering papers be served and filed on or before May 1, 2013. The court also directed the parties to appear on the return date, May 10, 2013, to address the merits of the father’s motion for custody of the children. Thereafter, the court appointed an attorney for the children on April 5, 2013, and counsel for the mother on May 6, 2013.The mother’s counsel neither sought to adjourn the return date of the father’s motion nor submitted any written opposition to it; instead, counsel made oral arguments in a conference with the court on May 24, 2013. In an order dated June 6, 2013 (hereinafter the June 2013 order), the court reiterated its preliminary finding that it could exercise jurisdiction over the matter pursuant to the temporary emergency jurisdiction provisions of the UCCJEA (see Domestic Relations Law §76-c[1]), and granted the father temporary custody of the children. The mother did not appeal the June 2013 order, and did not move at that time to vacate it or to renew or reargue her opposition to it; nor did the mother commence a custody proceeding in Virginia.Almost a year later, on March 28, 2014, after 11 days of trial testimony on the issue of custody, the mother filed a motion seeking, inter alia, to vacate the June 2013 order, contending, among other things, that there was no basis for the court to exercise emergency jurisdiction under the UCCJEA. In an order dated May 2, 2014, the Supreme Court denied that branch of the mother’s motion (hereinafter the May 2014 order).Subsequently, at the conclusion of all testimony and briefing, the Supreme Court issued a decision in which it concluded that it had jurisdiction to determine the issue of custody and the parties should be awarded joint legal custody of the children, with primary physical custody to the father. The court noted that New York had become the children’s home state in that no prior custody order had been issued by Virginia, which had previously been the children’s home state, and no custody proceeding had been commenced in Virginia either before or after the commencement of this action in New York (see Domestic Relations Law §76-c[2]). The court then entered a judgment of divorce, inter alia, awarding the parties joint legal custody of the children with primary physical custody to the father and liberal visitation to the mother. The mother appeals from that portion of the judgment. The appeal brings up for review the June 2013 and May 2014 orders, which determined that the court had emergency jurisdiction under the UCCJEA for the purposes of awarding custody and denied the mother’s motion to vacate that determination, respectively. The mother also contends that the court erred in denying her motion to relieve the attorney for the children in an order dated December 12, 2013 (hereinafter the December 2013 order).Contrary to the mother’s contention, she was not deprived of her statutory right to counsel (see Matter of Darryl B.W. v. Sharon M.W., 49 AD3d 1246, 1247; Matter of Fralix v. Thornock, 9 AD3d 890, 890; see also Matter of Stearns v. Crawford, 112 AD3d 1325, 1326). Although the mother did not have counsel at the April 3, 2013, proceeding on the father’s order to show cause, the Supreme Court assigned counsel for the mother before the return date of the father’s motion. Under the circumstances of this case, the mother’s statutory right to counsel was not violated (see Matter of Darryl B.W. v. Sharon M.W., 49 AD3d at 1247; Matter of Fralix v. Thornock, 9 AD3d at 890; see also Matter of Stearns v. Crawford, 112 AD3d at 1326).Moreover, given the totality of the circumstances, the Supreme Court’s initial invocation of emergency jurisdiction pursuant to the UCCJEA was warranted (see Domestic Relations Law §76-c[1]; Matter of Christianti G. [Diana S.], 125 AD3d 859, 860; Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d 77, 87; Matter of Santiago v. Riley, 79 AD3d 1045, 1046). The father’s moving papers and testimony established facts supporting his contention that there was “‘an emergency that [was] real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ren] from imminent physical or emotional danger’” (Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d at 87, quoting Matter of Severio P. v. Donald Y., 128 Misc 2d 539, 542 [Fam Ct, Richmond County]). Notably, the mother’s counsel did not seek to adjourn the father’s motion for custody or submit any opposition papers to it. Nothing in the mother’s motion to vacate the June 2013 order, filed nearly a year later and after 11 days of trial testimony on the issue of custody, supports the mother’s contention that the court erred in exercising temporary emergency jurisdiction. The court’s subsequent determination that New York had become the children’s home state and that it had jurisdiction to issue a final order of custody also was appropriate since no prior custody order had been issued by a court in Virginia and the mother never commenced a custody proceeding in Virginia, either before or after the commencement of this action in New York (see Domestic Relations Law §76-c[2]; Matter of Tin Tin v. Thar Kyi, 92 AD3d 1293, 1293-1294).In determining issues of custody, the most important factor to be considered is the interests of the children, and “we accord considerable deference to the [trial] court’s assessment of the parties, inasmuch as the assessment rests on that court’s superior position to evaluate the witnesses’ demeanor and credibility” (Matter of Wright v. Stewart, 131 AD3d 1256, 1257; see Eschbach v. Eschbach, 56 NY2d 167, 171). Here, the Supreme Court’s determination regarding custody is supported by a sound and substantial basis, and we find no basis to disturb it.The mother contends that the Supreme Court erred when it denied her motion to relieve the attorney for the children in the December 2013 order. As a general rule, we do not consider any issue raised on a subsequent appeal that could have been raised in an earlier appeal which was dismissed for failure to perfect, although this Court has the inherent jurisdiction to do so (see Bray v. Cox, 38 NY2d 350, 353). Here, the mother’s appeal from the December 2013 order was dismissed for failure to perfect (see id. at 353), and we decline to exercise our jurisdiction to determine the merits of this issue as it could have been raised on that appeal.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.Miguel Rodriguez, Jr., res-ap, v. 250 Park Avenue, LLC appellants-res — (Index No. 14785/12)In an action to recover damages for personal injuries, the defendants appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Suffolk County (Mark D. Cohen, J.), dated August 28, 2015, as amended by a stipulation entered February 2, 2016. The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.7(e)(1). The order, insofar as cross-appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the common-law negligence cause of action and so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g), and denied the plaintiff’s cross motion for summary judgment on so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g).ORDERED that the order, as amended, is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the common-law negligence cause of action, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g), and substituting therefor a provision denying that branch of the motion; as so modified, the order, as amended, is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.The plaintiff alleges that he was injured while employed as an elevator mechanic at a commercial building in Brooklyn (hereinafter the premises) and working inside an enclosed concrete crawl space underneath the elevator motor room known as a “secondary.” According to the plaintiff, while the elevator was in operation and he was moving to the exit hatch, he tripped and his left arm was injured when it was caught inside a pulley system called a sheave that had been activated when his assistant began to operate the elevator. The plaintiff subsequently commenced this action against the defendants, 250 Park Avenue, LLC, the owner of the premises, and Colliers ABR, Inc., the manager of the premises. The plaintiff alleged that the defendants are liable for his injuries based upon, inter alia, common-law negligence and violations of Labor Law §241(6). The Labor Law §241(6) cause of action was predicated on, inter alia, the defendants’ alleged violations of 12 NYCRR 23-1.7(e)(1) and 23-1.12(e) and (g). The defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g). The Supreme Court, inter alia, granted that branch of the defendants’ motion which was for summary judgment dismissing the common-law negligence cause of action, and granted that branch of their motion which was for summary judgment dismissing the Labor Law §241(6) cause of action except insofar as it was predicated on an alleged violation of 12 NYCRR 23-1.7(e)(1). The court denied the plaintiff’s cross motion for summary judgment on the Labor Law §241(6) cause of action insofar as it was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g). The defendants appeal and the plaintiff cross-appeals.The defendants failed to establish, prima facie, that the plaintiff’s act of moving across the secondary to the entry/exit hatchway while the elevator sheave was in operation “was so ‘extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct’ as to constitute ‘a superseding act which breaks the causal nexus’” (Baumann v. Metropolitan Life Ins. Co., 17 AD3d 260, 262 , quoting Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315). Consequently, there are triable issues of fact with respect to whether the plaintiff’s conduct constituted a substantial factor in causing the accident and, if so, to what extent the plaintiff was responsible for the accident (see Baumann v. Metropolitan Life Ins. Co., 17 AD3d at 262; Mugavero v. Windows By Hart, Inc., 69 AD3d at 695).“Labor Law §241(6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Perez v. 286 Scholes St. Corp., 134 AD3d 1085, 1086 [internal quotation marks omitted]). ”To establish liability under Labor Law §241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case” (Aragona v. State of New York, 147 AD3d 808, 809; see Perez v. 286 Scholes St. Corp., 134 AD3d at 1086; Ferrero v. Best Modular Homes, Inc., 33 AD3d 847, 851). The predicate Industrial Code provision must “set[ ] forth specific safety standards” (Hricus v. Aurora Contrs., Inc., 63 AD3d 1004, 1005 [internal quotation marks omitted]; see St. Louis v. Town of N. Elba, 16 NY3d 411, 414).We agree with the Supreme Court’s determination to deny that branch of the defendants’ motion which was for summary judgment dismissing so much of the Labor Law §241(6) cause of action as was predicated on an alleged violation of 12 NYCRR 23-1.7(e)(1). The defendants did not demonstrate, prima facie, that this provision of the Industrial Code lacked the requisite specificity to support a Labor Law §241(6) cause of action (see Aragona v. State of New York, 147 AD3d at 809; Jara v. New York Racing Assn., Inc., 85 AD3d 1121, 1123). The defendants also failed to demonstrate, prima facie, that this Industrial Code provision was inapplicable to the facts of this case (see Zaino v. Rogers, 153 AD3d 763, 765; Aragona v. State of New York, 147 AD3d at 809; Torres v. Forest City Ratner Cos., LLC, 89 AD3d 928, 929). Accordingly, the court properly denied that branch of the defendants’ motion regardless of the sufficiency of the plaintiff’s opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Moreover, the Supreme Court should not have granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the Labor Law §241(6) cause of action as was predicated on alleged violations of 12 NYCRR 23-1.12(e) and (g). Contrary to the defendants’ contentions, 12 NYCRR 23-1.12(e) and (g) are both sufficiently specific to support a Labor Law §241(6) cause of action (see Pereira v. Quogue Field Club of Quogue, Long Is., 71 AD3d 1104; cf. Palumbo v. Transit Tech., LLC, 144 AD3d 773, 774; Ying Choy Chong v. 457 W. 22nd St. Tenants Corp., 144 AD3d 591, 592). Despite the defendants’ contention that the elevator sheave was protected by virtue of its location (see 12 NYCRR 23-1.12[e]) inside the secondary (see 12 NYCRR 23-1.12[g]), the plaintiff, through his expert, raised a triable issue of fact regarding the adequacy of this form of protection with respect to an elevator mechanic performing work inside the secondary. To the extent that the defendants contend that 12 NYCRR 23-1.12(e) is inapplicable because it permits removal of a required enclosure “when starting a machine or for machine adjustment or maintenance,” such contention is unavailing. Since the plaintiff has not contended that, at the time of his accident, he was operating or otherwise performing work on the sheave, the safety requirements specified by 12 NYCRR 23-1.12(e) remain applicable. Thus, the court should have denied that branch of the defendants’ motion which was for summary judgment dismissing so much of the Labor Law §241(6) cause of action as was predicated on violations of 12 NYCRR 23-1.12(e) and (g). For the same reasons, the plaintiff, on his cross motion for summary judgment in his favor, failed to establish his prima facie entitlement to judgment as a matter of law, and the court properly denied the plaintiff’s cross motion (see Alvarez v. Prospect Hosp., 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 562).The Supreme Court also should not have granted that branch of the defendants’ motion which was for summary judgment dismissing the common-law negligence cause of action as the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law (see Martinez v. Khaimov, 74 AD3d 1031, 1033; Thorne v. Cauldwell Terrace Constr. Corp., 63 AD3d 826, 827).The defendants’ remaining contentions are without merit.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Chambers, J.P.; Cohen, Duffy and Connolly, JJ.MATTER of Harmonee B. (Anonymous). Administration for Childrens Services, res; Roy B. (Anonymous), ap — (Docket No. NA-22567-15)Deana Balahtsis, New York, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and MacKenzie Fillow of counsel), for respondent.Karen P. Simmons, Brooklyn, NY (Rachel J. Stanton and Janet Neustaetter of counsel), attorney for the child.In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of fact-finding of the Family Court, Kings County (Ilana Gruebel, J.), dated February 3, 2017. The order of fact-finding, upon a decision of the same court dated February 2, 2017, made after a hearing, found that the father derivatively abused the subject child. The notice of appeal from the decision is deemed to be a notice of appeal from the order of fact-finding (see CPLR 5512[a]).ORDERED that the order of fact-finding is affirmed, without costs or disbursements.The appellant is the father of the subject child, and, for approximately 18 months, he lived with the child, the mother of the child, and the mother’s two other minor daughters (hereinafter together the siblings). Thereafter, following a domestic dispute, the mother moved out with all three children. The mother subsequently returned the subject child to the father. The Administration for Children’s Services (hereinafter ACS) then commenced a child protective proceeding pursuant to Family Court Act article 10 against the father, alleging that he derivatively abused the subject child. According to ACS, the father had sexually abused the subject child’s siblings during the time when they had all lived in the household, and the abuse took place in the household. After a fact-finding hearing, the Family Court found that the father had sexually abused the siblings, and that as a result, he had derivatively abused the subject child.Contrary to the father’s contention, there is no basis in the record to disturb the Family Court’s assessment of the credibility of the witnesses at the fact-finding hearing (see Matter of Ebony S. [Earlind G.], 123 AD3d 1136, 1137).We agree with the Family Court that ACS established that the father had sexually abused the siblings (see Matter of Brianna M. [Corbert G.], 152 AD3d 600, 601-602; Matter of Jamel T. [Gemayel T.], 120 AD3d 504, 505) and that the father’s acts placed the subject child at imminent risk of abuse. Although a finding of abuse or neglect of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected (see Matter of Dayannie I.M. [Roger I.M.], 138 AD3d 747, 749; Matter of Harmony M.E. [Andre C.], 121 AD3d 677, 679-680; Matter of Monica C.M. [Arnold A.], 107 AD3d 996, 997), here, the father’s sexual abuse of the siblings, which occurred while the subject child was present in the home, evinced the father’s flawed understanding of his duties as a parent and his impaired parental judgment sufficient to support the court’s finding of derivative abuse (see Family Ct Act §1046[a][i]; Matter of Dayannie I.M. [Roger I.M.], 138 AD3d at 749-750; Matter of Trenasia J. [Frank J.], 107 AD3d 992, 993-994, affd 25 NY3d 1001).The father’s remaining contentions are without merit.Accordingly, the Family Court’s determination that the father derivatively abused the subject child was supported by a preponderance of the evidence.CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Miller, Duffy and Lasalle, JJ.PEOPLE, etc., res, v. Rakim Paulin, ap — (Ind. No. 10048/10)Steven A. Feldman, Uniondale, NY, for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J.), rendered October 27, 2016, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant previously appealed from a judgment rendered June 29, 2011, convicting him of, among other crimes, criminal sale of a controlled substance in the third degree. This Court reversed that judgment of conviction and ordered a new trial (see People v. Paulin, 140 AD3d 985). The defendant subsequently agreed to plead guilty to one count of criminal possession of a controlled substance in the fifth degree in exchange for a promised sentence of 2  years of imprisonment plus 1 year of postrelease supervision. In the judgment appealed from, rendered October 27, 2016, the County Court imposed the promised sentence of 2  years of imprisonment plus 1 year of postrelease supervision.The defendant contends that the County Court erred in imposing a 1-year period of postrelease supervision at sentencing, because he had already served 6 years of imprisonment pursuant to the judgment rendered June 29, 2011. Contrary to the defendant’s contention, the court properly imposed the sentence of 2  years of imprisonment plus 1 year of postrelease supervision at the sentencing proceeding (see Penal Law §§70.30[3], [5]; 70.45[1]; cf. People v. Marinaccio, 297 AD2d 754, 755). To the extent that the defendant contends that he is entitled to credit for the time he served in prison pursuant to the judgment rendered June 29, 2011, his contention is not properly before this Court on direct appeal from the judgment rendered October 27, 2016 (see People v. Person, 256 AD2d 1232, 1232-1233; People v. Searor, 163 AD2d 824; People v. Curtis, 143 AD2d 1030, 1030; People v. Vivenzio, 103 AD2d 1044, 1045; People v. Walters, 91 AD2d 843; People v. Nyemchek, 67 AD2d 735; People v. Blake, 39 AD2d 587). Rather, any such argument must be raised “by way of a proceeding pursuant to CPLR article 78″ (People v. Curtis, 143 AD2d at 1030; see People v. Searor, 163 AD2d 824; People v. Walters, 91 AD2d 843; People v. Pugh, 51 AD2d 1047).RIVERA, J.P., MILLER, DUFFY and LASALLE, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.MATTER of Robert Cumberland, pet, v. Anthony J. Annucci, etc., res — (Index No. 1391/16)Robert Cumberland, Comstock, NY, appellant pro se.Barbara D. Underwood, Acting Attorney General, New York, NY (Andrew W. Amend and David Lawrence III of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review a determination of the Director of the Special Housing/Inmate Disciplinary Program, on behalf of the respondent, Anthony J. Annucci, Acting Commissioner of the Department of Corrections and Community Supervision, dated June 15, 2016, which affirmed a determination of a hearing officer dated April 26, 2016, made after a tier III disciplinary hearing, finding that the petitioner was guilty of violating prison disciplinary rules 113.10 and 113.11 (7 NYCRR 270.2[B][14][i], [ii]), and imposing penalties.ADJUDGED that the petition is granted, on the law, without costs or disbursements, the determination is annulled, the respondent is directed to expunge all references to the determination from the petitioner’s institutional record, and the matter remitted to the respondent for further proceedings in accordance herewith, if the respondent be so advised (see Matter of Harvey v. Prack, 143 AD3d 711).Following a disciplinary hearing, the petitioner, an inmate in the custody of the New York State Department of Corrections and Community Supervision, was found guilty of violating prison disciplinary rules 113.10 and 113.11 (7 NYCRR 270.2[B][14][i], [ii]). In a determination dated June 15, 2016, the respondent affirmed the hearing officer’s determination, and the petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the respondent’s determination.“A prison disciplinary determination made as a result of a hearing at which evidence was taken pursuant to direction by law must be supported by substantial evidence” (Matter of Adamson v. Barto, 37 AD3d 597, 598; see CPLR 7803[4]; Matter of Bryant v. Coughlin, 77 NY2d 642, 647; Matter of Jackson v. Annucci, 149 AD3d 1077, 1078). ”In order to sustain a determination of guilt, a court must find that the disciplinary authorities offered ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’” (Matter of Adamson v. Barto, 37 AD3d at 598, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180).Here, the petitioner contends that the determination that he violated Rule 113.11 (7 NYCRR 270.2[B][14][ii]), which prohibits an inmate from possessing “any authorized item that has been altered in any manner so as to change its original intent and/or purpose,” was not supported by substantial evidence. We agree. There was no evidence submitted at the hearing that the item the petitioner was alleged to have possessed was originally an authorized item. Accordingly, the determination sustaining that charge must be annulled (cf. Matter of Jackson v. Gerbing, 150 AD3d 734, 736). We note that the petitioner does not challenge, on substantial evidence grounds, the finding that he violated rule 113.10, which prohibits the possession of weapons (see 7 NYCRR 270.2[b][14][i]).A prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant (see Matter of Stallone v. Fischer, 67 AD3d 125, 128), but there are minimum standards for disciplinary hearings. The rules of the Department of Corrections and Community Supervision expressly provide that inmates have a conditional right to call witnesses:“The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented” (7 NYCRR 253.5[a]). Here, the petitioner did not dispute that the item in question was found in his cell, but he contended that the item must have been placed by someone else, and he asked that the superior officer who provided the information upon which a sergeant authorized the search be called as a witness. The hearing officer incorrectly ruled that the superior officer’s testimony was not needed simply because, as the sergeant testified, the superior officer had provided reliable information in the past. The hearing officer overlooked the fact that, absent any countervailing consideration, such as a specific threat to institutional safety or correctional goals, the petitioner was entitled to have the superior officer asked about the basis of his knowledge that contraband could be found in the petitioner’s cell (cf. People v. Oglesby, 121 AD3d 818, 819-820; People v. Garcia, 284 AD2d 479, 480).Since the Department of Corrections and Community Supervision failed to adhere to its own rule in the conduct of the hearing (see Matter of Salinsky v. Rodriguez, 155 AD3d 1214, 1215; Matter of Mingo v. Chappius, 106 AD3d 1160, 1161), the determination must be annulled, all references to the determination must be expunged from the petitioner’s institutional record, and the matter remitted to the respondent for further proceedings, if the respondent be so advised (see Matter of Harvey v. Prack, 143 AD3d at 712; Matter of Marshall v. Fischer, 103 AD3d 726, 727).In light of our determination, we need not address the petitioner’s remaining contentions.BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.MATTER of Marta Tejada, ap, v. City of New York res — (Index No. 13734/15)In a proceeding pursuant to General Municipal Law §50-e(5) to deem a late notice of claim timely served nunc pro tunc, the petitioner, Marta Tejada, appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered April 14, 2016, which denied the petition and dismissed the proceeding.ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is granted.On June 3, 2015, the petitioner, Marta Tejada, allegedly was injured when a vehicle operated by Sara Cedeno crossed over a divider in the roadway and entered the opposite lane, in which the petitioner was driving her vehicle, resulting in the collision of the vehicles. In her timely notice of claim dated August 6, 2015, Cedeno alleged that “the left front tire of her vehicle went over a half open, half closed manhole cover which caused her [vehicle] to pitch wildly out of her control and caused her to travel across the median and into oncoming traffic where her motor vehicle was permanently disabled across the roadway such that a car approaching from the rear ‘T-boned’ her vehicle.” The police accident report noted statements of Cedeno and of a witness to the accident that Cedeno swerved “to avoid an open manhole, causing her to go across the median,” where she was “rear ended” by the petitioner’s vehicle. The report indicated that both Cedeno and the petitioner were injured and taken to a hospital.The petitioner filed a notice of claim with the City of New York on November 12, 2015. By order to show cause dated January 11, 2016, the petitioner sought to deem her late notice of claim previously served upon the City to have been timely served nunc pro tunc. The petition was supported by, inter alia, the police accident report, work orders from the New York City Department of Environmental Protection, and Cedeno’s notice of claim. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.In determining whether to deem a late notice of claim timely served nunc pro tunc, the court must consider several factors, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim accrued or within a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in maintaining its defense, and whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim and for the delay in seeking leave to serve a late notice of claim (see General Municipal Law §50-e[5]; Matter of Shun Mao Ma v. New York City Health & Hosps. Corp., 153 AD3d 529, 530; Matter of Devivo v. Town of Carmel, 68 AD3d 991, 992; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 139).While the presence or the absence of any one of the factors is not necessarily determinative (see Matter of Chambers v. Nassau County Health Care Corp., 50 AD3d 1134), whether the public corporation had actual knowledge of the essential facts constituting the claim is of great importance (see Matter of Gonzalez v. City of New York, 60 AD3d 1058, 1059; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d at 147). The public corporation must have “knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim,” and not merely some general knowledge that a wrong has been committed (Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d at 148; see Matter of Devivo v. Town of Carmel, 68 AD3d at 992; Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832; Pappalardo v. City of New York, 2 AD3d 699). A petitioner’s lack of a reasonable excuse for the delay in serving a timely notice of claim is not necessarily fatal when weighed against other relevant factors (see Matter of Davis v. County of Westchester, 78 AD3d 698, 699; Matter of Kumar v. City of New York, 52 AD3d 517, 518; Jordan v. City of New York, 41 AD3d 658, 660).The petitioner, Tejada, demonstrated that the City acquired timely, actual knowledge of the essential facts constituting her claim by way of the timely notice of claim served upon it by Cedeno (see Matter of Jaffier v. City of New York, 148 AD3d 1021, 1023; Matter of Joy v. County of Suffolk, 89 AD3d 1025; Jordan v. City of New York, 41 AD3d at 660; Matter of Alvarenga v. Finlay, 225 AD2d 617; Matter of McAdams v. Police Dept. of Town of Clarkstown, 184 AD2d 847, 848; Fenton v. County of Dutchess, 148 AD2d 573). Cedeno’s notice of claim specifically described the nature of the accident between Cedeno and the petitioner. Inasmuch as the City acquired timely, actual knowledge of the essential facts of the petitioner’s claim, the petitioner made an initial showing that the City was not prejudiced by her delay in serving a notice of claim (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 466).In opposition to the petitioner’s initial showing, the City conclusorily asserted that it had been denied the opportunity to conduct a prompt and thorough investigation and that the knowledge of witnesses “may be forever destroyed by the lapse of time.” The City’s assertions were insufficient to rebut the petitioner’s initial showing of lack of prejudice, as the City failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits (see id. at 467-468). The City did not explain how an investigation of the petitioner’s claim would be different in kind and nature to the investigation into Cedeno’s claim. The City’s remaining contentions with respect to its claim of substantial prejudice are either improperly raised for the first time on appeal or without merit (see Matter of Kerner v. County of Nassau, 150 AD3d 1234, 1238; Shahid v. City of New York, 144 AD3d 1127, 1129-1130; Matter of Ruffino v. City of New York, 57 AD3d 550, 551; Segreto v. Town of Oyster Bay, 66 AD2d 796).Accordingly, the petition to deem the late notice of claim timely served nunc pro tunc should have been granted.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.Bonnie Epstein, ap, v. MTA Long Island Bus, et al., res — (Index No. 14563/09)Eric H. Green, New York, NY (Marc Gertler of counsel), for appellant.Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Jinan Monique Arafat of counsel), for respondents.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), dated June 29, 2015. The order, insofar as appealed from, (1) granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury within the meaning of Insurance Law §5102(d), and (2), upon renewal, in effect, vacated the determination in a prior order of the same court dated September 20, 2011, denying the defendants’ motion for summary judgment dismissing the complaint and, thereupon, granted that branch of the defendants’ renewed motion which was for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).ORDERED that the order dated June 29, 2015, is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury within the meaning of Insurance Law §5102(d) is denied, and upon renewal, the determination in the order dated September 20, 2011, denying the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) is adhered to.The plaintiff commenced this action to recover damages for injuries she contends she sustained when she was struck by a bus owned by the defendants MTA Long Island Bus and Metropolitan Transportation Authority and operated by the defendant Juan Bethel. At the time of the accident, the plaintiff had been walking in the vicinity of Middle Neck Road near South Station Plaza in Great Neck. In her bill of particulars, the plaintiff alleged that, as a result of the accident, she sustained the “permanent loss of use of the cervical, lumbar spines, both upper and lower left extremities and as a result, the entire body.” She further alleged that she was confined to her home for 20 weeks following the accident.By order dated September 20, 2011, the Supreme Court denied the defendants’ initial motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). On May 13, 2014, the defendants moved (1) pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury within the meaning of Insurance Law §5102(d), and (2) for leave to renew their prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). In support of that motion, they submitted evidence that the plaintiff was involved in another car accident 2  years after the accident at issue that resulted in injuries similar to the injuries alleged in this case. By order dated June 29, 2015, the court granted the defendants’ motion. On the issue of summary judgment, the court determined that, based on the new evidence presented upon renewal regarding the plaintiff’s subsequent accident, the defendants made a prima facie showing that the plaintiff did not sustain a serious injury as a result of the accident in this case, and that the plaintiff failed to raise a triable issue of fact in opposition thereto. The plaintiff appeals from so much of that order as, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury within the meaning of Insurance Law §5102(d) and, upon renewal, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).The Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to plead that she sustained a serious injury under any category of Insurance Law §5102(d). The plaintiff’s bill of particulars sufficiently alleges facts that, if true, demonstrate that she sustained injuries under both the permanent consequential limitation of use and 90/180-day categories of Insurance Law §5102(d) (see generally Leon v. Martinez, 84 NY2d 83, 87-88).The Supreme Court also should have, upon renewal, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law §5102(d) as a result of the subject accident (see Stead v. Serrano, 156 AD3d 836; Che Hong Kim v. Kossoff, 90 AD3d 969, 969; see also Toure v. Avis Rent A Car Sys., 98 NY2d 345, 357). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Stead v. Serrano, 156 AD3d 836; Che Hong Kim v. Kossoff, 90 AD3d at 969).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Feng Li ap, v. Diana Peng, etc. res — (Index No. 707034/14)In an action, inter alia, for declaratory relief, the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Valerie Brathwaite Nelson, J.), entered March 11, 2015, which denied their motion for summary judgment on the seventh cause of action, (2) an order of the same court entered June 29, 2015, which denied their motion for leave to serve a supplemental pleading, (3) an order of the same court entered July 6, 2015, which granted the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the amended complaint as barred by the doctrine of collateral estoppel, and (4) an order of the same court entered July 13, 2015, which denied, as academic, the defendants’ motion to quash two judicial subpoenas duces tecum and ad testificandum issued to nonparties.ORDERED that the appeal from the order entered July 13, 2015, is dismissed, as the plaintiffs are not aggrieved thereby (see CPLR 5511); and it is further,ORDERED that the order entered July 6, 2015, is affirmed; and it is further,ORDERED that the appeals from the orders entered March 11, 2015, and June 29, 2015, are dismissed as academic in light of our determination of the appeal from the order entered July 6, 2015; and it is further,ORDERED that one bill of costs is awarded to the defendants.The defendants are former clients and the representatives of the estates of former clients (hereinafter collectively the clients) of the plaintiff Feng Li, an attorney who represented the clients in an action commenced in the Supreme Court, Queens County (hereinafter the underlying action), against Fabian A. Sy and others (hereinafter collectively the Sy defendants), inter alia, to recover damages for fraud and breach of fiduciary duty. The underlying action was commenced by other counsel in 1990, and the clients engaged Feng Li in 2005. The retainer agreement provided that Feng Li’s fee for prosecuting the underlying action would be determined based on the “net recovery,” defined to exclude prejudgment interest. The retainer agreement listed a New Jersey address and phone number for Feng Li.In March 2008, the Supreme Court, after a nonjury trial, entered judgment in the underlying action in favor of the clients and against the Sy defendants in the total sum of approximately $3.4 million, consisting of principal awards to the clients totaling approximately $1.3 million, plus interest from September 1990, and costs and disbursements.The Sy defendants appealed from the judgment, and the clients, represented by Feng Li, cross-appealed. Pending determination of the appeal and cross appeal, the Sy defendants posted an undertaking with the Commissioner of Finance. In a decision and order dated May 5, 2009, this Court affirmed the judgment (see Huang v. Sy, 62 AD3d 660), and the Commissioner of Finance thereafter released to Feng Li so much of the undertaking as would satisfy the March 2008 judgment, plus postjudgment interest.Around the time that the Commissioner of Finance released the funds, a dispute arose between Feng Li and the clients as to the calculation of Feng Li’s legal fees in connection with the underlying action. In late August 2009, while the fee dispute was still unresolved, Feng Li disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself, and remitted the remaining amount, approximately $2.8 million, to the clients. Feng Li was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee (see Matter of Feng Li, 149 AD3d 238; In re Feng Li, 213 NJ 523).On September 11, 2009, the clients commenced an action against Feng Li and his law firm in the Superior Court of New Jersey, Middlesex County (hereinafter the New Jersey action), seeking a judgment declaring the amount of fees to which Feng Li was entitled for his work in connection with the underlying action. The clients also moved in the New Jersey action for a temporary restraining order barring Feng Li from dissipating the disputed funds. Feng Li opposed the motion and cross-moved to dismiss the New Jersey action on the ground, inter alia, that the New Jersey court lacked jurisdiction over the fee dispute, which should instead be brought before the courts of New York. After hearing oral argument, the New Jersey court granted the clients’ motion for a temporary restraining order and denied Feng Li’s cross motion.On September 30, 2014, Feng Li, together with the plaintiff Kenneth Ellman (hereinafter together the plaintiffs), as assignee of certain accounts receivable previously owned by Feng Li and allegedly payable by the clients, commenced this action, seeking a judgment declaring that Feng Li was entitled to the full amount of the funds he had disbursed to himself in August 2009, as well as an award of damages from the clients for breach of contract and alleged tortious conduct in challenging Feng Li’s right to the disputed funds.The clients moved for summary judgment on their complaint in the New Jersey action. Feng Li opposed the motion, arguing, inter alia, that the agreed-upon contingency fee did not include his work in collecting the judgment and on appeal in the underlying action, and reiterating his earlier contention that the New Jersey court lacked subject matter jurisdiction over the fee dispute. On January 30, 2015, the New Jersey court awarded summary judgment to the clients on their complaint, and on February 12, 2015, the New Jersey court entered a judgment in favor of the clients and against Feng Li and his firm in the total sum of approximately $1 million.The clients moved in the instant action pursuant to CPLR 3211(a)(5) to dismiss the amended complaint based on the doctrine of collateral estoppel, in light of the New Jersey judgment in their favor. In opposition, the plaintiffs continued to argue that the New Jersey court lacked subject matter jurisdiction over the fee dispute. In an order entered July 6, 2015, the Supreme Court granted the clients’ motion, finding that, as a matter of full faith and credit, the New Jersey judgment precluded the plaintiffs from relitigating the fee dispute in New York.The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349; Ryan v. New York Tel. Co., 62 NY2d 494, 500). The doctrine applies if the issue in the second action was raised, necessarily decided, and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action (see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d at 349).“The full faith and credit clause of the United States Constitution (US Const, art IV, §1) requires a judgment of one state court to have the same credit, validity, and effect in every other court of the United States, which it had in the state in which it was pronounced, to avoid the duplicate litigation of issues which have been determined by the courts of another state” (Matter of Bennett, 84 AD3d 1365, 1367; see Miller v. Miller, 152 AD3d 662, 664; Ho v. McCarthy, 90 AD3d 710, 711). The full faith and credit requirement, which encompasses the doctrines of res judicata and collateral estoppel (see San Remo Hotel, L.P. v. City & County of San Francisco, 545 US 323, 336; Khalled v. Blanc, 96 AD3d 1574, 1576), “precludes any inquiry into the merits of the judgment, the logic or consistency of the decision underlying it or the validity of the legal principles on which it is based” (Cadle Co. v. Tri-Angle Assoc., 18 AD3d 100, 103).“As a matter of full faith and credit, review by the courts of this State is limited to determining whether the rendering court had jurisdiction, an inquiry which includes due process considerations” (Fiore v. Oakwood Plaza Shopping Ctr., 78 NY2d 572, 577). Here, however, Feng Li previously challenged the jurisdiction of the New Jersey court, and the New Jersey court found that it had jurisdiction over the fee dispute. As a result, the plaintiffs are barred from relitigating that issue in the Supreme Court (see Baldwin v. Iowa State Traveling Men’s Assn., 283 US 522, 524-525; Vander v. Casperson, 12 NY2d 56, 59-60; CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 AD2d 81, 91-92).The Supreme Court properly determined that the judgment entered in the New Jersey action had conclusively disposed of all of the plaintiffs’ claims and, therefore, the plaintiffs are collaterally estopped from maintaining the instant action (see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d at 350).The plaintiffs’ remaining contentions regarding the order entered July 6, 2015, are without merit.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.MATTER of Barry Manuel, pet, v. Thomas Griffin, etc., res — (Index No. 1300/16)Barry Manuel, Stormville, NY, petitioner pro se.Barbara D. Underwood, Acting Attorney General, New York, NY (Andrew W. Amend and David Lawrence III of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of the Green Haven Correctional Facility dated February 22, 2016, which affirmed a determination of a hearing officer dated February 9, 2016, made after a Tier II disciplinary hearing, finding the petitioner guilty of violating Institutional Rules of Conduct rules 106.10, 109.10, and 109.12 (7 NYCRR 270.2[B][7][i]; [10][i], [iii]) and imposing penalties.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.Contrary to the petitioner’s contentions, the misbehavior report and the hearing testimony provided substantial evidence to support the hearing officer’s determination that the petitioner violated the subject disciplinary rules (see Matter of Antrobus v. Lee, 140 AD3d 745; Matter of Burgess v. Bellnier, 138 AD3d 989; Matter of Jackson v. Prack, 137 AD3d 1133; Matter of Mitchell v. Fischer, 300 AD2d 491).RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.Deborah M. Lashlee, res, v. Samuel M. Lashlee, ap — (Index No. 7446/13)Joseph Petito, Poughkeepsie, NY, for appellant.Salvatore C. Adamo, New York, NY, for respondent,Diane P. Foley, Wappingers Falls, NY, attorney for the children.In an action for a divorce and ancillary relief, the defendant appeals from a judgment of the Supreme Court, Dutchess County (Christine A. Sproat, J.), dated July 21, 2016. The judgment, insofar as appealed from, awarded the plaintiff sole physical and legal custody of the parties’ two children, awarded the plaintiff weekly basic child support in the sum of $219.56, and, in effect, upon an order of the same court dated June 7, 2016, directed that should it become necessary to sell the marital residence, the plaintiff would be credited for the principal reduction of the mortgage and the home equity line of credit, and for payment of taxes.ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.The parties were married on April 7, 2001, and have two children together. The plaintiff filed for divorce on December 16, 2013. During the pendency of the divorce action, the plaintiff had physical custody of the parties’ children while the parties shared joint legal custody, and a pendente lite child support order was issued in favor of the plaintiff. Following trial, a judgment of divorce was entered which, inter alia, awarded sole physical and legal custody of the parties’ two children to the plaintiff and awarded her the marital residence. In addition, the Supreme Court, inter alia, imputed $50,000 of annual income to the defendant and determined his weekly child support obligation. The defendant appeals from stated portions of the judgment.There is “no prima facie right to the custody of the child in either parent” (Domestic Relations Law §§70[a]; 240[1][a]; see Friederwitzer v. Friederwitzer, 55 NY2d 89, 93; Matter of Riccio v. Riccio, 21 AD3d 1107). The essential consideration in making an award of custody is the best interests of the child (see Friederwitzer v. Friederwitzer, 55 NY2d at 94; Matter of Cardozo v. Defreitas, 87 AD3d 1138). Since custody determinations turn in large part on assessments of the credibility, character, temperament and sincerity of the parties, the court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Wallace v. Roberts, 105 AD3d 1053, 1053). Here, the Supreme Court’s determination to award the plaintiff sole physical and legal custody of the parties’ children was supported by a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d 167).“In determining a child support obligation, a court need not rely on a party’s own account of his or her finances” (Bell v. Bell, 277 AD2d 411, 412), but may, in the exercise of its considerable discretion (see Matter of Julianska v. Majewski, 78 AD3d 1182), impute income to a party based upon his or her employment history, future earning capacity, and educational background (see Matter of Bouie v. Joseph, 91 AD3d 641). The record supports the Supreme Court’s determination to impute $50,000 of annual income to the defendant based upon his past earnings, education, and future earning capacity (see Matter of Strella v. Ferro, 42 AD3d 544).The defendant’s remaining contentions are without merit.SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.MATTER of Samuel M. Lashlee, ap, v. Deborah M. Lashlee, res — (Docket No. O-1996-16)Joseph Petito, Poughkeepsie, NY, for appellant.Salvatore C. Adamo, New York, NY, for respondent.Diane P. Foley, Wappingers Falls, NY, attorney for the children.In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Dutchess County (Joseph A. Egitto, J.), entered August 29, 2016. The order, insofar as appealed from, granted those branches of the respondent’s motion which were pursuant to CPLR 3211(a)(7) to dismiss so much of the family offense petition as alleged that she committed acts constituting the family offenses of harassment in the first and second degrees.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties are divorced and have two children together. In April 2016, during the pendency of the divorce action, the petitioner (hereinafter the father) commenced this family offense proceeding against the respondent (hereinafter the mother), alleging that the youngest child “came running over to him, yelling at [him], Mommy said you’re nothing but a liar, you don’t have a job” and, on another occasion, stated “Mommy said that you kidnapped my brother.” The petition alleged, inter alia, that these acts constituted the family offenses of harassment in the first and second degrees. Thereafter, the mother moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss so much of the petition as alleged that she had committed acts constituting those two family offenses. The Family Court, inter alia, granted those branches of the motion. The father appeals.In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct Act §832; Matter of Davis v. Wright, 140 AD3d 753, 754; Matter of Frimer v. Frimer, 143 AD3d 895; Matter of Jordan v. Verni, 139 AD3d 1067; Matter of Ramdhanie v. Ramdhanie, 129 AD3d 737). However, “[a] family offense petition may be dismissed without a hearing where the petition fails to set forth factual allegations which, if proven, would establish that the respondent has committed a qualifying family offense” (Matter of Brown-Winfield v. Bailey, 143 AD3d 707, 708; see Matter of Davis v. Venditto, 45 AD3d 837). ”In determining a motion to dismiss a family offense petition pursuant to CPLR 3211(a)(7), ‘the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference’” (Matter of Xin Li v. Ramos, 125 AD3d 681, 682, quoting Matter of Arnold v. Arnold, 119 AD3d 938, 939).Contrary to the father’s contention, liberally construing the allegations of the family offense petition and giving it the benefit of every possible favorable inference, the petition failed to allege acts which, if committed by the mother, would constitute the family offenses of harassment in the first or second degree (see Family Ct Act §812[1]; Penal Law §§240.25, 240.26). Accordingly, the Family Court properly granted those branches of the mother’s motion which were to dismiss so much of the father’s family offense petition as alleged that the mother committed acts that constituted the family offenses of harassment in the first and second degrees (see CPLR 3211[a][7]; see Leon v. Martinez, 84 NY2d 83).SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.MATTER of Samuel M. Lashlee, ap, v. Deborah M. Lashlee, res — (Docket No. O-6486-15)Joseph Petito, Poughkeepsie, NY, for appellant.Salvatore C. Adamo, New York, NY, for respondent.Diane P. Foley, Wappingers Falls, NY, attorney for the children.In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Dutchess County (Joseph A. Egitto, J.), entered September 27, 2016. The order, after a hearing, dismissed the violation petition.ORDERED that the order is affirmed, without costs or disbursements.The parties are divorced and have two children together. The petitioner (hereinafter the father) filed a violation petition alleging that the respondent (hereinafter the mother) willfully violated an order of protection dated June 2, 2016, which prohibited the parties from “discuss[ing] their difficulties or any litigation in any court, pending or otherwise, with or in the presence of the children.” At the hearing, the father called the parties’ two children to testify in support of his petition, but their testimony contradicted the allegations therein. He did not call the mother to testify. The Family Court, crediting the testimony of the children, dismissed the violation petition. The father appeals.The determination as to whether a violation of a lawful order has been committed is a factual issue to be resolved by the hearing court, whose determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record (see Blamoville v. Culbertson, 151 AD3d 1058). In light of the Family Court’s credibility determinations and the evidence adduced at the hearing, the court properly dismissed the father’s violation petition.Contrary to the father’s contention, the Family Court providently exercised its discretion in declining to draw a negative inference against the mother for not testifying at the hearing. The father, as the petitioner, had the burden of proof to establish that the mother willfully violated the June 2, 2016, order of protection (see Matter of Graham v. Rawley, 140 AD3d 765), and he failed to make a prima facie showing that the mother violated the order of protection.SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.Mishelle Furze, res, v. Richard Stapen, etc., et al., def, Sandhya Nayak, etc., ap — (Index No. 503464/15)In an action, inter alia, to recover damages for medical malpractice, the defendant Sandhya Nayak appeals from an order of the Supreme Court, Kings County (Laura L. Jacobson, J.), dated September 15, 2016. The order, insofar as appealed from, granted the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Sandhya Nayak.ORDERED that the order is affirmed insofar as appealed from, with costs.On March 25, 2015, the plaintiff filed a summons and complaint against, among others, the defendants First Medcare, Inc. (hereinafter First Medcare), Jorge R. Orellana, and Sandhya Nayak, to recover damages for medical malpractice, negligent hiring and supervision, and lack of informed consent. An affidavit of service evidencing that Nayak was served pursuant to CPLR 308(2) at her usual place of abode was filed with the Kings County clerk on April 16, 2015. An additional copy of the summons and complaint was sent via certified mail to Nayak at the address of First Medcare, and the return receipt therefor was signed on or about June 22, 2015. When Nayak failed to appear or answer the complaint, the plaintiff informed First Medcare and Orellana, both of whom had answered, of Nayak’s default and requested that they notify Nayak’s insurance carrier of this action. Thereafter, Nayak served an answer dated August 20, 2015, and, by motion dated October 13, 2015, moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of jurisdiction. By papers dated November 2, 2015, the plaintiff cross-moved pursuant to CPLR 306-b to extend the time to serve Nayak. The Supreme Court determined, after a hearing to determine the validity of service, that service of process was defective and, inter alia, granted the plaintiff’s cross motion to extend the time to serve Nayak. Nayak appeals.Pursuant to CPLR 306-b, service of process was to be effected upon Nayak within 120 days of filing of the summons and complaint, which period expired on July 23, 2015. It is undisputed that the alleged medical malpractice occurred on January 23, 2013. Thus, the applicable 2 -year statute of limitations also expired on July 23, 2015 (see CPLR 214-a).The plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve Nayak with the summons and complaint was properly granted in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106). When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (id. at 105-106; see Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31-32). Here, the record established that the plaintiff exercised diligence in timely filing, and in attempting to serve Nayak and notify Nayak and her insurance carrier of the summons and complaint within the 120-day period following the filing of the summons and complaint, although the attempt to serve Nayak was ultimately deemed defective (see Thompson v. City of New York, 89 AD3d 1011, 1012). While the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the plaintiff promptly cross-moved for an extension of time to serve Nayak, and there was no identifiable prejudice to Nayak attributable to the delay in service (see Castillo v. JFK Medport, Inc., 116 AD3d 899; Selmani v. City of New York, 100 AD3d 861, 862; Thompson v. City of New York, 89 AD3d at 1012; DiBuono v. Abbey, LLC, 71 AD3d 720; Scarabaggio v. Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95).ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Rivera, Austin and Lasalle, JJ.MATTER of Denia M. E. C. (Anonymous), ap, v. Carlos R. M. O. (Anonymous), res — (Docket No. G-3747-17)Bruno J. Bembi, Hempstead, NY, for appellant.In a guardianship proceeding pursuant to Family Court Act article 6, the mother appeals from two orders of the Family Court, Nassau County (Robert LoPresti, Ct. Atty. Ref.), both dated October 3, 2017. The first order, after a hearing, dismissed the mother’s petition to be appointed the subject child’s guardian. The second order, after a hearing, denied the mother’s motion for the issuance of an order, inter alia, making specific findings so as to enable the subject child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J).ORDERED that the orders are reversed, on the law and the facts, without costs or disbursements, the mother’s petition to be appointed guardian of the subject child is granted, the mother’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J) is granted, and it is found that reunification of the child with his father is not viable due to the father’s death, and that it would not be in the child’s best interests to return to Honduras, his previous country of nationality and last habitual residence.In August 2016, Roberto C. E. C. (hereinafter the child) was released to his mother’s custody after entering the United States from Honduras. In April 2017, the mother commenced this proceeding pursuant to Family Court Act article 6 to be appointed guardian for the child, for the purpose of obtaining an order declaring that the child is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to abuse, neglect, abandonment, or similar circumstances, and that it would not be in his best interests to be returned to Honduras, his previous country of nationality and last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC §1101(a)(27)(J). Thereafter, the mother moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Following a hearing, the Family Court, in two orders dated October 3, 2017, dismissed the guardianship petition and denied the motion, respectively. The mother appeals.“When considering guardianship appointments, the infant’s best interests are paramount” (Matter of Axel S.D.C. v. Elena A.C., 139 AD3d 1050, 1051; see Matter of Alamgir A., 81 AD3d 937, 938; SCPA 1707[1]). Our independent review of the record establishes that, under the particular circumstances of this case, the Family Court erred in determining that the mother should not be appointed guardian (see generally Family Ct Act §355.5[7][d][ii]; Social Services Law §371[7]; Matter of Marisol N.H., 115 AD3d 185, 190; Matter of Maura A.R.-R. [Santos F.R.---Fidel R.], 114 AD3d 687, 688; Matter of Alamgir A., 81 AD3d at 938). Rather, it is in the child’s best interests to appoint the mother as the child’s guardian and, accordingly, we grant the mother’s petition.Pursuant to 8 USC §1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a special immigrant juvenile is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a child to qualify for SIJS, a court must find that reunification of the child with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC §1101[a][27][J][i]; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795), and that it would not be in the child’s best interests to be returned to his or her previous country of nationality or country of last habitual residence (see 8 USC §1101[a][27][J][ii]; 8 CFR 204.11[c][6]; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 795).This Court’s power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own factual determinations, we may do so (see Matter of Gabriel H.M. [Juan B.F.], 116 AD3d 855, 857; Matter of Kamaljit S., 114 AD3d 949). Based upon our independent factual review, we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the granting of the mother’s guardianship petition (see Matter of Silvia N.P.L. v. Estate of Jorge M.N.P., 141 AD3d 656, 657; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 975). Moreover, the child’s father is deceased and, therefore, reunification is not possible (see Matter of Luis R. v. Maria Elena G., 120 AD3d 581; Matter of Cristal M.R.M., 118 AD3d 889). We further find that it would not be in the child’s best interests to be returned to Honduras, given the hearing evidence establishing that there is no one there who is able to care for him, and that the child was threatened with violence if he returned.Thus, the Family Court erred in denying the mother’s motion for the issuance of an order making the requisite declaration and special findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that the child is eligible to petition for SIJS status, that reunification of the child with one or both of his parents is not viable due to the death of his father, and that it would not be in the best interests of the child to be returned to Honduras.MASTRO, J.P., RIVERA, AUSTIN and LASALLE, JJ., concur.By Rivera, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.MATTER of Franklin D. U. (Anonymous), ap — (Docket Nos. D-3360-17, D-4535-17)Arza Feldman, Uniondale, NY, for appellant.Dennis M. Brown, County Attorney, Central Islip, NY (Ralph M. C. Sabatino of counsel), for respondent.In related juvenile delinquency proceedings, Franklin D. U. appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Philip Goglas, J.), dated June 19, 2017. The order of fact-finding and disposition, insofar as appealed from, adjudicated Franklin D. U. a juvenile delinquent upon a finding that he committed acts which, if committed by an adult, would have constituted the crimes of menacing in the second degree (two counts) and criminal possession of a weapon in the fourth degree (two counts), and placed him in the custody of the New York State Office of Children & Family Services for a period of one year.ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793), we find that it was legally sufficient to establish that the appellant committed acts which, if committed by an adult, would have constituted the crimes of menacing in the second degree (two counts) and criminal possession of a weapon in the fourth degree (two counts) (see Penal Law §§10.00[13]; 120.14[1]; 265.01[2]). Moreover, upon our independent review of the record, we are satisfied that the Family Court’s fact-finding determination as to these counts was not against the weight of the evidence (see Matter of Cromwell S., 154 AD3d 857, 858; Matter of Heydi M., 154 AD3d 759, 761).RIVERA, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Duffy and Connolly, JJ.Tammy L. Sheehan, res-ap, v. Lawrence F. Sheehan, appellant-res — (Index No. 5310/12)Tammy L. Sheehan, Pleasant Valley, NY, respondent-appellant pro se.In an action for a divorce and ancillary relief, the defendant appeals and the plaintiff cross-appeals from stated portions of a judgment of the Supreme Court, Dutchess County (Maria G. Rosa, J.), entered March 2, 2016. The judgment, insofar as appealed from, upon a decision of the same court dated December 21, 2015, and upon findings of fact and conclusions of law of the same court dated February 29, 2016, made after a nonjury trial, awarded the plaintiff 26 percent of the appreciated value of the defendant’s business, equitably distributed the appreciated net cash value of the defendant’s two life insurance policies and the proceeds of the expected foreclosure sale of the marital residence, awarded the plaintiff monthly maintenance in the sum of $2,100 for a period of three years, directed the defendant to pay the sum of $1,880 per month in child support, and awarded attorney’s fees to the plaintiff in the sum of $25,000. The judgment, insofar as cross-appealed from, failed to award the plaintiff a credit for an equitable share of funds used by the defendant to pay his separate debt during the marriage, awarded the plaintiff monthly maintenance in the sum of only $2,100 for a period of only three years, and awarded the plaintiff attorney’s fees in the sum of only $25,000.ORDERED that the judgment is modified, on the law and on the facts, (1) by deleting the provision thereof awarding the plaintiff a portion of the appreciated net cash value of the defendant’s two life insurance policies, and (2) by deleting the provision thereof awarding the plaintiff attorney’s fees in the sum of $25,000, and substituting therefor a provision awarding the plaintiff attorney’s fees in the sum of $40,000; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.The parties were married on July 16, 2000, and have two children. The defendant, who owned a business comprising a gas station and an auto repair center, was the primary wage earner for the family. The plaintiff worked part-time as a bookkeeper for the business and was the primary caregiver for the children. This action for a divorce and ancillary relief was commenced in August 2012. The matter proceeded to a trial on the issues of equitable distribution, child support, and maintenance. The parties testified at trial and presented various other witnesses to support their respective positions. They each retained experts who opined as to the value of the defendant’s business and how much it appreciated during the marriage. The Supreme Court, finding that the defendant’s expert relied on financial information that was not made available to the plaintiff’s expert, granted the plaintiff’s motion to partially preclude the defendant’s expert’s testimony.In the decision after trial, the Supreme Court accepted the valuation of the plaintiff’s expert and determined that the plaintiff would be awarded 26 percent of the appreciated value of the defendant’s business. The court recognized the defendant’s life insurance policies to be his separate property, but nevertheless determined that the plaintiff would be awarded half of their appreciated net cash value. The court equally divided the remaining assets. The court denied the plaintiff’s request for a credit for an equitable share of funds used by the defendant to pay his separate debt during the marriage. As for maintenance, the court found that the plaintiff, who was working full-time as a bookkeeper since the commencement of this action, was entitled to the sum of $2,100 per month for a period of three years. Regarding child support, the court determined that the defendant would be required to pay the sum of $1,880 per month. With respect to fees for experts and attorneys, the court determined that the parties were responsible for any outstanding fees charged by their experts, and that the plaintiff would be awarded attorney’s fees in the sum of $25,000.A judgment was issued based upon the Supreme Court’s decision. The defendant appeals, and the plaintiff cross-appeals.“‘The trial court is vested with broad discretion in making an equitable distribution of marital property… and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed’” (Nadasi v. Nadel-Nadasi, 153 AD3d 1346, 1348, quoting Gafycz v. Gafycz, 148 AD3d 679, 680).The valuation of a marital asset must be founded in economic reality (see Douglas v. Douglas, 281 AD2d 709, 711; Iwahara v. Iwahara, 226 AD2d 346, 348). However, “[t]here is no uniform rule for fixing the value of a business for the purpose of equitable distribution. Valuation is an exercise properly within the fact-finding power of the trial court, guided by expert testimony. The determination of the factfinder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques” (Wasserman v. Wasserman, 66 AD3d 880, 882 [citations omitted]; see Burns v. Burns, 84 NY2d 369, 375; Greisman v. Greisman, 98 AD3d 1079, 1081; Bricker v. Bricker, 69 AD3d 546, 547; Nissen v. Nissen, 17 AD3d 819, 821).Initially, contrary to the defendant’s contention, in light of his noncompliance with certain discovery obligations, the Supreme Court did not err in partially precluding the defendant’s expert from testifying at trial about the appreciated value of the defendant’s business (see Biggio v. Biggio, 110 AD3d 654; Raville v. Elnomany, 76 AD3d 520, 521). In addition, the court providently credited the testimony of the plaintiff’s expert who, through income-based and asset-based valuation methods, determined that the defendant’s business appreciated by $768,602.50 over the course of the marriage (see Burns v. Burns, 84 NY2d at 375; Greisman v. Greisman, 98 AD3d at 1081; Cusumano v. Cusumano, 96 AD3d 988, 989). Further, in view of the plaintiff’s direct contributions to the business, as well as her indirect contributions as a homemaker and primary caregiver for the parties’ children in this long-term marriage, we find that the court’s award of 26 percent, or $199,836.65, was a provident exercise of discretion (see Domestic Relations Law §236[B][5][d][7]; Fields v. Fields, 15 NY3d 158, 162; Arvantides v. Arvantides, 64 NY2d 1033; Hymowitz v. Hymowitz, 119 AD3d 736, 739; Golden v. Golden, 98 AD3d 647, 649).Property that is acquired by a spouse before marriage is considered separate property and is not subject to equitable distribution (see Domestic Relations Law §236[B][1][d]; Scher v. Scher, 91 AD3d 842, 844). In this case, it is undisputed that the defendant’s two life insurance policies were obtained prior to the marriage and are, therefore, his separate property. While it would have been appropriate to distribute the appreciated cash value of the policies if the defendant had made contributions to them with marital funds (see generally Hymowitz v. Hymowitz, 119 AD3d at 740; London v. London, 21 AD3d 602, 603), the evidence establishes that the premiums were not paid with marital funds. Therefore, the Supreme Court should not have awarded the plaintiff a portion of the appreciated net cash value of these policies, and we modify the judgment accordingly.The Supreme Court providently denied the plaintiff’s request for a credit for an equitable share of funds used by the defendant to pay his separate debt during the marriage. ”[W]here marital funds are used to pay off the separate debt of the titled spouse on separate property, the nontitled spouse may be entitled to a credit” (Bernholc v. Bornstein, 72 AD3d 625, 628; see Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 421; Khan v. Ahmed, 98 AD3d 471, 472-473). Here, the credible evidence established that the payments the defendant made toward his separate debt during the marriage were made with separate funds (see generally Mahoney-Buntzman v. Buntzman, 12 NY3d at 421; cf. Davidman v. Davidman, 97 AD3d 627, 628).Contrary to the defendant’s contention, it was appropriate for the Supreme Court to impute income to him for child support and maintenance purposes. ”A trial court ‘is not bound by a party’s account of his or her own finances,’ and where, as the Supreme Court properly found here, a party’s account is not believable, ‘the court is justified in finding a true or potential income higher than that claimed’” (Cusumano v. Cusumano, 96 AD3d at 989, quoting Scammacca v. Scammacca, 15 AD3d 382, 382; see Bauman v. Bauman, 132 AD3d 791, 793; DiPalma v. DiPalma, 112 AD3d 663, 664; Greisman v. Greisman, 98 AD3d at 1080).Under the circumstances of this case, the Supreme Court also providently exercised its discretion in awarding spousal maintenance to the plaintiff in the sum of $2,100 per month for a period of three years. The court limited the duration of the award to a reasonable time to allow the plaintiff to fulfill her plan to obtain her Associate’s Degree and training that will enable her to be self-supporting and regain self-sufficiency (see O’Brien v. O’Brien, 66 NY2d 576, 585; Volkerick v. Volkerick, 153 AD3d 885, 887). The plaintiff and the defendant have failed to establish that the amount or duration of the spousal maintenance award was inadequate or excessive, respectively, and, as such, the court’s determination will not be disturbed.The defendant’s contention that the annual amount of durational maintenance should have been deducted from his income in computing the amount of child support is without merit (see Domestic Relations Law §240[1-b][b][5][vii][C]; Golden v. Golden, 98 AD3d 647, 649; Kerrigan v. Kerrigan, 71 AD3d 737, 738; Smith v. Smith, 1 AD3d 870, 873).Considering the parties’ relative circumstances and other relevant factors, the award of attorney’s fees to the plaintiff in the sum of $25,000 was inadequate. Accordingly, we modify by increasing the award of attorney’s fees to the sum of $40,000 (see Domestic Relations Law §237; Daniel v. Friedman, 22 AD3d 707, 709).The parties’ remaining contentions are without merit.CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.By Dillon, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.MATTER of Pedro Irizarry, ap, v. Jaheriah Jorawar, res — (Docket Nos. V-18303-14, V-18304-14)In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Jane A. McGrady, Ct. Att. Ref.), dated March 8, 2017. The order, insofar as appealed from, after a fact-finding hearing, denied that branch of the father’s petition which sought in-person visitation with the parties’ children.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The mother and the father are the parents of two minor children. The father has been incarcerated since December 2005 for his conviction of murder in the second degree. His earliest possible parole date is in 2023. He last saw the children in 2007 or 2008, when they were both under five years old. In 2008, the mother was granted an order of protection against the father for threats he allegedly made against her by mail and telephone. Other than an exchange of correspondence between the father and the mother and children several years ago, there had been no communication between the father and the children since 2010. In 2014, the father filed a petition for visitation with the children. After a fact-finding hearing, at which the forensic evaluator, the mother, and the father testified, the Family Court determined that visitation between the father and the children was not in the children’s best interests and directed, instead, that the father be permitted to send mail correspondence to the children at an address to be provided by the mother. The father appeals.Initially, contrary to the mother’s contention, the father is aggrieved by the order since it did not award him the complete relief he requested (see CPLR 5511; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 NY2d 539, 544-545).The Family Court properly denied that branch of the father’s petition which sought in-person visitation. The paramount concern when making a visitation determination is the best interests of the children under the totality of the circumstances (see Matter of Wilson v. McGlinchey, 2 NY3d 375, 380-381; Matter of Diaz v. Garcia, 119 AD3d 682; Matter of Boggio v. Boggio, 96 AD3d 834). ”[V]isitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated” (Matter of Georghakis v. Matarazzo, 123 AD3d 711; see Matter of Granger v. Misercola, 21 NY3d 86, 90; Matter of Franklin v. Richey, 57 AD3d 663, 664). That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that “under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited” (Matter of Granger v. Misercola, 21 NY3d at 91). Here, there is a sound and substantial basis in the record for limiting the father’s contact with the children to mail correspondence (see Matter of Granger v. Misercola, 96 AD3d 1694, 1695, affd 21 NY3d 86). A preponderance of the evidence demonstrated that visitation would be harmful to the children’s welfare.DILLON, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Orlando Garcia, res, v. Polsky, Shouldice & Rosen, P.C., ap — (Index No. 502571/16)In an action to recover damages for legal malpractice and a violation of Judiciary Law §487, the defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated August 16, 2016. The order, insofar as appealed from, denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff commenced this action against the defendant Polsky, Shouldice & Rosen, P.C., a professional corporation practicing law in the State of New York (hereinafter the law firm), and the defendants Mark S. Polski, Donald T. Shouldice, and Adam L. Rosen, attorneys and partners in the law firm. The complaint alleged legal malpractice and a violation of Judiciary Law §487. Prior to answering, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In the order appealed from, the Supreme Court granted those branches of the defendants’ motion which were to dismiss the cause of action alleging legal malpractice insofar as asserted against Polski, Shouldice, and Rosen, and the cause of action alleging a violation of Judiciary Law §487 against all of the defendants. The court denied that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm, and amended the caption to list only the law firm as the defendant. The law firm appeals from so much of the order as denied that branch of the motion.“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v. Decolator, 121 AD3d 845, 847; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v. Martinez, 84 NY2d 83, 88).“On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v. Exxis, Inc., 138 AD3d 970, 971; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v. Martinez, 84 NY2d at 87-88). ”In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims” (Cron v. Hargro Fabrics, 91 NY2d 362, 366 [internal quotation marks omitted]; see Nilazra, Inc. v. Karakus, Inc., 136 AD3d 994, 995). ”Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852; see Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275).“Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19).“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). ”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, the law firm submitted documentary evidence in support of the motion establishing that its representation of the plaintiff was limited to his Workers’ Compensation claim. That submission did not utterly refute the plaintiff’s allegations, as augmented by his affidavit submitted in opposition to the motion, that the law firm gave him inaccurate legal advice. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.Moreover, the complaint, as augmented by the plaintiff’s affidavit, sufficiently pleaded a cause of action to recover damages for legal malpractice against the law firm. The evidentiary submissions did not show that the material facts claimed by the plaintiff to be facts were not facts at all and that no significant dispute exists regarding them. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Mastro, J.P.; Dillon, Cohen and Iannacci, JJ.PEOPLE, etc., res, v. James Ryan, ap — (Ind. No. 486/13)Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Philip M. Grella, J.), rendered March 9, 2016, convicting him of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, criminally negligent homicide, assault in the third degree, reckless driving, driving while intoxicated (two counts), reckless endangerment in the second degree, and leaving the scene of an incident without reporting, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the facts, by vacating the convictions of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, and criminally negligent homicide, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.The charges against the defendant arise from an incident that occurred in the pre-dawn hours of October 18, 2013. The trial evidence showed that the defendant was driving eastbound on the Long Island Expressway (hereinafter the expressway) in Nassau County, when his vehicle sideswiped another vehicle. Shortly thereafter, the defendant stopped short in front of another vehicle, or abruptly changed lanes and “cut off” that vehicle, resulting in a second collision. The defendant’s vehicle spun and came to rest in the high-occupancy vehicle (hereinafter HOV) lane of this four-lane stretch of the expressway, facing a barrier wall. The HOV lane was on the far left of the expressway, and the other three lanes of traffic were to the right of the HOV lane. Several other drivers stopped along the right shoulder of the expressway, and some of those individuals walked across the roadway to assist the defendant. One driver stopped his vehicle in the far-left lane of the expressway, roughly adjacent to the defendant’s vehicle, and that driver left his headlights on. Several minutes after the second collision, a police officer responded and parked his vehicle on the far-right side of the roadway, with the emergency lights activated.The responding police officer walked across the roadway and, while standing next to the defendant’s car, spoke to the defendant. At this point, according to trial witnesses, traffic was continuing to proceed slowly through the accident scene, using the center lane of the three regular lanes of traffic, which was the only open lane, and driving past or over some collision debris. A driver in a black sport-utility vehicle (hereinafter SUV) approached the scene.The trial evidence, including the evidence derived from a “black box” event recorder in the SUV, showed that the driver of the SUV approached the scene at 40 miles per hour, then slowed to only 37 miles per hour as he approached the defendant’s vehicle. The driver of the SUV testified that, as he neared this area, his attention was focused on the right side of the roadway, where there were several stopped vehicles and a police patrol vehicle with flashing lights. The SUV struck the defendant’s vehicle and then struck the police officer. The driver of the SUV testified that he did not brake until one second prior to the impact. The police officer died as a result of the accident. The trial evidence showed that the defendant was found to have a blood-alcohol content of 0.12 percent upon his arrival at a hospital approximately one hour after this incident.Upon a jury verdict, the defendant was convicted of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, criminally negligent homicide, assault in the third degree, reckless driving, driving while intoxicated (two counts), reckless endangerment in the second degree, and leaving the scene of an incident without reporting.In evaluating a challenge to a conviction based on the legal sufficiency of the trial evidence, a court must “determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v. Bleakley, 69 NY2d 490, 495; see People v. Contes, 60 NY2d 620, 621). The court, while viewing the evidence in the light most favorable to the People, must determine whether any rational trier of fact could have found that every element of the crime charged was established beyond a reasonable doubt (see People v. Lewis, 64 NY2d 1111, 1112; People v. Contes, 60 NY2d at 621).“To be held criminally responsible for a homicide, a defendant’s conduct must actually contribute to the victim’s death by ‘set[ting] in motion’ the events that result in the killing” (People v. DaCosta, 6 NY3d 181, 184, quoting People v. Matos, 83 NY2d 509, 511 [citation omitted]). ”Liability will attach even if the defendant’s conduct is not the sole cause of death if the actions were a ‘sufficiently direct cause of the ensuing death’” (People v. DaCosta, 6 NY3d at 184, quoting People v. Stewart, 40 NY2d 692, 697 [citation and internal quotation marks omitted]). More than an “‘obscure or merely probable connection’ between the [defendant's] conduct and result is required” (People v. DaCosta, 6 NY3d at 184, quoting People v. Stewart, 40 NY2d at 697 [internal quotation mark omitted]). Rather, “an act ‘qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen’” (People v. DaCosta, 6 NY3d at 184, quoting People v. Matos, 83 NY2d at 511; see Matter of Anthony M., 63 NY2d 270, 280; People v. Stewart, 40 NY2d at 697). The critical inquiry is whether the defendant’s conduct was an “actual contributory cause of [the] death, in the sense that [it] ‘forged a link in the chain of causes which actually brought about the death’” (Matter of Anthony M., 63 NY2d at 280, quoting People v. Stewart, 40 NY2d at 697). An intervening, independent act will not constitute a superseding cause that exonerates a defendant, unless “‘the death is solely attributable to the secondary agency, and not at all induced by the primary one’” (Matter of Anthony M., 63 NY2d at 280, quoting People v. Kane, 213 NY 360, 270; see People v. Bonilla, 95 AD2d 396, 410).At bar, the People adduced legally sufficient evidence that the defendant’s actions set in motion the events that led to the death of the police officer, and that the defendant’s conduct was a sufficiently direct cause of that result. It was reasonably foreseeable that the defendant’s conduct, including driving while intoxicated, causing the initial collision, failing to stop after the initial collision, and causing a second collision, would cause a dangerous condition on the roadway that would pose a danger to police or other first responders, particularly in the immediate aftermath of the incidents and prior to the securing of the accident scene (see People v. DaCosta, 6 NY3d at 186; People v. Uribe, 109 AD3d 844, 844; People v. Cipollina, 94 AD3d 1549, 1549; cf. People v. Ballenger, 106 AD3d 1375). The People adduced legally sufficient evidence of causation as to the counts of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, and criminally negligent homicide.In addition, the jury charge as to the principles of causation was proper, as it was based on the model charge contained in the Criminal Jury Instructions (see CJI2d[NY] Penal Law art. 125 – Causation; People v. Uribe, 109 AD3d at 844; see also People v. Prospect, 50 AD3d 1064, 1064; People v. Lubrano, 43 AD3d 829, 830; People v. Pedro, 36 AD3d 832, 833; People v. McDonald, 283 AD2d 592, 593). Contrary to the defendant’s contention, the Supreme Court did not err in curtailing cross-examination questions of the driver of the SUV regarding his alleged lengthy record of driving offenses, his alleged receipt of a grant of immunity, and the “offenses he could have been charged with” arising from this incident. While the SUV driver had a record of driving violations that went “back to the 1980s,” including seven accidents from 1989 to 2015, and an alleged 30 convictions of driving offenses such as speeding, failure to yield right of way, failure to obey traffic control devices, operating without insurance, and operating without a license, these issues were of minimal, if any, relevance to the issue of whether it was foreseeable to the defendant that a driver would approach this accident scene and collide with one of the stopped vehicles and/or a pedestrian, and had the potential to mislead or confuse the jury (see People v. Best, 152 AD3d 617; People v. Caballero, 137 AD3d 929, 930; People v. Legere, 81 AD3d 746, 750; People v. Gaviria, 67 AD3d 701; People v. Francisco, 44 AD3d 870).However, the jury verdict as to the manslaughter and homicide counts was against the weight of the evidence. 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 at 495). Here, the verdict as to the manslaughter and homicide counts was against the weight of the evidence, particularly in light of the evidence that the driver of the SUV that struck the police officer failed to pay attention to conditions on the roadway, including the presence of multiple stopped vehicles and debris on the road, and approached the accident scene at a speed in excess of the speed at which other vehicles were traveling (see People v. Romero, 7 NY3d 633; see also People v. Ballenger, 106 AD3d at 1378-1379). Unlike our dissenting colleague’s opinion, we find that the officer’s death was not “temporally proximate” to the defendant’s conduct. Indeed, the decision our colleague relies upon as instructive is illustrative of the lack of temporal proximity in this case. In People v. Uribe (109 AD3d 844), within seconds after an intoxicated and drugged defendant crashed his SUV into a tree, causing his vehicle to spin around and face oncoming traffic without its headlights on, an instantaneous chain reaction of collisions resulted in the death of a motorcyclist who was the operator of the third vehicle in the chain-reaction accident. Conversely, in the instant matter, a full seven to ten minutes passed between the time the defendant’s vehicle came to rest on the roadway and the time when the police officer was struck by the SUV. During this period of time, several other vehicles stopped in the area and illuminated the scene with their lights, debris was strewn across the roadway at or just west of the accident site, and traffic was building up as other drivers either stopped, exited the expressway, or cautiously negotiated the accident scene by traveling slowly through the center lane, which was the only lane open to traffic prior to the fatal collision. Unlike the situation in People v. Uribe, this was not one continuous chain-reaction accident that unfolded within a matter of seconds. Rather, a substantial amount of time passed between the accidents involving the defendant’s vehicle and the subsequent accident in which the officer was struck by the SUV.Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 NY2d 620), there was legally sufficient proof of causation as to the count of assault in the third degree (see People v. Coleman, 148 AD3d 717, 717; People v. Keegan, 133 AD3d 1313). The People also adduced legally sufficient proof of causation as to the counts of reckless endangerment in the second degree (see People v. Jakobson, 119 AD3d 815, 818; People v. Carrington, 30 AD3d 175; People v. Ingram, 234 AD2d 318), reckless driving (see People v. Earley, 121 AD3d 1192, 1193; People v. Goldblatt, 98 AD3d 817, 819; People v. Kohler, 85 AD3d 1203), and leaving the scene of an incident without reporting (see People v. Grasing, 152 AD3d 794, 794; People v. Kohler, 85 AD3d 1203). Moreover, the verdict was not against the weight of the evidence as to those counts (see People v. Romero, 7 NY3d 633).Contrary to the defendant’s contention, the sentences imposed with respect to the counts of assault in the third degree, reckless endangerment in the second degree, reckless driving, and leaving the scene of an incident without reporting, were not excessive (see People v. Suitte, 90 AD2d 80).In light of our determination, we need not reach the defendant’s remaining contentions.MASTRO, J.P., COHEN and IANNACCI, JJ., concur.DILLON, J., dissents, and votes to affirm the judgment, with the following memorandum:I respectfully dissent and vote to affirm the judgment in all respects.The issue that ultimately divides our panel is whether the convictions of manslaughter in the second degree, vehicular manslaughter in the second degree, aggravated criminally negligent homicide, and criminally negligent homicide should be vacated as against the weight of the evidence. The specific ground on which this divided opinion is based is whether the operation of a sports-utility vehicle (hereinafter SUV) by another driver broke the chain of causality between the defendant’s intoxicated driving on the one hand and a police officer’s death on the other.In order for the defendant to be held criminally liable for the officer’s death, the defendant must have engaged in conduct that “actually contribute[d]” to the police officer’s death (People v. DaCosta, 6 NY3d 181, 184) by setting into motion the events that resulted in the death (see People v. Matos, 83 NY2d 509, 511; People v. Ryan, 125 AD3d 695, 697). As noted by this Court in an earlier appeal associated with the grand jury evidence in this matter, the defendant’s actions need not be the sole cause of death and the defendant need not have committed the fatal act to be liable (see People v. Ryan, 125 AD3d at 697, citing People v. Matos, 83 NY2d at 511-512). The test is whether it may be reasonably foreseen that the defendant’s actions would result in the victim’s death, and if so, whether the defendant’s actions constitute a sufficiently direct cause of death as to warrant criminal liability (see People v DaCosta, 6 NY3d at 186; People v. Matos, 83 NY2d at 512; People v. Kibbe, 35 NY2d 407, 412; People v. Ryan, 125 AD3d at 697).In reviewing the weight of the evidence, the court must first determine whether, based upon all of the credible evidence presented at trial, a different finding would not have been unreasonable (see People v. Romero, 7 NY3d 633, 643). If so, the court must, in the second instance, weigh the relative probative force of the conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony, and if the trier of fact failed to give the evidence the weight it should be accorded, the court may set aside the verdict (see id. at 643; People v. Mateo, 2 NY3d 383, 415; CPL 470.15[5]). ”Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury” (People v. Bleakley, 69 NY2d 490, 495). ”Great deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (id. at 495).Here, in my view, the jury’s verdict on the manslaughter and homicide counts was not against the weight of the evidence. At approximately 4:30 a.m. on October 18, 2012, the defendant, while driving with a blood alcohol content exceeding the legal limit, caused two separate accidents with two separate vehicles in the same general vicinity of the Long Island Expressway (hereinafter the expressway), resulting in the defendant’s vehicle coming to a stop in the third-from-right travel lane. The defendant never attempted to position his vehicle off to the right, as did the drivers of the two vehicles involved in the other accidents with the defendant. The incident that resulted in the death of the police officer occurred at the precise location where the defendant’s vehicle stopped in the roadway, and within approximately seven to ten minutes of that stop. Therefore, the police officer’s death was geographically and temporally proximate to the defendant’s conduct leading to the defendant’s motor vehicle being stopped in the middle of the high-occupancy vehicle lane (see People v. Uribe, 109 AD3d 844).People v. Uribe (id.) is instructive, as it involved an intoxicated and drugged defendant who crashed his SUV into a tree, causing the SUV to spin around and face oncoming traffic with its headlights off. Seconds later a taxi cab struck the SUV, and a few seconds after that, a motorcycle struck the taxi cab, killing the motorcyclist. Although the defendant argued in Uribe that the taxi cab and motorcycle were unforeseeable superseding causes of the motorcyclist’s death, this Court affirmed the defendant’s conviction of vehicular manslaughter in the second degree, finding it was not against the weight of the evidence as to issues of foreseeability and causality. In contrast, People v. Ballenger (106 AD3d 1375), relied on by the defendant, is readily distinguishable and not controlling here. In Ballenger, the automobile accidents were too attenuated to support the defendant’s conviction of two counts of criminally negligent homicide. The defendant in Ballenger crashed his vehicle in a manner that obstructed the roadway and backed up traffic for a considerable distance. The deaths at the end of the accident chain occurred 30 minutes after the defendant’s accident, and half a mile from where the defendant had crashed his vehicle. Here, unlike in Ballenger, there was no attenuation as to location, and minimal attenuation as to time.The jury’s verdict is not against the weight of the evidence for an additional salient reason. A trial witness was in the immediate vicinity of the accident involving the defendant’s vehicle, the SUV, and the police officer. His testimony provided the greatest level of eyewitness detail about the mechanics of the police officer’s death. The witness described the SUV hitting the rear corner panel of the defendant’s vehicle, which “spun the [defendant's] car and kicked the officer up in the air.” According to the witness, the police officer “turned over his left shoulder and looked at me, and then got hit, and then he got flown up in the air and the [SUV], being higher, hit him up top on his hood.” No other witness provided a different description of how the police officer was struck at the scene. Thus, the police officer’s death involved contact with not one, but two vehicles—the defendant’s vehicle when it spun and hit the police officer, propelling him into the air, and the SUV that then struck the police officer with its hood. Clearly, the defendant’s motor vehicle was an integral instrumentality physically and directly involved in the police officer’s death. It was present at the time and place of the police officer’s death, because the defendant, while intoxicated, and in the pre-dawn darkness, engaged in conduct resulting in his motor vehicle being in a position of danger, in the middle of an expressway travel lane after two earlier accidents in the vicinity. The defendant’s vehicle, being a direct instrumentality in the events leading to the police officer’s death, brings the defendant within the chain of causality, and his conduct at the scene rendered it foreseeable that such results could arise (see People v. Uribe, 109 AD3d at 844).As in most every trial, there were conflicting inferences to be drawn from the evidence, including the inference accepted by the majority that the SUV was a sole superseding cause of the police officer’s death. However, the jury, which is afforded great deference for its opportunity to view witnesses, hear testimony, and observe the demeanor of witnesses, could logically and credibly have found on this record the requisite criminal negligence (see Penal Law §§125.10, 125.11), recklessness (see Penal Law 125.15[1], and intoxicated operation of a motor vehicle causing death (see Penal Law §125.12[1]), sufficiently proximate in time and place, to support the convictions rendered.In my further view, the remaining issues raised by the defendant on appeal are without merit. For these reasons, the judgment should be affirmed.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.Mary M. Lamberti, ap, v. Plaza Equities, LLC, et al., def, Greenpoint Funding, Inc. res — (Index No. 5244/13)Michael T. Lamberti, New York, NY, for appellant.Jaspan Schlesinger LLP, Garden City, NY (Scott B. Fisher and Antonia M. Donohue of counsel), for respondents.In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered May 1, 2015. The order granted that branch of the motion of the defendants Greenpoint Funding, Inc., and Greenpoint Mortgage Corp. which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them, and denied the plaintiff’s cross motion to consolidate her causes of action against those defendants with her counterclaims in a pending action to foreclose a mortgage.ORDERED that the order is affirmed, with costs.The background facts as to this action and a related mortgage foreclosure action are set forth in this Court’s decision and order on a companion appeal (see Lamberti v. Plaza Equities, LLC, __ AD3d __ [Appellate Division Docket No. 2015-06766; decided herewith]). The defendants Greenpoint Funding, Inc., and Greenpoint Mortgage Corp. (hereinafter together the Greenpoint defendants) moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them. In an order entered May 1, 2015, the Supreme Court, inter alia, granted that branch of the motion. The plaintiff appeals.The plaintiff’s contention that the Supreme Court erred in applying the doctrine of collateral estoppel is without merit (see id.).In light of our determination, we need not reach the Greenpoint defendants’ remaining contentions, which were raised as alternative grounds for affirmance (see GFRE, Inc. v. U.S. Bank, N.A., 130 AD3d 569).The plaintiff’s remaining contention is without merit.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.Stuart J. Mogul, etc., ap, v. Noreen Baptiste, res — (Index No. 15610/11)In an action to collect unpaid medical bills for services rendered to the defendant, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated November 5, 2015. The order denied, as premature, the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendant’s counterclaim alleging medical malpractice.ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendant’s counterclaim alleging medical malpractice is granted.The plaintiff, a podiatrist, commenced this action to collect unpaid medical bills for services rendered to the defendant, a former patient of the plaintiff. The defendant asserted in her answer that she owed the plaintiff $17,171.50, but set forth a counterclaim alleging medical malpractice and demanding damages exceeding the amount of damages sought by the plaintiff. Over the course of two years, despite repeated requests by the plaintiff and multiple court orders directing the disclosure of certain evidence, the defendant failed to provide pertinent discovery. Thereafter, the plaintiff moved for summary judgment on the issue of liability and dismissing the counterclaim. The defendant did not oppose the motion, and the Supreme Court denied the motion as premature. The plaintiff appeals.The Supreme Court should not have denied the plaintiff’s motion as premature. ”Any party may move for summary judgment in any action, after issue has been joined” (CPLR 3212[a]). A grant of summary judgment is not premature merely because discovery has not been completed (see Haidhaqi v. Metropolitan Transp. Auth., 153 AD3d 1328, 1329; HSBC Bank USA, N.A. v. Armijos, 151 AD3d 943, 944; Lamore v. Panapoulos, 121 AD3d 863, 864). In order for a motion for summary judgment to be denied as premature, the opposing party must “provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party” (Suero-Sosa v. Cardona, 112 AD3d 706, 708 [citations omitted]; see Vikram Constr., Inc. v. Everest Natl. Ins. Co., 139 AD3d 720, 721; 1375 Equities Corp. v. Buildgreen Solutions, LLC, 120 AD3d 783, 784). Here, since the defendant did not oppose the plaintiff’s motion for summary judgment, she failed to meet her burden of demonstrating that it should be denied as premature (see generally Haidhaqi v. Metropolitan Transp. Auth., 153 AD3d at 1329; HSBC Bank USA, N.A. v. Armijos, 151 AD3d at 944; Vikram Consts., Inc. v. Everest Natl. Ins. Co., 139 AD3d at 721; 1375 Equities Corp. v. Buildgreen Solutions, LLC, 120 AD3d at 784).Further, on the merits, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability and dismissing the defendant’s counterclaim. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, the defendant’s answer, in which she asserted that she owed the plaintiff the sum of $17,171.50 for unpaid medical bills (see Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 412; GMS Batching, Inc. v. TADCO Constr. Corp., 120 AD3d 549, 551; Zegarowicz v. Ripatti, 77 AD3d 650, 653). The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the counterclaim alleging medical malpractice. The plaintiff submitted an affirmation of an expert in podiatry and the defendant’s pertinent medical records, establishing, prima facie, that he did not depart from the applicable standard of care and, in any event, that the alleged departures were not a proximate cause of the alleged injuries (see Bowe v. Brooklyn United Methodist Church Home, 150 AD3d 1067, 1068; Leto v. Feld, 131 AD3d 590, 591; Whitnum v. Plastic & Reconstructive Surgery, P.C., 142 AD3d 495, 497; Matos v. Khan, 119 AD3d 909, 910). The defendant, having not responded to the motion, failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320).LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.Mary M. Lamberti, ap, v. Plaza Equities, LLC, et al., respondents def — (Index No. 5244/13)Michael T. Lamberti, New York, NY, for appellant.Lawrence and Walsh, P.C., Hempstead, NY (Eric P. Wainer of counsel), for respondents Plaza Equities, LLC, PE-NC, LLC, Petrina (Cherardi) Macaluso, and Scott Kiley, individually and as temporary administrator of the estate of John R. Kiley.Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY (Loretta M. Gastwirth and Thomas McGowan of counsel), for respondent Private Capital Group, LLC.In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered March 31, 2015. The order, insofar as appealed from, granted those branches of the separate motions of the defendant Private Capital Group, LLC, and the defendants Plaza Equities, LLC, and PE-NC, LLC, which were pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against each of them, and granted that branch of the separate motion of the defendants Petrina (Cherardi) Macaluso and Scott Kiley, individually and as temporary administrator of the estate of John R. Kiley, which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.In 1998, the plaintiff, Mary M. Lamberti, obtained a loan in the sum of $300,000 from Greenpoint Mortgage Corp. (hereinafter Greenpoint Mortgage), evidenced by a note and secured by a mortgage encumbering real property in Woodbury, New York. In 2004, an alleged default by Lamberti was settled by stipulation. However, in 2005, Greenpoint Mortgage commenced a mortgage foreclosure action alleging that Lamberti defaulted again. While the foreclosure action was pending, the note and mortgage were assigned several times, first to Copperfield Investments, LLC (hereinafter Copperfield), then to Private Capital Group, LLC (hereinafter Private Capital), subsequently to Plaza Equities, LLC (hereinafter Plaza Equities), and finally to PE-NC, LLC (hereinafter PE-NC).On an appeal in the foreclosure action, this Court affirmed an order dated October 13, 2010, which, inter alia, denied a motion by Lamberti to dismiss the complaint insofar as asserted against her for lack of standing and granted that branch of a motion by Plaza Equities which was to be added as a party plaintiff (see Greenpoint Mtge. Corp. v. Lamberti, 94 AD3d 815). On another appeal in the foreclosure action, this Court affirmed so much of an order entered March 12, 2012, as denied that branch of a motion by Lamberti which was for leave to renew a prior cross motion to dismiss the complaint (see Plaza Equities, LLC v. Lamberti, 118 AD3d 687). Following the assignment of the note and mortgage to PE-NC, PE-NC moved, inter alia, for summary judgment on the complaint insofar as asserted against Lamberti. In an order entered January 9, 2013, the Supreme Court, among other things, granted that branch of PE-NC’s motion which was for summary judgment, and this Court affirmed that determination (see Plaza Equities, LLC v. Lamberti, 118 AD3d 688).After PE-NC was awarded summary judgment in the foreclosure action, Lamberti commenced this action against PE-NC and the prior corporate assignees of the note and mortgage, as well as certain individuals associated with them, alleging in the amended complaint, inter alia, that the assignments of the note and mortgage were fraudulent. In December 2014, Private Capital, which was not a party to the prior foreclosure action, moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it based upon collateral estoppel. Plaza Equities and PE-NC separately moved, among other things, to dismiss the amended complaint insofar as asserted against them on the same ground. Petrina (Cherardi) Macaluso and Scott Kiley, individually and as temporary administrator of the estate of John R. Kiley (hereinafter together the Kiley defendants), moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them for failure to state a cause of action and failure to plead fraud with particularity. In an order entered March 31, 2015, the Supreme Court, inter alia, granted the defendants’ motions. Lamberti appeals.The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue that was raised in a prior action and decided against that party or those in privity (see Ryan v. New York Tel. Co., 62 NY2d 494, 500; SSJ Dev. of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 AD3d 674, 676). The issue must have been material in the first action and essential to the decision entered therein (see Ryan v. New York Tel. Co., 62 NY2d at 500). Collateral estoppel applies “if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349). The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action (see id. at 349).The original mortagee, Greenpoint Mortgage, assigned the note and mortgage to Copperfield, which assigned the note and mortgage to Private Capital, which assigned the note and mortgage to Plaza Equities, which assigned the note and mortgage to PE-NC. In connection with the prior motions and prior appeals in the mortgage foreclosure action, although Lamberti argued that the assignments were invalid and fraudulent, PE-NC was awarded summary judgment on the complaint insofar as asserted against her. Thus, Private Capital was entitled to dismissal based on collateral estoppel (see SSJ Dev. of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 AD3d at 676; Suffern Realty Assoc. Corp. v. Garewal, 41 AD3d 581). Similarly, Lamberti’s causes of action against Plaza Equities and PE-NC are barred by collateral estoppel (see Breslin Realty Dev. Corp. v. Shaw, 72 AD3d 258). However, Private Equities’ request in its brief for the imposition of sanctions against Lamberti for pursuing a frivolous appeal is denied (see Greystone Staffing, Inc. v. Niemeyer, 106 AD3d 953).We agree with the Supreme Court that the Kiley defendants were entitled to dismissal of the amended complaint insofar as asserted against them pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The allegations of fraud against the Kiley defendants were not pleaded with particularity (see CPLR 3016[b]). With respect to the allegations of negligent misrepresentation, the elements of a cause of action sounding in negligent mispresentation are (1) a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information (see Simmons v. Allstate Indem. Co., 112 AD3d 611). Lamberti failed to allege facts supporting a special relationship with the Kiley defendants, and she also failed to allege any incorrect information imparted to her by the Kiley defendants on which she relied. Nor did the amended complaint state a cause of action against the Kiley defendants sounding in violation of General Business Law §349, which protects consumers from unlawful deceptive business practices. An essential element of a cause of action pursuant to General Business Law §349 is that the challenged conduct was consumer-oriented (see JP Morgan Chase Bank, N.A. v. Hall, 122 AD3d 576), which was not alleged.Lamberti’s remaining contentions are without merit.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.Mary M. Lamberti, ap, v. Plaza Equities, LLC, et al., def, Lawrence A. Cline, res — (Index No. 5244/13)Michael T. Lamberti, New York, NY, for appellant.Greenberg Freeman LLP, New York, NY (Sanford H. Greenberg of counsel), for respondent.In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered November 17, 2015. The order granted the motion of the defendant Lawrence A. Cline for leave to amend his answer and for summary judgment dismissing the amended complaint insofar as asserted against him.ORDERED that the order is affirmed, with costs.The background facts as to this action and a related mortgage foreclosure action are set forth in this Court’s decision and order on a companion appeal (see Lamberti v. Plaza Equities, LLC, __ AD3d __ [Appellate Division Docket No. 2015-06766; decided herewith]). In an order entered November 17, 2015, the Supreme Court granted the motion of the defendant Lawrence A. Cline for leave to amend his answer and for summary judgment dismissing the amended complaint insofar as asserted against him. The plaintiff appeals.Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of Cline’s motion which was for leave to amend his answer to assert the affirmative defense of collateral estoppel, predicated on determinations made in the mortgage foreclosure action commenced against the plaintiff. The proposed amendment to assert the collateral estoppel defense did not result in prejudice or surprise to the plaintiff and was not palpably insufficient or patently devoid of merit (see Cappezzano Constr. Corp. v. Weinberger, 150 AD3d 811; Coleman v. Worster, 140 AD3d 1002).Furthermore, we agree with the Supreme Court that Cline was entitled to summary judgment dismissing the amended complaint insofar as asserted against him based on the doctrine of collateral estoppel. Cline demonstrated, prima facie, that the issues raised by the plaintiff in this action were decided against her in the prior mortgage foreclosure action and that the plaintiff had a full and fair opportunity to litigate those issues in that action. In opposition, the plaintiff failed to raise a triable issue of fact (see Hanspal v. Washington Mut. Bank, 153 AD3d 1329).The parties’ remaining contentions need not be reached in light of our determination.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.Mary M. Lamberti, ap, v. Plaza Equities, LLC, def, Peter Kamran, res — (Index No. 5244/13)Michael T. Lamberti, New York, NY, for appellant.Lester & Associates, P.C., Garden City, NY (Robert A. Drummond of counsel), for respondent.In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an amended order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered June 10, 2016. The amended order granted the motion of the defendant Peter Kamran for leave to amend his answer and for summary judgment dismissing the amended complaint insofar as asserted against him.ORDERED that the amended order is affirmed, with costs.The background facts as to this action and a related mortgage foreclosure action are set forth in this Court’s decision and order on a companion appeal (see Lamberti v. Plaza Equities, LLC, __ AD3d __ [Appellate Division Docket No. 2015-06766; decided herewith]). In an amended order entered June 10, 2016, the Supreme Court granted the motion of the defendant Peter Kamran for leave to amend his answer and for summary judgment dismissing the amended complaint insofar as asserted against him. The plaintiff appeals.Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of Kamran’s motion which was for leave to amend his answer to assert the affirmative defense of collateral estoppel (see Lamberti v. Plaza Equities, LLC, __ AD3d __ [Appellate Division Docket No. 2016-00257; decided herewith]).We agree with the Supreme Court that Kamran was entitled to summary judgment dismissing the amended complaint insofar as asserted against him based on the doctrine of collateral estoppel (see id.).In light of our determination, we need not reach the plaintiff’s remaining contention.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Rivera, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.MATTER of Mitchell Worsoff, ap, v. Maya Worsoff, res — (Docket Nos. V-1950-17, V-1951-17, V-1952-17, V-1953-17, V-1950-17/17A, V-1951-17/17A, V-1952-17/17A, V-1953-17/17A)In related proceedings pursuant to Domestic Relations Law §§77-d and 77-e, the father appeals from an order of the Family Court, Nassau County (Merik R. Aaron, J.), dated May 2, 2017. The order denied the father’s petitions for registration and enforcement, respectively, of an order of the Superior Court of California, County of Los Angeles, dated October 2, 2014, which, inter alia, awarded custody of the parties’ minor children to him.ORDERED that the order is affirmed, without costs or disbursements.The parties previously were married and have four minor children who are the subject of these proceedings. The parties were living in California in 2013 when they separated. Following their separation, in an order filed May 10, 2013, the Superior Court of California, County of Los Angeles, awarded custody of the children to the mother, with specified visitation to the father. While divorce proceedings were ongoing, on October 25, 2013, the mother moved to Israel with the children. On December 17, 2013, the father filed a claim with an Israeli court for the return of the children. An agreement was reached that the mother would return to the United States with the children upon conditions set by the Israeli court. Those conditions, set forth in a judgment dated March 6, 2014, required the father to deposit a certain sum of money to a representative of the mother in order to ensure financial support of the children and the mother pending resolution of the California divorce proceedings. The father did not comply with those conditions, and the mother and the children remained in Israel.In an order dated October 2, 2014, the California court awarded custody of the children to the father with no visitation to the mother until further order of the court (hereinafter the California custody order). The mother and the children remained in Israel. Shortly after the California custody order was issued, the father again filed a claim in the Israeli court, seeking to have the children returned to the United States. His claim was rejected in an order dated November 20, 2014, on the ground that the issue previously had been resolved by that court, and the father’s failure to comply with the conditions previously established by that court did not warrant reconsideration of the issue. The mother and the children remained in Israel.In 2016, the mother sought an order of custody in an Israeli family court. The father’s attorney confirmed receipt of notice of the mother’s application for custody, but the father did not appear to oppose the application. In an order dated February 25, 2016, the Petach Tikva Family Court awarded the mother custody of the subject children (hereinafter the Israeli custody order).In or about April 2016, the mother and the children moved to New York. The mother filed an application for the registration of the Israeli custody order in the Family Court, Nassau County, pursuant to Domestic Relations Law §77-d. Notice of the application was mailed by the Clerk of the Court to the father on November 22, 2016. The father did not contest the validity of the Israeli custody order. The Clerk of the Family Court of Nassau County certified registration of the Israeli custody order on February 2, 2017.In petitions dated February 21, 2017, the father, now living in Canada, sought to register and enforce, respectively, the California custody order in the Family Court, Nassau County, pursuant to Domestic Relations Law §§77-d and 77-e. The mother contested the validity of the California custody order pursuant to Domestic Relations Law §77-d(4). In an on-the-record determination, the Family Court found that the Israeli custody order, which it previously had registered, modified the California custody order and, therefore, the father’s petitions should be denied. In an order dated May 2, 2017, the Family Court denied the father’s petitions. The father appeals.Domestic Relations Law §77-d provides for the registering, and contesting, of an out-of-state custody decree. Upon receipt of the child custody determination to be registered, the New York court is obligated to serve notice upon the affected persons and provide them with an opportunity to contest the registration (see Domestic Relations Law §77-d[2][b]). The statute provides that “[a] person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice” (Domestic Relations Law §77-d[4]). At the hearing, the court “shall confirm the registered order” unless the person contesting registration establishes that (a) the issuing court did not have jurisdiction, (b) the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so, or (c) the person contesting registration was entitled to, but did not receive, notice in the underlying proceedings before the court that issued the order for which registration is sought (Domestic Relations Law §77-d[4]). If no timely contest is made, “the registration is confirmed as a matter of law” (Domestic Relations Law §77-d[5]). ”Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” (Domestic Relations Law §77-d[6]).Here, the father contends that the Family Court erred in concluding that the February 25, 2016, Israeli custody order modified the October 2, 2014, California custody order without first conducting a hearing on the issue of whether the Israeli court had jurisdiction to do so. However, the father, who does not dispute that he was given the requisite notice of the mother’s application to register the Israeli custody order, did not contest registration of that order. Had he done so, the issue of the Israeli court’s jurisdiction to issue an order of custody could have been raised (see Domestic Relations Law §77-d[4][a]). Confirmation of the registered Israeli custody order “precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” (Domestic Relations Law §77-d[6]), including the Israeli court’s authority to render a custody determination. Accordingly, the Family Court properly concluded that the mother established that the California custody order had been modified by the Israeli custody order (see Domestic Relations Law §77-d[4][b]) and, therefore, properly denied the father’s petitions (cf. Matter of Evanitsky v. Evans, 81 AD3d 1086, 1087).RIVERA, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.Melville Luckie, ap, v. Northern Adult Day Health Care Center, res — (Index No. 668/13)Noah A. Kinigstein, New York, NY, for appellant.Peckar & Abramson, P.C., New York, NY (Joseph Vento of counsel), for respondent.In an action, inter alia, to recover damages for employment discrimination, the plaintiff appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated July 5, 2016. The order granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint.ORDERED that the order is affirmed, with costs.In May 2011, the plaintiff filed an administrative complaint against his employer, Northern Adult Day Health Care Center (hereinafter Northern), with the New York State Division of Human Rights (hereinafter the Division), inter alia, charging it with unlawful discriminatory practices relating to his employment on the basis of race, color, and national origin, in violation of the New York State Human Rights Law. On October 19, 2011, following an investigation, the Division determined that there was no probable cause to believe that Northern engaged in the unlawful discriminatory practice alleged in the administrative complaint. In February 2012, the plaintiff commenced a proceeding pursuant to CPLR article 78 to review the Division’s determination. In a judgment dated June 7, 2012, the Supreme Court, New York County, denied the petition and dismissed the proceeding.In January 2013, the plaintiff commenced this action in the Supreme Court, Kings County, against Northern, alleging discrimination and retaliation in violation of the New York City Human Rights Law (hereinafter NYCHRL). Thereafter, Northern moved pursuant to CPLR 3211(a) to dismiss the complaint based, inter alia, on the election of remedies doctrine. In the order appealed from, the Supreme Court granted the aforementioned branch of Northern’s motion. The plaintiff appeals.“Pursuant to the election of remedies doctrine, the filing of a complaint with [the Division] precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts” (Vetro v. Hampton Bays Union Free Sch. Dist., 148 AD3d 963, 964; see Executive Law §297[9]; Rodriguez v. Dickard Widder Indus., 150 AD3d 1169, 1170-1171). The election of remedies doctrine does not implicate the subject matter jurisdiction of the court, but rather deprives a plaintiff of a cause of action (see Rodriguez v. Dickard Widder Indus., 150 AD3d at 1171). Here, the plaintiff’s causes of action are based on the same allegedly discriminatory conduct asserted in the proceedings before the Division. Therefore, the plaintiff is barred from asserting those claims under the NYCHRL in this action (see id.; Vetro v. Hampton Bays Union Free Sch. Dist., 148 AD3d at 964; Benjamin v. New York City Dept. of Health, 57 AD3d 403, 404; Bhagalia v. State of New York, 228 AD2d 882, 883; Craig-Oriol v. Mount Sinai Hosp., 201 AD2d 449, 450; Spoon v. American Agriculturalist, 103 AD2d 929, 930; Ulysse v. FreshDirect, LLC, 2015 WL 5692938, *4, 2015 US Dist LEXIS 130112, *6 [ED NY, No. 14 CV 3556 (PKC)]).The plaintiff’s remaining contention is without merit.Accordingly, the Supreme Court properly granted that branch of Northern’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.Nylah Hollingsworth, etc., appellant-res, v. Mercy Medical Center, res-res — (Index No. 2481/12)In an action to recover damages for medical malpractice, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered April 16, 2015. The order, insofar as appealed from, granted that branch of the defendant’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages as excessive to the extent of directing a new trial on the issue of damages unless the plaintiff stipulated to a reduction of the damages awards. The order, insofar as cross-appealed from, denied that branch of the defendant’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as matter of law or, in the alterative, to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.ORDERED that the order is affirmed, without costs or disbursements.On February 23, 2009, the plaintiff was born prematurely at 27 weeks of gestation at the defendant hospital. On March 9, 2009, while still in the care of the defendant, the plaintiff was diagnosed with necrotizing enterocolitis (hereinafter NEC), an acute infection of the intestine sometimes seen in premature infants. She was transferred to another hospital on March 14, 2009, and ultimately underwent surgery on May 5, 2009, for resection of portions of her intestine. The plaintiff has since been diagnosed with short bowel syndrome secondary to NEC, which, it is anticipated, will cause her to suffer certain intestinal problems for life.The plaintiff commenced this medical malpractice action alleging that the defendant negligently caused NEC by feeding her increased calories and concentrated breast milk, and that the defendant was negligent in failing to order a surgical consultation upon diagnosing her with NEC and failing to timely transfer her to another hospital capable of surgically treating her. After a trial, the jury found that the defendant did not depart from acceptable medical practice in its feeding of the plaintiff, but that it did depart from such practice by failing to obtain a surgical consultation upon diagnosing her with NEC and failing to timely transfer her to another hospital. The jury also found that these departures were substantial factors in causing injury to the plaintiff. The jury awarded the plaintiff the sum of $1,000,000 for past pain and suffering, and the sum of $4,000,000 for future pain and suffering.The defendant moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as matter of law or, in the alternative, to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial. In the alternative, the defendant moved pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages as excessive and for a new trial on that issue unless the plaintiff stipulated to a reduction of the damages awards. In the order appealed from, the Supreme Court denied that branch of the motion which was to set aside the verdict on the issue of liability, but granted that branch of the motion which was to set aside the verdict on the issue of damages to the extent of directing a new trial on damages unless the plaintiff stipulated to a reduction of the damages awards for past pain and suffering to $75,000 and for future pain and suffering to $500,000. The plaintiff appeals, and the defendant cross-appeals.A motion to set aside a jury verdict and for judgment as a matter of law will be granted only if there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion reached on the basis of the evidence presented at trial (see Killon v. Parrotta, 28 NY3d 101, 108; Campbell v. City of Elmira, 84 NY2d 505, 509-510; Cohen v. Hallmark Cards, 45 NY2d 493, 499). In a medical malpractice action, the plaintiff must show that the defendant deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury (see Mazella v. Beals, 27 NY3d 694, 705; James v. Wormuth, 21 NY3d 540, 545). Here, the jury rationally could have concluded that the defendant was negligent in failing to order a surgical consultation when it diagnosed the plaintiff with NEC and in failing to timely transfer her to a hospital capable of treating her surgically, and that these departures were a proximate cause of the plaintiff’s injuries.A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Killon v. Parrotta, 28 NY3d at 107-108; Lolik v. Big v. Supermarkets, 86 NY2d 744, 746). Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert (see Russo v. Levat, 143 AD3d 966, 968; Hatzis v. Buchbinder, 112 AD3d 890, 891; Ferreira v. Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588). The jury’s verdict in favor of the plaintiff on the issue of liability in this case was supported by a fair interpretation of the evidence.However, we agree with the Supreme Court’s conclusion that the jury verdict indicates that the jury found that the defendant did not cause the plaintiff’s NEC inasmuch as it determined that the defendant was not negligent in its feeding of the plaintiff. Upon rejecting this claim, the jury found only that the defendant was responsible for the delay in obtaining a surgical consult and transferring the plaintiff to another hospital. The plaintiff’s expert testified that this delay allowed the plaintiff’s NEC to become more severe and complex, and resulted in the loss of more bowel. Under these circumstances, we agree with the court that the damages awarded were excessive to the extent indicated, as they deviate materially from what would be reasonable compensation (see CPLR 5501[c]; LaTorre v. Knorr, 35 AD3d 671; Roseingrave v. Massapequa Gen. Hosp., 298 AD2d 377, 380; DeRosa v. Kaali, 240 AD2d 534, 535).MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Last Train Stop, Inc., etc., pet, v. New York State Liquor Authority, res — (Index No. 30623/16)Christopher R. Riano, Albany, NY (Mark D. Frering of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated November 9, 2015, as adopted the recommendation of an administrative law judge dated July 13, 2015, made after a hearing, sustaining two charges that the petitioner violated Alcoholic Beverage Control Law §118(3) and rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q), and imposing a civil penalty.ADJUDGED that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits, with costs.Contrary to the petitioner’s contention, neither the Alcoholic Beverage Control Law §118(3) nor rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q) require the New York State Liquor Authority (hereinafter the Liquor Authority) to prove that the petitioner knowingly suffered or permitted the disorderly conduct that led to the charges. The petitioner incorrectly relies upon the 1992 Court of Appeals decision in Matter of Beer Garden v. New York State Liq. Auth. (79 NY2d 266). In that case, the Court of Appeals held that, because the statutory authority for a charge under the Rules of the State Liquor Authority (9 NYCRR) §53.1(q) was based upon Alcoholic Beverage Control Law §106(6), which includes the “suffer or permit” requirement, the Liquor Authority would have to prove that the petitioner knowingly permitted the misconduct. In direct response to the Beer Garden holding, the Legislature added Alcoholic Beverage Control Law §118(3) to the statute in 1996. That section now provides as follows: “As used in this section, the term for cause shall also include the existence of a sustained and continuing pattern of noise, disturbance, misconduct, or disorder on or about the licensed premises, related to the operation of the premises or the conduct of its patrons, which adversely affects the health, welfare or safety of the inhabitants of the area in which such licensed premises are located.” The stated purpose of the amendment was to provide statutory authority to sanction licensees for violations of rule 36.1(q) without a finding that they knowingly suffered or permitted misconduct (see 1996 McKinney’s Session Law News of NY, ch 536; Sponsor’s Mem in Support, Bill Jacket, L 1996, ch 536 at 8-9; Matter of MJS Sports Bar & Grill, Inc. v. New York State Liq. Auth., 129 AD3d 1368). Here, it is undisputed that the petitioner was not charged with knowingly suffering and permitting the alleged misconduct on or about its premises.The petitioner’s contention that the determination was not supported by substantial evidence also is without merit. ”‘Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence’” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 AD3d 648, 651, quoting Matter of Albany Manor, Inc. v. New York State Liq. Auth., 44 AD3d 759, 759). The Court of Appeals defined substantial evidence as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180). ”More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” (id. at 180-181). ”‘The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable’” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 AD3d at 652, quoting Matter of Ridge Rd. Fire Dist. v. Schiano, 16 NY3d 494, 499 [internal quotation marks and citations omitted]). Moreover, a decision by an administrative hearing officer to credit the testimony of a particular witness is entitled to great weight because he or she had the opportunity to observe the demeanor of the witness (see Matter of Alegre Deli v. New York State Liq. Auth., 298 AD2d 581, 582).Here, the administrative law judge relied on 10 undisputed incidents involving disturbances, misconduct, and disorder, which caused the petitioner’s establishment to become a focal point of police attention. These incidents constituted substantial evidence of a sustained and continuing pattern of disturbance, misconduct, or disorder supporting the charges pursuant to Alcoholic Beverage Control Law §118(3) and rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q) (see Matter of Willis v. New York State Liq. Auth., 118 AD3d 1013; Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth. 103 AD3d 648).Contrary to the petitioner’s contention, Alcoholic Beverage Control Law §118(3) and rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q) are not unconstitutionally vague (see Matter of Kaur v. New York State Urban Dev. Corp., 15 NY3d 235; Goldberg v. Corcoran, 153 AD2d 113).CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.MATTER of Last Train Stop, Inc., etc., pet, v. New York State Liquor Authority, res — (Index No. 33720/16)Christopher R. Riano, Albany, NY (Mark D. Frering of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated May 23, 2016, as adopted the recommendation of an administrative law judge dated March 17, 2016, made after a hearing, sustaining two charges that the petitioner had violated Alcoholic Beverage Control Law §118(3) and rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q), and imposing a civil penalty.ADJUDGED that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits, with costs.For the reasons stated in the companion appeal (see Matter of Last Train Stop, Inc. v. New York State Liquor Authority, __ AD3d __ [Appellate Division Docket No. 2016-07241; decided herewith]), the petitioner’s contentions in this proceeding are without merit. Accordingly, the New York State Liquor Authority properly adopted the recommendation of an administrative law judge dated March 17, 2016, made after a hearing, sustaining two charges that the petitioner violated Alcoholic Beverage Control Law §118(3) and rule 36.1(q) of the Rules of the State Liquor Authority (9 NYCRR) §53.1(q), and imposing a civil penalty.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Maltese, JJ.Michael Isichenko, ap, v. Tanya Isichenko, res — (Index No. 2104/11)David I. Bliven, White Plains, NY, for appellant.McCarthy Fingar, LLP, White Plains, NY (Kathleen Donelli and Kristen Pennessi of counsel), for respondent.In a matrimonial action, the plaintiff appeals from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated December 2, 2015. The order denied, without a hearing, the plaintiff’s motion for a downward modification of his spousal maintenance and child support obligations, and granted the defendant’s cross motion for an award of costs in the form of attorney’s fees in the sum of $15,000.ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff’s motion which was for a downward modification of his spousal maintenance obligation, and (2) by deleting the provision thereof granting the defendant’s cross motion, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.The parties were divorced by a judgment dated July 8, 2011, which set forth, inter alia, the plaintiff’s obligations with respect to spousal maintenance, and child support for the parties’ son. In 2015, the plaintiff moved for a downward modification of those obligations. The plaintiff alleged, inter alia, that a change of circumstances had occurred warranting modification; specifically, a loss of employment which significantly reduced his annual income, a substantial increase in the defendant’s income and net asset value, and the fact that the child no longer resided with the defendant for the majority of the year due to his matriculation at a university. The Supreme Court declined to grant an evidentiary hearing and denied the motion, finding, inter alia, that the plaintiff’s alleged income reduction did not constitute a change of circumstances sufficient to warrant a downward modification of his maintenance or child support obligation, and that a change in the defendant’s income could not be a basis for a reduction of those obligations. The court also granted the defendant’s cross motion for an award of costs in the form of attorney’s fees on the ground that the plaintiff’s motion lacked a basis in law or fact. The plaintiff appeals.The Supreme Court should not have denied, without a hearing, that branch of the plaintiff’s motion which was for a downward modification of his spousal maintenance obligation. The plaintiff demonstrated, prima facie, that his gross annual income has been substantially reduced from the $750,000 in income that was imputed to him for the purpose of the spousal maintenance award in the parties’ divorce judgment. Moreover, the plaintiff’s statements that he was only able to obtain employment at a salary that is significantly lower than the salary he was earning shortly before the parties’ divorce were supported by the sworn submissions of job recruiters, colleagues, and a vocational expert. This evidence established a genuine issue of fact as to whether the reduction in his income was based on a decline in his opportunities for employment, thereby presenting a substantial change in circumstances meriting a downward modification of his maintenance payments (see Domestic Relations Law §236[B][4][a]; 22 NYCRR 202.16 [g]; Matter of Getty v. Getty, 83 AD3d at 835; David v. David, 54 AD3d 714; Stedfelt v. Stedfelt, 258 AD2d 642, 642-643; see also Matter of Belmonte v. Dreher, 77 AD3d 937). Accordingly, we remit the matter to the Supreme Court, Westchester County, for an evidentiary hearing on this issue.On the other hand, we agree with the Supreme Court’s determination denying, without a hearing, that branch of the plaintiff’s motion which was for a downward modification of his child support obligation, as it was based on his unsubstantiated allegations that there was a substantial enough change of circumstances to justify such a modification (see Domestic Relations Law §236[B][9][b][2][i]; Matter of Lindsay v. Lindsay-Lewis, 156 AD3d 642). The plaintiff did not demonstrate, prima facie, that his gross annual income has been substantially reduced from the $350,000 in annual income that was imputed to him for the purpose of the child support award in the parties’ divorce judgment (see Matter of Fein v. Gilchrist, 23 AD3d 558, 559).In light of our determination, the Supreme Court’s granting of the defendant’s cross motion for an award of costs against the plaintiff in the form of attorney’s fees was improper, since the plaintiff’s motion was not so lacking in merit as to justify such an award (see 22 NYCRR 130-1.1[c]; Matter of Katz v. Shomron, 71 AD3d 770; see also Matter of Nenninger v. Kelly, 140 AD3d 964, 965).MASTRO, J.P., LEVENTHAL, SGROI and MALTESE, JJ., concur.By Scheinkman, P.J.; Roman, Sgroi and Maltese, JJ.MATTER of Robert v. Sofia, ap, v. Kellie M. Hendry, res — (Docket Nos. V-26369-10, V-26370-10)In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Mildred T. Negron, J.), dated August 19, 2016. The order, insofar as appealed from, after a hearing, and upon a decision of the same court dated August 18, 2016, denied the father overnight physical access with the subject children.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The father petitioned for custody of the parties’ two children. After a hearing, the Family Court, inter alia, awarded the father daytime physical access on alternating weekends. The father appeals from so much of the order as denied him overnight physical access.In reviewing the Family Court’s determination herein, we accord considerable deference to the court’s assessment of the parties, because the assessment rests on that court’s superior position to evaluate the witnesses’ demeanor and credibility (see Matter of Wright v. Stewart, 131 AD3d 1256; Matter of Santano v. Cezair, 106 AD3d 1097). In determining physical access rights, the most important factor to be considered is the best interests of the children (see Eschbach v. Eschbach, 56 NY2d 167, 174; Matter of Nicholas v. Nicholas, 107 AD3d 899). The determination of physical access issues is entrusted to the sound discretion of the Family Court, and its determination will not be disturbed on appeal unless it lacks a sound and substantial basis in the record (see Matter of Rodriguez v. Liegey, 132 AD3d 880; Matter of Kavanagh v. Kavanagh, 132 AD3d 674; Matter of Thompson v. Yu—Thompson, 41 AD3d 487, 488).Here, the Family Court’s determination that it was not in the children’s best interests for the father to have overnight physical access was supported by a sound and substantial basis in the record and, thus, will not be disturbed.SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Evelyn Mulholland res, v. Ramon Rivera Moret ap — (Index No. 503882/14)In an action, inter alia, for a judgment declaring the rights of the parties under a residential lease and for reformation of the lease, the defendants appeal from so much of an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), entered October 28, 2015, as denied that branch of their motion which was for an award of attorney’s fees and costs.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the branch of the defendants’ motion which was for an award of attorney’s fees and costs is granted, and the matter is remitted to the Supreme Court, Kings County, for a hearing, to be held forthwith, to determine the amount of the attorney’s fees and costs to be awarded to the defendants.The plaintiffs, owners of a residential building located in Brooklyn, commenced this action against the defendants, residents of Apartment 1L in the building, for, inter alia, a judgment declaring the parties’ rights with respect to use of the backyard, reformation of the lease which provided for exclusive use of the backyard by the defendants, and injunctive relief preventing the defendants from interfering with the plaintiffs’ use of the backyard. In the complaint, the plaintiffs alleged that the defendants were in possession of the backyard and had interfered with the plaintiffs’ use of it. Following motions by the defendants, the Supreme Court dismissed each of the causes of action asserted by the plaintiffs, declared that the defendants had exclusive use of the backyard pursuant to the lease, and enjoined the plaintiffs from interfering with the defendants’ use and enjoyment of the backyard. The defendants, inter alia, moved for an award of attorney’s fees and costs pursuant to the lease and/or Real Property Law §234. The court denied that branch of the defendants’ motion, and the defendants appeal.Under the circumstances of this case, Real Property Law §234 does not provide a means for the defendants to recover reasonable attorney’s fees and costs. That statute provides that a tenant may be eligible to recover attorney’s fees from a landlord in connection with actions or proceedings wherein a breach of the lease is alleged when the governing lease between them requires the tenant to pay the landlord’s attorney’s fees in such actions or proceedings. In this case, no breach of the lease was alleged. Rather, the plaintiffs sought to reform the lease so as to remove the provision granting the defendants exclusive use of the backyard, and sought prospective declaratory and injunctive relief in that regard. Real Property Law §234 was, therefore, not applicable (see 191 Chrystie LLC v. Ledoux, 82 AD3d 681, 682; Jerulee Co. v. Sanchez, 43 AD3d 328, 329; Salvato v. St. David’s School, 307 AD2d 812, 812-813; see generally Graham Ct. Owners Corp. v. Taylor, 24 NY3d 742, 749).The defendants were, however, entitled to an award of attorney’s fees and costs based upon Paragraph 27 of the lease, which provides, “[t]he successful party in a legal action or proceeding between Landlord and Tenant for non-payment of rent or recovery of possession of the Apartment may recover reasonable legal fees and costs from the other party.” The lease granted exclusive use of the backyard to the defendants, making it a part of the leased premises, referred to in the lease as the “Apartment” (see Rose v. 115 Tenants Corp., 150 AD3d 472; Goldhirsch v. St. George Tower & Grill Owners Corp., 142 AD3d 1044, 1046). The plaintiffs, in seeking to reform the lease so as to remove that provision and in seeking declaratory and injunctive relief to permit them to use a portion of the backyard, sought to recover possession of a portion of the leased premises. The defendants became “the successful party” by obtaining dismissal of all causes of action asserted by the plaintiffs against them. The defendants were, therefore, entitled to recover reasonable attorney’s fees and costs from the plaintiffs pursuant to Paragraph 27 of the lease (see Vanchiro v. Powells Cove Owners Corp., 135 AD3d 851, 853; Allerand, LLC v. 233 E. 18th St. Co., L.L.C., 19 AD3d 275, 276; Board of Mgrs. v. Lamontanero, 206 AD2d 340, 341).Although the defendants submitted sufficient evidence of the reasonable value of the legal services rendered and the plaintiffs did not dispute the reasonableness of the requested fees (see Matter of Claydon, 103 AD3d 1051, 1054; Kuttas v. Condon, 290 AD2d 492, 493-494), a hearing is necessary to determine the amount of the attorney’s fees to be awarded to the defendants since the billing records submitted by the defendants include fees for services performed to recover the fee award, or “fees on fees,” recovery of which is not permitted by the lease (see IG Second Generation Partners, L.P. v. Kaygreen Realty Co., 114 AD3d 641, 643-644). Accordingly, we remit the matter to the Supreme Court, Kings County for a hearing and determination on the amount of reasonable attorney’s fees without the inclusion of legal fees incurred in prosecuting the defendants’ motion for an award of attorney’s fees and costs.The plaintiffs’ remaining contention is without merit.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Percy W. Scott, ap — (Ind. No. 15-00348)Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered February 25, 2016, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant validly waived his right to appeal (see People v. Sanders, 25 NY3d 337, 340-342; People v. Ramos, 7 NY3d 737, 738), and the valid waiver of his right to appeal forecloses appellate review of the denial of that branch of his omnibus motion which was to controvert a search warrant and suppress the evidence recovered thereunder (see People v. Brathwaite, 263 AD2d 89, 91). The defendant’s waiver also precludes appellate review of his claim that he was deprived of the effective assistance of counsel inasmuch as the alleged ineffectiveness does not relate to the voluntariness of his plea (see People v. Atkins, 157 AD3d 899; People v. Amay, 156 AD3d 895; People v. Flowers, 152 AD3d 791).BALKIN, J.P., LEVENTHAL, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.PEOPLE, etc., res, v. Carlos Hendricks, ap — (Ind. No. 10169/14)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered April 1, 2016, convicting him of attempted criminal sexual act in the first degree, sexual abuse in the first degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, certain testimony of the complainant was properly admitted into evidence for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest (see People v. Ludwig, 24 NY3d 221; People v. Genao, 145 AD3d 739).The Supreme Court providently exercised its discretion in allowing the jury to use a transcript as an aid while listening to a certain audiotape recording at trial (see People v. Redmond, 41 AD3d 514, 515; People v. Wilson, 207 AD2d 463, 464; People v. Carrington, 151 AD2d 687).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Leventhal, J.P.; Cohen, Maltese and Barros, JJ.William Licata, res, v. Carlo Cuzzi, ap — (Index No. 472/16)In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), entered July 26, 2016, and a judgment of the same court entered October 7, 2016. The order granted the plaintiff’s motion for summary judgment on the complaint. The judgment, upon the order, awarded the plaintiff the total sum of $53,437.50.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241, 248). 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]).The plaintiff commenced this action to recover damages for breach of contract, and moved for summary judgment on the complaint after issue was joined. In support of his motion for summary judgment, the plaintiff submitted his own affidavit in which he averred, among other things, that on November 28, 2014, he loaned the defendant the sum of $200,000 by issuing a personal check to him in that amount. He submitted a copy of a canceled check demonstrating that the check was deposited into the defendant’s personal bank account. According to the parties’ verbal agreement, the defendant was required to repay the loan to the plaintiff in four quarterly installments of $50,000, with the last installment due on November 28, 2015. The plaintiff averred that the defendant made the first three quarterly payments, but failed to make the last payment. The plaintiff submitted canceled checks showing that the defendant made three of the quarterly payments totaling the sum of $150,000. The plaintiff averred that, upon demand, the defendant refused to pay the last installment. The plaintiff’s submission of his affidavit, along with the canceled checks, was sufficient to meet his burden of establishing his prima facie entitlement to judgment as a matter of law (see Bell v. Xanthopoulos, 202 AD2d 910, 911; Costantini v. Bimco Indus., 125 AD2d 531, 531).In opposition, the defendant failed to raise a triable issue of fact. The defendant’s affidavit did not rebut the plaintiff’s evidence showing, inter alia, that the plaintiff loaned him the sum of $200,000, that the defendant made three of the installment payments, and that the defendant failed to make the last payment. The defendant’s unsupported, vague, and conclusory allegations of alleged wrongdoing on the part of the plaintiff or a company affiliated with the plaintiff were insufficient to raise a triable issue of fact (see Griffon V, LLC v. 11 E. 36th, LLC, 90 AD3d 705, 707; Jin Sheng He v. Sing Huei Chang, 83 AD3d 788, 789; Ihmels v. Kahn, 126 AD2d 701, 702). Moreover, given that the information necessary to oppose the motion was within the personal knowledge of the defendant, summary judgment was not premature. ”The mere hope that evidence sufficient to defeat the motion might be uncovered during the discovery process is an insufficient basis for denying the motion” (Lamore v. Panapoulos, 121 AD3d 863, 864; see Merchant v. Greyhound Bus Lines, Inc., 45 AD3d 745, 746).Accordingly, we agree with the Supreme Court that the plaintiff was entitled to summary judgment on the complaint.LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.MATTER of City of Long Beach, ap, v. Long Beach Professional Fire Fighters Association, Local 287, res — (Index No. 6696/15)In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated November 10, 2015. The order denied the petition and granted the respondent’s cross motion to compel arbitration.ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying that branch of the petition which was to stay arbitration of the claim regarding the layoffs of certain firefighters, and substituting therefor a provision granting that branch of the petition, and (2) by deleting the provision thereof granting that branch of the cross motion which was to compel arbitration of the claim regarding the layoffs of the firefighters, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.The petitioner, City of Long Beach, and the respondent, Long Beach Professional Fire Fighters Association, Local 287 (hereinafter the union), entered into a collective bargaining agreement (hereinafter the CBA) covering the period from July 1, 2004, through June 30, 2010. Firefighters and any municiple employees assigned to the fire department, including paramedics, were covered by the CBA. In early 2015, the City laid off several firefighters and hired several paramedics. The City unilaterally set the terms of employment for the paramedics when they were hired.The union filed a grievance and, when the grievance was denied, filed a demand for arbitration. The demand for arbitration alleged that the City violated the CBA when it hired the paramedics without providing them with the wages, fringe benefits, and conditions of employment contained in the CBA, and when it laid off the firefighters. The City commenced the instant proceeding to stay the arbitration. The union cross-moved to compel arbitration. In the order appealed from, dated November 10, 2015, the Supreme Court denied the petition and granted the cross motion. The City appeals.The Taylor Law (codified as Civil Service Law article 14) empowers and, in fact, requires a public employer to bargain with employee organizations and to enter written agreements governing the terms and conditions of employment (see Civil Service Law §204[1], [2]; see also Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 518-521; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372). An employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in “the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy” (Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521 [internal quotation marks omitted). Thus, although the Taylor Law reflects New York's "'strong'" policy favoring arbitration, this principle is not without limits (Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521, quoting Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 NY3d 563, 575; see Matter of New York City Dept. of Sanitation v. MacDonald, 87 NY2d 650, 656).The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, the court must first ask whether the parties may arbitrate the dispute by inquiring if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278; see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521). If there is a prohibition, the inquiry ends and an arbitrator cannot act (see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v. Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80; Matter of Blackburne [Governor's Off. of Empl. Relations], 87 NY2d 660, 665). If no prohibition exists, the court then asks whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement (see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 519).Thus, a dispute is nonarbitrable if a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided by arbitration (see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521; Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 8-9; Matter of Sprinzen [Nomberg], 46 NY2d 623, 631). Put differently, a court must stay arbitration where it can conclude, upon the examination of the parties’ contract and any implicated statute on their face, “that the granting of any relief would violate public policy” (Matter of City of New York v. Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 284; see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521; Matter of Blackburne [Governor's Off. of Empl. Relations], 87 NY2d at 665; cf. Matter of Port Washington Union Free School Dist. v. Port Washington Teachers Assn., 45 NY2d 411, 418).Addressing the union’s claim regarding the layoffs of the firefighters, Civil Service Law §80(1) provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others—what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public (see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521; Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 NY2d 774, 778). In the absence of bad faith, fraud, or collusion, that discretion “is an undisputed management prerogative” for the public’s benefit, and cannot be altered or modified by agreement or otherwise (Matter of Saur v. Director of Creedmoor Psychiatric Ctr., 41 NY2d 1023, 1024; see Matter of County of Chautauqua v. Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 518-521; Matter of Piekielniak v. Axelrod, 92 AD2d 968, 969). Thus, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.With regard to the union’s claims relating to the terms and conditions of employment of the paramedics, no public policy precludes arbitration of those claims. Further, the arbitration provision in the CBA permits arbitration of such claims.Accordingly, the Supreme Court should have granted that branch of the petition which was to stay arbitration of the claim regarding the layoffs of the firefighters and should have denied that branch of the cross motion which was to compel arbitration of that claim.BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Mastro, J.P.; Cohen, Lasalle and Brathwaite Nelson, JJ.MATTER of Mary T. Sabatelli, etc., deceased. Christina Sabatelli respondents; Ralph Sabatelli ap — (File No. 1723/13)In a contested probate proceeding, the objectant Ralph Sabatelli appeals, and the objectant Barbara Sabatelli separately appeals, from (1) an order of the Surrogate’s Court, Suffolk County (John M. Czygier, Jr., S.), entered April 13, 2016, which granted the motion of the petitioner Rosemarie Sabatelli for summary judgment dismissing the objections to probate of the last will and testament of the decedent, and (2) a decree of the same court entered May 25, 2016, which, upon the order, admitted the will to probate.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the decree is affirmed; and it is further,ORDERED that one bill of costs is awarded to the petitioners appearing separately and filing separate briefs, payable by the objectants personally.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501[a][1]).On January 25, 2012, Mary T. Sabatelli (hereinafter the decedent) executed her last will and testament under the supervision of an attorney. The will bequeathed the sum of $250 to each of the decedent’s three adopted children, who were previously her stepchildren. Further, the will provided that the residuary estate would be shared equally among the decedent’s three biological children, and it designated the three biological children as co-executors. Following the decedent’s death, her biological children (hereinafter collectively the petitioners) commenced this proceeding to admit the will to probate, and two of her adopted children (hereinafter together the objectants) filed objections to probate.After discovery was completed, the petitioner Rosemarie Sabatelli (hereinafter Rosemarie) moved for summary judgment dismissing the objections to probate. In an order entered April 13, 2016, the Surrogate’s Court granted Rosemarie’s motion. In a decree entered May 25, 2016, the court, upon the order, admitted the will to probate. The objectants separately appeal.In a contested probate proceeding, summary judgment is appropriate where a petitioner establishes a prima facie case for probate and the objectant fails to raise a triable issue of fact concerning the validity of the will (see Matter of Moskowitz, 116 AD3d 958; Matter of Colverd, 52 AD3d 971, 972; Matter of Dietrich, 271 AD2d 894, 894; see also Matter of Curtis, 130 AD3d 722, 722).The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (see EPTL 3-2.1[a]; Matter of Collins, 60 NY2d 466, 468; Matter of Rottkamp, 95 AD3d 1338, 1339). Where the will is drafted by an attorney and the drafting attorney supervises the will’s execution, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Moskowitz, 116 AD3d at 959; Matter of Farrell, 84 AD3d 1374, 1374). Additionally, where the propounded will is accompanied by an attestation clause and a self-proving affidavit, a presumption of compliance with the statutory requirements arises (see Matter of Mele, 113 AD3d 858, 859; Matter of Greene, 89 AD3d 941, 943).Here, Rosemarie made a prima facie showing of entitlement to judgment as a matter of law dismissing the objections alleging lack of due execution by submitting, inter alia, the will, which contains an executed attestation clause and is accompanied by a self-proving affidavit, the transcript of the deposition testimony of the attorney-drafter, and the transcripts of the deposition testimony of the attesting witnesses (see Matter of Templeton, 116 AD3d 781; Matter of Williams, 91 AD3d 661, 662; Matter of Mooney, 74 AD3d 1073, 1074). In opposition to the prima facie showing, the objectants failed to raise a triable issue of fact (see Matter of Collins, 60 NY2d at 470-472; Matter of Halpern, 76 AD3d 429, 432, affd 16 NY3d 777; Matter of Malan, 56 AD3d 479, 479; Matter of James, 17 AD3d 366, 367). Accordingly, the Surrogate’s Court properly granted that branch of Rosemarie’s motion which was for summary judgment dismissing the objections alleging lack of due execution.Additionally, the proponent of a will bears the initial burden of establishing that the decedent understood the nature and consequences of making the will, the nature and extent of his or her property, and the natural objects of his or her bounty (see Matter of Kumstar, 66 NY2d 691, 692; Matter of Prevratil, 121 AD3d 137, 140-141). In this case, the self-proving affidavit of the attesting witnesses, in which each witness declared that the decedent “was suffering no defect of sight, hearing or speech, or from any other physical or mental impairment that would affect [her] capacity to make a valid Will,” constituted prima facie evidence of the facts attested to and created a presumption of testamentary capacity (see Matter of Jacobs, 153 AD3d 622, 622; Matter of Curtis, 130 AD3d at 722-723). In opposition, the objectants failed to raise a triable issue of fact (see Matter of Mele, 113 AD3d at 860; Matter of Rottkamp, 95 AD3d at 1339). Thus, the Surrogate’s Court property granted that branch of Rosemarie’s motion which was for summary judgment dismissing the objections alleging that the decedent lacked testamentary capacity.Further, we agree with the Surrogate’s Court that Rosemarie was entitled to summary judgment dismissing the objections alleging undue influence. Rosemarie demonstrated her prima facie entitlement to judgment as a matter of law by presenting evidence that the will was duly executed, that the decedent possessed testamentary capacity, and that no undue influence was exercised upon her (see Matter of Shui Yuk Mak Chin, 153 AD3d 628; Matter of Moskowitz, 116 AD3d at 960). In opposition, the objectants failed to raise a triable issue of fact (see Matter of Eastman, 63 AD3d 738, 740; Matter of Klingman, 60 AD3d 949, 950).Accordingly, the Surrogate’s Court properly granted Rosemarie’s motion for summary judgment dismissing the objections to probate, and admitted the will to probate.MASTRO, J.P., COHEN, LASALLE and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.JPMorgan Chase Bank, National Association, etc., res, v. Howard Daar appellants def — (Index No. 10936/09)In an action to foreclose a mortgage, the defendants Howard Daar and Robin Daar appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 13, 2015. The order, insofar as appealed from, denied, without a hearing, those branches of the motion of the defendants Howard Daar and Robin Daar which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale dated November 12, 2014, entered upon their failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against them for lack of personal jurisdiction, and denied those branches of their motion which were pursuant to CPLR 5015(a)(1) to vacate the judgment of foreclosure and sale upon the ground of excusable default, and pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.ORDERED that the order is affirmed insofar as appealed from, with costs.In June 2009, the plaintiff commenced this action against Howard Daar and Robin Daar (hereinafter together the defendants), among others, to foreclose a mortgage. The defendants failed to appear or answer the complaint. In August 2010, the Supreme Court granted the plaintiff’s motion for an order of reference. Thereafter, the court, upon the plaintiff’s motion, issued a judgment of foreclosure and sale dated November 12, 2014. In February 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and pursuant to CPLR 3215(c) to dismiss the action insofar as asserted against them as abandoned. In an order entered October 13, 2015, the court denied the motion. The defendants appeal.We agree with the Supreme Court’s determination to deny, without a hearing, those branches of the defendants’ motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered upon their failure to appear or answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. The process server’s affidavits constituted prima facie evidence of proper service, and the defendants’ allegations were insufficient to refute the content of the affidavits (see JPMorgan Trust Bank, N.A. v. Hoffmann, 154 AD3d 699; Citimortgage, Inc. v. Baser, 137 AD3d 735, 736; Wells Fargo Bank, N.A. v. McGloster, 48 AD3d 457, 458). The discrepancies between the appearance of Robin Daar and the description of her provided in the process server’s affidavits were minor and insufficient to warrant a hearing (see JPMorgan Trust Bank, N.A. v. Hoffmann, 154 AD3d 700; Citimortgage, Inc. v. Baser, 137 AD3d at 736; Wells Fargo Bank, N.A. v. McGloster, 48 AD3d at 458).We also agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 5015(a)(1) to vacate the judgement of foreclosure and sale. To demonstrate their entitlement to vacatur of the judgment upon the ground of excusable default, the defendants were required to establish, inter alia, a reasonable excuse for their default (see CPLR 5015[a][1]; 92-18 149th St. Realty Corp. v. Stolzberg, 152 AD3d 560, 562). The defendants failed to do so, since the only excuse they proffered was that they were not served with process (see Sass Muni IV DTR v. Braxter, 143 AD3d 798, 799; Community W. Bank, N.A. v. Stephen, 127 AD3d 1008, 1009; Indymac Fed. Bank FSB v. Quattrochi, 99 AD3d 763, 765; Reich v. Redley, 96 AD3d 1038, 1039). The absence of a reasonable excuse for the defendants’ default renders it unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Telford, 153 AD3d 881, 882; Bank of Am., N.A. v. Agarwal, 150 AD3d 651, 652; Sass Muni IV DTR v. Braxter, 143 AD3d at 799).We further agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned, since the record demonstrates that the plaintiff initiated proceedings for entry of a judgment within one year of the defendants’ default (see U.S. Bank N.A. v. Bassett, 137 AD3d 1109, 1110; Wells Fargo Bank, N.A. v. Combs, 128 AD3d 812, 813).BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Trump Village Section 4, Inc. res, v. Yuliya Bezvoleva, etc. appellants def — (Index No. 509277/14)In an action to recover damages for defamation, the defendants Yuliya Bezvoleva, a/k/a Julia Bezvoleva, and Inna Yeselson appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated August 10, 2015, as denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Yuliya Bezvoleva, a/k/a Julia Bezvoleva, and Inna Yeselson which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them to the extent that it was based on the statements quoted in paragraphs 53 and 55 of the complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The plaintiff Trump Village Section 4, Inc. (hereinafter Trump Village), is a cooperative corporation that owns apartment buildings in Brooklyn. At the time of commencement of this action, the plaintiff Igor Oberman was the president and chairman of the board of directors of Trump Village, and the defendants Inna Yeselson and Yuliya Bezvoleva, a/k/a Julia Bezvoleva (hereinafter together the defendants), were shareholders of Trump Village.The plaintiffs commenced this action to recover damages for defamation alleging that the defendants, among others, authored and published defamatory statements about the plaintiffs on a website. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action. The Supreme Court denied the motion, and the defendants appeal.On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d 83, 87; Rodriguez v. Daily News, L.P., 142 AD3d 1062, 1063). Thus, on a motion to dismiss pursuant to CPLR 3211(a)(7) we consider only “whether any reading of the complaint supports the defamation claim” (Davis v. Boeheim, 24 NY3d 262, 272; see Silsdorf v. Levine, 59 NY2d 8, 12). ”Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19).The defendants contend that their alleged statements were not actionable because they constituted pure opinion. ”Since falsity is a necessary element of a defamation cause of action and only ‘facts’ are capable of being proven false, ‘it follows that only statements alleging facts can properly be the subject of a defamation action’” (Gross v. New York Times Co., 82 NY2d 146, 152-153, quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 NY2d 130, 139; see Davis v. Boeheim, 24 NY3d at 268). Thus, “[a]n expression of pure opinion is not actionable,… no matter how vituperative or unreasonable it may be” (Steinhilber v. Alphonse, 68 NY2d 283, 289). Factors weighing on whether a statement is pure opinion are “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal… readers or listeners that what is being read or heard is likely to be opinion, not fact” (Brian v. Richardson, 87 NY2d 46, 51 [internal quotation marks omitted]; see Davis v. Boeheim, 24 NY3d at 270).Here, the allegedly defamatory statements set forth in paragraphs 53 and 55 of the complaint—which asserted, among other things, that Oberman was “attempting insult of American laws & freedom” and was attempting to “destroy Trump Village 4 and sell our buildings to the highest bidder after we are bankrupt”—constituted nonactionable expressions of opinion. The statements set forth in paragraphs 53 and 55 were not easily understandable, were largely incapable of being proven true or false, and, in context, signaled to the average reader that the statements were opinion, not fact. Therefore, the Supreme Court should have granted that branch of the motion which was to dismiss the complaint insofar as asserted against the defendants to the extent that it was based on the statements set forth in those two paragraphs (see LeBlanc v. Skinner, 103 AD3d 202, 213).However, the Supreme Court properly denied those branches of the motion that related to the remainder of the statements identified in the complaint. Even if a reader could interpret those statements as pure opinion, “taking the words in their ordinary meaning and in context, [they are] also susceptible to a defamatory connotation’” (Davis v. Boeheim, 24 NY3d at 272, quoting Seeney v. Prisoners’ Legal Servs. of N.Y., 146 AD2d 1, 4).We reject the defendants’ contention that the allegations of defamation fail to state a cause of action because their statements were protected by qualified privileges, and insufficient facts were alleged to show that they spoke with malice necessary to defeat those privileges (see generally Stukuls v. State of New York, 42 NY2d 272). Since “the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has ‘no obligation to show evidentiary facts to support [his or her] allegations of malice on [such] a motion’” (Sokol v. Leader, 74 AD3d 1180, 1182, quoting Kotowski v. Hadley, 38 AD3d 499, 500). Here, to the extent that the defendants’ statements may be shielded by any qualified privileges, the allegations of malice that were set forth in the complaint and in an affidavit submitted by Oberman preclude dismissal of the complaint insofar as asserted against the defendants for failure to state a cause of action (see CPLR 3211[a][7]; Kamchi v. Weisman, 125 AD3d 142, 158-159; Colantonio v. Mercy Med. Ctr., 115 AD3d 902, 902-903; Sokol v. Leader, 74 AD3d at 1182; Kotowski v. Hadley, 38 AD3d at 500).We agree with the Supreme Court that the Communications Decency Act (47 USC §230) did not warrant dismissal of the complaint at this juncture. A defendant is “immune from state law liability if (1) it is a ‘provider or user of an interactive computer service’; (2) the complaint seeks to hold the defendant liable as a ‘publisher or speaker’; and (3) the action is based on ‘information provided by another information content provider’” (Shiamili v. Real Estate Group of N.Y., Inc., 17 NY3d 281, 286-287, quoting 47 USC §230[c][1]). ”[I]f a defendant service provider is itself the ‘content provider,’ it is not shielded from liability” (Shiamili v. Real Estate Group of N.Y., Inc., 17 NY3d at 289, quoting 47 USC §230[c][1]). Here, the plaintiffs alleged that the defendants authored the defamatory statements, which would mean that the defendants were content providers within the meaning of the statute (cf. Shiamili v. Real Estate Group of N.Y., Inc., 17 NY3d at 290). If that allegation is true, as we must assume for purposes of this motion, the Communications Decency Act does not shield the defendants from liability for defamation.The plaintiffs’ quotation of allegedly defamatory language in the complaint set forth “the particular words complained of” (CPLR 3016[a]). Moreover, “[i]f ‘it appear[s] from affidavits submitted in opposition to [the] motion… that facts essential to justify opposition may exist but cannot then be stated,’ a court may, in the exercise of its discretion” deny the motion, allowing the moving parties to assert the objection in their responsive pleading (Goel v. Ramachandran, 111 AD3d 783, 788, quoting CPLR 3211[d]; see CPLR 3211[d]). Here, the Supreme Court providently exercised its discretion in denying dismissal as to the defendants at this stage of the action based on the plaintiffs’ failure to plead authorship and publication dates with greater particularity (see Cantor v. Levine, 115 AD2d 453, 454; Ramsay v. Mary Imogene Basset Hosp., 113 AD2d 149, 152; cf. Halmar Corp. v. Hudson Founds., 212 AD2d 505, 506).The parties’ remaining contentions either need not be reached in light of our determination or are without merit.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Chambers, J.P.; Cohen, Duffy and Connolly, JJ.MATTER of Tyriek J. (Anonymous). Suffolk County Department of Social Services, res; Tamika J. (Anonymous), ap — (Docket No. N-6848-17)In a proceeding pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Suffolk County (Caren Loguercio, J.), dated May 7, 2017. The order directed the mother to submit to a psychological examination prior to a fact-finding hearing.ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements.In 2017, the Suffolk County Department of Social Services (hereinafter the petitioner) filed a neglect petition against the mother, alleging, among other things, that she failed to “work cooperatively with the appropriate agencies” to ensure that the subject child, whom the mother reported to have been sexually abused, “would receive appropriate counseling and services.” The petitioner also alleged that the mother failed “to take any action to ensure that [the child] was being adequately and appropriately cared for by his father,” who was alleged to be abusive toward the child. The mother consented to the temporary removal of the child. Thereafter, prior to a fact-finding hearing, the petitioner requested that the mother be directed to submit to a psychological examination. In an order dated May 7, 2017, the Family Court directed the mother to submit to a psychological examination prior to a fact-finding hearing. The mother appeals.The determination whether to direct a psychological examination is within the sound discretion of the Family Court (see Family Ct Act §251; Matter of Angelica S. [Cynthia C.], 144 AD3d 484, 485). Under the circumstances of this case, it was an improvident exercise of discretion for the Family Court to direct the mother to submit to a psychological examination prior to a fact-finding hearing. The record is devoid of any indication that the mother may suffer from a mental illness. Nor did the petition contain any allegations which placed the mother’s mental health at issue (see Matter of Sassower-Berlin v. Berlin, 31 AD3d 771; Matter of Thompson v. Thomson, 267 AD2d 516, 519).CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.By Scheinkman, P.J.; Roman, Sgroi and Maltese, JJ.MATTER of Azimjon A. (Anonymous). Administration for Childrens Services, petitioner- res; Adolat K. (Anonymous), respondent- appellant res — (Proceeding No. 1)MATTER of Aziza A. (Anonymous). Administration for Childrens Services, petitioner- res; Adolat K. (Anonymous), respondent- appellant res — (Proceeding No. 2) (Docket Nos. N-5487-15, N-5488-15)In related proceedings pursuant to Family Court Act article10, the mother appeals from an order of the Family Court, Kings County (Ann E. O’Shea, J.), dated February 24, 2017. The order denied the mother’s motion pursuant to Family Court Act §1061, inter alia, to modify an order of disposition of the same court dated November 5, 2015.ORDERED that the order is affirmed, without costs or disbursements.In February 2015, the petitioner commenced these proceedings pursuant to Family Court Act article 10 alleging, inter alia, that the mother neglected the subject children. On September 11, 2015, the mother consented to a finding of neglect without admission. In an order of disposition dated November 5, 2015, and entered upon the mother’s consent, the Family Court directed that the children would continue to reside with the mother and the father under Administration for Children’s Services (hereinafter ACS) supervision until March 10, 2016, and the mother would refrain from using corporal punishment, cooperate with ACS supervision, and complete counseling services.In October 2016, the mother moved pursuant to Family Court Act §1061 to modify the order of disposition by suspending it through March 10, 2016, and vacating the finding of neglect. The Family Court denied the motion, and the mother appeals.Family Court Act §1061 provides that, for good cause shown, a court may set aside, modify, or vacate any order issued in the course of a child protective proceeding. Here, the Family Court properly determined that the mother failed to establish good cause to modify the order of disposition and vacate the finding of neglect given the serious nature of the mother’s conduct and her lack of remorse for her actions (see Matter of Inocencia W. [Yasha W.], 147 AD3d 865, 866; Matter of Josephine G.P. [Madeline P.], 126 AD3d 906, 907; cf. Matter of Anoushka G. [Cyntra M.], 132 AD3d 867, 868). Accordingly, we agree with the court’s denial of the mother’s motion.SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.By Mastro, J.P.; Rivera, Austin and Lasalle, JJ.MATTER of Elysia R. M. (Anonymous). New York Foundling Hospital, petitioner-res; Shamaya M. (Anonymous), appellant res — (Proceeding No. 1)MATTER of Richard M. (Anonymous). New York Foundling Hospital, petitioner-res; Shamaya M. (Anonymous), appellant res — (Proceeding No. 2) (Docket Nos. B-1201-14, B-1202-14)In two related proceedings pursuant to Social Services Law §384-b, the mother appeals from an order of the Family Court, Richmond County (Karen Wolff, J.), dated December 15, 2016. The order denied the mother’s motion, inter alia, to vacate an order of fact-finding and disposition of the same court dated November 16, 2015, which, upon her default, terminated her parental rights on the ground of permanent neglect.ORDERED that the order dated December 15, 2016, is affirmed, without costs or disbursements.In March 2014, the New York Foundling Hospital filed petitions alleging that the mother had permanently neglected her children, Elysia R. M. and Richard M. (hereinafter together the subject children). On October 9, 2015, the Family Court held a fact-finding and dispositional hearing at which the mother failed to appear. In an order of fact-finding and disposition dated November 16, 2015, entered upon the mother’s default, the court found that the mother had permanently neglected the subject children, terminated the mother’s parental rights, and freed the subject children for adoption. In October 2016, the mother moved to vacate the order of fact-finding and disposition, and to restore the matter to the calendar for a new hearing. By order dated December 15, 2016, the court denied the motion. The mother appeals, contending that she had a reasonable excuse for her failure to appear at the hearing, and a meritorious defense to the allegations of permanent neglect.The determination of whether to relieve a party of a default is within the sound discretion of the Family Court (see Matter of Clarence D.H. [Fidelina A.], 150 AD3d 1113, 1114; Matter of Isabella R.W. [Jessica W.], 142 AD3d 503, 504; Matter of Kimberly S.K. [Kimberly K.], 138 AD3d 853, 854; Matter of Stephen Daniel A. [Sandra M.-A.], 122 AD3d 837, 839; Matter of Mia P.R.D. [David D.], 113 AD3d 679, 680). A parent seeking to vacate an order entered upon his or her default in a termination of parental rights proceeding must establish that there was a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1]; Matter of Clarence D.H. [Fidelina A.], 150 AD3d at 1114; Matter of Isabella R.W. [Jessica W.], 142 AD3d at 504; Matter of Stephen Daniel A. [Sandra M.-A.], 122 AD3d at 839; Matter of Mia P.R.D. [David D.], 113 AD3d at 680; Matter of Daniel Marcus Y. [Marilyn Y.], 77 AD3d 843, 843).Here, the Family Court providently exercised its discretion in denying the mother’s motion, as she failed to establish a reasonable excuse for her failure to appear at the hearing. Although the mother claimed that she was unable to attend the hearing due to transit delays, she submitted no documentary evidence to substantiate her claim in her affidavit (see Matter of Joshua E.R. [Yolaine R.], 123 AD3d 723, 725; Matter of Kenneth S. v. Bethzaida P., 95 AD3d 1022, 1023; Matter of Arianna-Samantha Lady Melissa S. [Carissa S.], 134 AD3d 582, 583; Matter of Chelsea Antoinette A. [Anna S.], 88 AD3d 627, 627). Additionally, we note that the conclusory assertions in the mother’s affidavit were insufficient to establish the existence of a potentially meritorious defense to the allegations of permanent neglect (see Matter of Raphanello J.N.L.L. [Rasheem L.], 119 AD3d 580, 580-581; Matter of Jenna C. [Omisa C.], 81 AD3d 941, 942; Matter of Anthony Christopher G., 18 AD3d 469, 470; Matter of Vanessa F., 9 AD3d 464).Accordingly, the Family Court providently exercised its discretion in denying the mother’s motion to vacate the order of fact-finding and disposition entered upon her default, and to restore the matter to the calendar for a new hearing.MASTRO, J.P., RIVERA, AUSTIN and LASALLE, JJ., concur.By Rivera, J.P.; Miller, Nelson and Iannacci, JJ.PEOPLE, res, v. Catalin Buculei, ap — Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated June 12, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under New York’s Sex Offender Registration Act (hereinafter SORA; Correction Law §168-n[3]).Here, contrary to the defendant’s contention, the Supreme Court properly assessed 20 points under risk factor 7 (relationship with victim), as the hearing evidence was clear and convincing that the defendant met the child victim on the Internet and established a relationship with her for the primary purpose of victimizing her (see SORA: Risk Assessment Guidelines and Commentary [2006; hereinafter Guidelines] at 12; United States v. Buculei, 262 F3d 322 [4th Cir] [affirming the defendant's convictions on appeal]). The court also properly assessed 10 points under risk factor 12 (acceptance of responsibility). The federal probation report included statements in which the defendant denied intending to have sexual contact with the victim or to videotape her, and there was no evidence of any subsequent acceptance of responsibility (see Guidelines at 15-16). Thus, the evidence was clear and convincing that the defendant did not accept responsibility for his conduct (see People v. Hutchinson, 132 AD3d 606, 607; People v. Valdez, 123 AD3d 785, 786; People v. Smith, 78 AD3d 917, 918; People v. Palladino, 46 AD3d 864, 865).The defendant’s remaining contention is without merit.Accordingly, the Supreme Court properly designated the defendant a level two sex offender.RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.PEOPLE, res, v. Roque Cepeda, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth Foley, J.), dated June 13, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the Supreme Court assessed the defendant 90 points on the risk assessment instrument, within the range for a presumptive designation as a level two sex offender. On appeal, the defendant challenges the assessment of 20 points under risk factor 4 (duration of offense conduct with victim).In establishing a defendant’s risk level pursuant to SORA, the People have “the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (Correction Law §168-n[3]). In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, “and any relevant materials and evidence” submitted by the parties, including “reliable hearsay evidence” (id.), which may come from, among other documents, evaluative reports completed by the supervising probation officer, or case summaries prepared by the Board of Examiners of Sex Offenders (see People v. Mingo, 12 NY3d 563, 573; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]).Contrary to the defendant’s contention, the Supreme Court properly assessed 20 points under risk factor 4. Assessment of points in that category is appropriate where the People present clear and convincing evidence that the defendant engaged in a continuing course of sexual contact with the same victim (see Guidelines at 10). For the purposes of SORA, an offender has engaged in a continuing course of sexual contact, insofar as relevant in this case, when he or she engages in two or more acts of sexual contact, at least one of which is an act of oral sexual conduct, which acts are separated in time by at least 24 hours (see id.). Here, the defendant pleaded guilty to sexual abuse in the first degree, admitting to oral sexual conduct against the subject child. The People’s hearing evidence included a statement by the child detailing sexual contact by the defendant against her on a separate occasion that was separated in time by more than 24 hours from the incident to which the defendant admitted in his plea of guilty. The People additionally submitted the probation report, which included an admission by the defendant consistent with the child’s report of the separate incident. Moreover, any ambiguity as to the defendant’s admission was clarified by the hearing Justice’s notes and recollection of the sentencing proceeding, at which the hearing Justice had questioned the defendant regarding the subject statement (see People v. Myers, 306 AD2d 334; People v. Mitchell, 300 AD2d 377).Accordingly, the Supreme Court properly designated the defendant a level two sex offender.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Barros and Brathwaite Nelson, JJ.PEOPLE, res, v. Naquan Ginyard, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Raymond Guzman, J.), dated July 24, 2013, 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.Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in granting the People’s application, upon the recommendation of the Board of Examiners of Sex Offenders (hereinafter the Board), for an upward departure from the presumptive risk level two designation to risk level three. The People demonstrated, by clear and convincing evidence, that there was an aggravating factor not adequately taken into account by the Board’s risk assessment instrument (hereinafter RAI) (see People v. Gillotti, 23 NY3d 841, 861). Specifically, on July 16, 2003, before committing the sex offense upon which the RAI was based, the defendant was arrested and charged with committing a sex offense in South Carolina. The sex offense upon which the RAI was based occurred between July 1, 2004, and October 31, 2005. He was convicted of that offense, upon his plea of guilty, on November 2, 2005. On November 10, 2005, the defendant pleaded guilty to contributing to the delinquency of a minor in South Carolina based on the July 2003 incident; however, the RAI did not account for the defendant’s subsequent conviction. The case summary and the documentation relating to the defendant’s conviction in South Carolina indicate that the defendant, who was then 25 years old, admitted to having sexual intercourse with a 15-year-old girl in South Carolina. These documents constitute reliable hearsay and provided clear and convincing evidence supporting the court’s determination to grant the People’s application for an upward departure (see People v. Mingo, 12 NY3d 563, 574; People v. Palmer, 68 AD3d 1364, 1366).The defendant’s remaining contentions are without merit.Accordingly, the Supreme Court providently exercised its discretion in designating the defendant a level three sex offender.SCHEINKMAN, P.J., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Edward Mulhern, ap, v. Michael Gregory, et al., res — (Index No. 602048/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered February 16, 2016. The order granted the defendants’ cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident, and denied, as academic, the plaintiff’s unopposed motion for summary judgment on the issue of liability.ORDERED that the order is reversed, on the law, with costs, the defendants’ cross motion for summary judgment dismissing the complaint is denied, and the plaintiff’s unopposed motion for summary judgment on the issue of liability is granted.On August 19, 2010, the plaintiff was a passenger in a motor vehicle that was struck in the rear, while stopped, by a vehicle owned by the defendant Michael Gregory and operated by the defendant Sean Gregory. The plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained as a result of the subject accident. Subsequently, the plaintiff moved for summary judgment on the issue of liability. The defendants cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident. The Supreme Court granted the defendants’ cross motion, and denied the plaintiff’s unopposed motion as academic. The plaintiff appeals.The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracic regions of the plaintiff’s spine and to his left shoulder did not constitute a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Staff v. Yshua, 59 AD3d 614; see also Lively v. Fernandez, 85 AD3d 981, 981-982). The defendants also submitted evidence establishing that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law §5102(d) (see Kreimerman v. Stunis, 74 AD3d 753).In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether he sustained a serious injury to the cervical and thoracic regions of his spine as a result of the subject accident (see Perl v. Meher, 18 NY3d 208, 218-219). Thus, the Supreme Court should have denied the defendants’ cross motion for summary judgment dismissing the complaint.In light of our determination, the plaintiff’s unopposed motion for summary judgment on the issue of liability is no longer academic. We address the merits of the motion in the interest of judicial economy (see Karademir v. Mirano-Jelinek, 153 AD3d 509, 510).“A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” (Zdenek v. Safety Consultants, Inc., 63 AD3d 918, 918; see Robayo v. Aghaabdul, 109 AD3d 892, 893; Jumandeo v. Franks, 56 AD3d 614, 614; Arias v. Rosario, 52 AD3d 551, 552; Hakakian v. McCabe, 38 AD3d 493, 493).Here, the plaintiff met his prima facie burden by demonstrating, through the submission of his undisputed deposition testimony, that the defendants’ vehicle struck the rear of the vehicle in which he was a passenger while the latter vehicle was stopped (see Sayyed v. Murray, 109 AD3d 464, 464). The defendants did not oppose the plaintiff’s motion and, thus, failed to raise a triable issue of fact in opposition. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.MATTER of D.D., etc. petitioners- res, v. Village of Great Neck, res, Great Neck Union Free School District ap — (Index No. 608954/16)In a proceeding pursuant to General Municipal Law §50-e for leave to serve a late notice of claim, Great Neck Union Free School District, Great Neck Public Schools, Great Neck Public School District, and Lakeville Elementary School appeal from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered February 28, 2017. The order granted a petition for leave to serve a late notice of claim against them.ORDERED that the order is affirmed, with costs.On February 24, 2016, the then-six-year-old infant petitioner (hereinafter D.D.) fractured his left arm while taking a class at a private gym. The arm was put in a cast, and D.D. was given a doctor’s note that his mother, the petitioner Renee Holstein, provided to the respondent Lakeville Elementary School (hereinafter the school). The note stated that D.D. needed assistance while going from the bus to class, while using stairs, and while carrying his backpack. The petitioners allege that on March 4, 2016, while carrying his coat and backpack and walking or running in the hallway of the school en route to an after-school program located within the school, D.D. tripped and fell, further injuring his left arm. According to the petitioners, at the time of the accident, D.D. was unsupervised and traveling in the hallway with two of his friends.Following the accident, Holstein sent emails and spoke with various employees of Great Neck Union Free School District (hereinafter collectively, with the respondents Great Neck Public Schools, Great Neck Public School District, and the school, the District) about how the accident occurred and the extent of D.D.’s injuries. Holstein also inquired about who was supervising D.D. on behalf of the District at the time of the accident and why D.D. was carrying his backpack.In April 2016, counsel for the petitioners served a notice of claim upon the Village of Great Neck, indicating that the petitioners intended to pursue a claim to recover damages stemming from negligence in, among other things, allowing D.D. and other students to be unsupervised and to run through the halls of the school, and in failing to escort D.D. to the after-school program despite the fact that his doctor’s note indicated that D.D. required special assistance. At that time, the petitioners did not serve a notice of claim on the District.While drafting a summons and complaint related to the accident, the petitioners’ counsel realized that the District had not been served with the notice of claim. Thereafter, in November 2016, the petitioners commenced this proceeding pursuant to General Municipal Law §50-e for leave to serve a late notice of claim against the District relating to claims sounding in negligence for injuries sustained by D.D. The Supreme Court granted the petition and the District appeals.Timely service of a notice of claim is a condition precedent to an action sounding in tort and commenced against a municipality (see General Municipal Law §50-e[1][a]; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d 909, 910; Matter of Zaid v. City of New York, 87 AD3d 661, 662). This requirement also applies to tort actions commenced against, among others, school districts and school boards (see Education Law §3813[2]; Matter of Ramos v. Board of Educ. of the City of N.Y., 148 AD3d at 910).The purpose of the notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available (see Matter of Ramirez v. City of New York, 148 AD3d 908, 908; Vallejo-Bayas v. New York City Tr. Auth., 103 AD3d 881, 882).Here, the District had actual knowledge of the facts constituting the claim within the statutory period (see Kellman v. Hauppauge Union Free Sch. Dist., 120 AD3d 634, 635-636; Claud v. West Babylon Union Free Sch. Dist., 110 AD3d 663, 664; Matter of Viola v. Ronkonkoma Middle Sch., 107 AD3d 1009, 1010; Matter of Funkhouser v. Middle Country Cent. Sch. Dist., 102 AD3d 689, 690; Matter of Whittaker v. New York City Bd. of Educ., 71 AD3d 776, 777). Furthermore, the petitioners made an initial showing that the District would not suffer any substantial prejudice by the delay, and the District failed to rebut the petitioners’ showing with particularized indicia of prejudice (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 466-467; Matter of Viola v. Ronkonkoma Middle Sch., 107 AD3d at 1010; Matter of Joy v. County of Suffolk, 89 AD3d 1025, 1026-1027). Even if the petitioners’ reason for failing to timely serve the District was not reasonable, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and the absence of prejudice (see Matter of Viola v. Ronkonkoma Middle Sch., 107 AD3d at 1010; Matter of McLeod v. City of New York, 105 AD3d 744, 746; Matter of Lavender v. Garden City Union Free School Dist., 93 AD3d 670, 671).The District’s remaining contention is improperly raised for the first time on appeal.Accordingly, the Supreme Court providently exercised its discretion in granting the petition for leave to serve a late notice of claim.DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Balkin, J.P.; Chambers, Austin and Lasalle, JJ.Eva Seegers res, v. Village of Mineola, ap — (Index No. 604776/14)In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered March 11, 2016. The order denied the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff Eva Seegers (hereinafter Seegers) allegedly was injured when she slipped and fell on ice in a parking lot owned, operated, and maintained by the defendant, Village of Mineola. After Seegers, and her husband suing derivatively, commenced this action, the Village moved for summary judgment dismissing the complaint on the grounds that it did not receive prior written notice of the ice condition on which Seegers allegedly fell, and it did not create the condition. The Supreme Court denied the motion. The Village appeals.A municipality that has enacted a prior written notice provision “may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies” (Palka v. Village of Ossining, 120 AD3d 641, 641; see Poirier v. City of Schenectady, 85 NY2d 310, 313; Piazza v. Volpe, 153 AD3d 563, 564; Larenas v. Incorporate Vil. of Garden City, 143 AD3d 777, 778; Braver v. Village of Cedarhurst, 94 AD3d 933, 934). Two exceptions to the prior written notice requirement have been recognized, “namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” (Amabile v. City of Buffalo, 93 NY2d 471, 474 [citation omitted]; see Loghry v. Village of Scarsdale, 149 AD3d 714, 715; Larenas v. Incorporated Vil. of Garden City, 143 AD3d at 778; Braver v. Village of Cedarhurst, 94 AD3d at 934).“‘[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings’” (Loghry v. Village of Scarsdale, 149 AD3d at 715, quoting Foster v. Herbert Slepoy Corp., 76 AD3d 210, 214; see Piazza v. Volpe, 153 AD3d at 564; Larenas v. Incorporated Vil. of Garden City, 143 AD3d at 778; McManus v. Klein, 136 AD3d 700, 701; Steins v. Incorporated Vil. of Garden City, 127 AD3d 957, 958; Braver v. Village of Cedarhurst, 94 AD3d at 934). In the complaint and bill of particulars, the plaintiffs alleged that the Village created the ice condition on which Seegers fell by plowing snow into large piles directly adjacent to parking areas and walkways, thereby blocking drains and allowing the snow to thaw and refreeze, and by failing to properly salt or sand the area (see generally San Marco v. Village/Town of Mount Kisco, 16 NY3d 111). Accordingly, the Village was required to demonstrate both that it did not have prior written notice of the ice condition in the subject parking lot and that it did not create that condition (see Piazza v. Volpe, 153 AD3d at 564; Loghry v. Village of Scarsdale, 149 AD3d at 715; Larenas v. Incorporated Vil. of Garden City, 143 AD3d at 778; McManus v. Klein, 136 AD3d at 701; Steins v. Incorporated Vil. of Garden City, 127 AD3d at 958; Braver v. Village of Cedarhurst, 94 AD3d at 934).Although the Village demonstrated that it did not receive written notice of an ice condition in the subject parking lot prior to the accident, it failed to demonstrate, prima facie, that it did not create the ice condition that allegedly caused Seegers to fall (see Larenas v. Incorporated Vil. of Garden City, 143 AD3d at 778; McManus v. Klein, 136 AD3d at 701; Steins v. Incorporated Vil. of Garden City, 127 AD3d at 958; Braver v. Village of Cedarhurst, 94 AD3d at 934). The Village, therefore, failed to demonstrate its prima facie entitlement to judgment as a matter of law (see Larenas v. Incorporated Vil. of Garden City, 143 AD3d at 778; McManus v. Klein, 136 AD3d at 701; Steins v. Incorporated Vil. of Garden City, 127 AD3d at 958; Braver v. Village of Cedarhurst, 94 AD3d at 934).Accordingly, the Supreme Court properly denied the Village’s motion for summary judgment dismissing the complaint, regardless of the sufficiency of the papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).BALKIN, J.P., CHAMBERS, AUSTIN and LASALLE, JJ., concur.By Rivera, J.P.; Duffy, Barros and Iannacci, JJ.Union Street Tower, LLC, ap, v. First American Title Company, etc., def, East Coast Abstract, Inc., res — (Index No. 502087/13)In an action to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated November 19, 2015. The order, insofar as appealed from, granted those branches of the motion of the defendant East Coast Abstract, Inc., which were pursuant to CPLR 3211(a) to dismiss the first, second, and third causes of action in the amended complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.On March 7, 2003, the plaintiff entered into a purchase agreement to acquire a fee interest in certain property located at 225 Fourth Avenue in Brooklyn, as well as certain “development rights” in a contiguous parcel located at 227 Fourth Avenue, Brooklyn. In April 2013, more than 10 years later, the plaintiff commenced this action against the defendant First American Title Company (hereinafter First American), which issued a title insurance policy to the plaintiff, and against the defendant East Coast Abstract, Inc. (hereinafter East Coast), an agent of First American.In July 2013, the plaintiff amended the complaint. In the first cause of action in the amended complaint, the plaintiff alleged, inter alia, that East Coast was negligent in failing to record certain documents which related to “air rights.” In the second cause of action in the amended complaint, the plaintiff alleged, among other things, that East Coast was negligent in failing to procure proper title insurance. In the third cause of action in the amended complaint, the plaintiff sought to recover damages based upon East Coast’s alleged breach of an oral contract.The Supreme Court, inter alia, granted those branches of East Coast’s motion which were pursuant to CPLR 3211(a)(1) and (5) to dismiss the first, second, and third causes of action in the amended complaint insofar as asserted against it. The plaintiff appeals.We agree with the Supreme Court’s determination granting those branches of East Coast’s motion which were pursuant to CPLR 3211(a)(5) to dismiss the first and second causes of action in the amended complaint insofar as asserted against it. ”A tort claim accrues as soon as ‘the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint’” (IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140, quoting Kronos, Inc. v. AVX Corp., 81 NY2d 90, 94). Here, those causes of action accrued in 2003. The plaintiff commenced this action in 2013. Accordingly, those causes of action are time-barred (see CPLR 214[4]).We agree with the Supreme Court’s determination granting that branch of East Coast’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the plaintiff’s third cause of action in the amended complaint, which alleged a breach of an oral contract. A motion made pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence “may be appropriately 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 Leon v. Martinez, 84 NY2d 83, 87). Here, the subject title insurance policy contained a merger clause stating that the policy “is the entire policy and contract between the insured and the Company.” This clause barred the plaintiff’s claim of an oral agreement by East Coast (see Denenberg v. Schaeffer, 137 AD3d 1197, 1198; Ashwood Capital, Inc. v. OTG Mgt., Inc., 99 AD3d 1, 9). Accordingly, the documentary evidence conclusively established, as a matter of law, a defense to the third cause of action (see CPLR 3211[a][1]).RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.By Scheinkman, P.J.; Dillon, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Ramon Gonzalez Vasquez, ap — (Ind. No. 10070/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne M. Mondo, J.), rendered December 17, 2015, convicting him of endangering the welfare of a child, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and a new trial is ordered.The defendant was indicted for, inter alia, endangering the welfare of a child under count six of the indictment. In connection with that count, the indictment alleged that the defendant, then 24 years old, subjected the then 14-year-old complainant to sexual contact by touching his penis to her vagina, by touching his penis to her anus, by touching his mouth to her breasts, and/or by touching his hand to her breasts and/or vagina. During the jury trial, the complainant testified as to the alleged sexual conduct of the defendant, as charged in other counts of the indictment, which included engaging in vaginal and anal intercourse with the complainant. Evidence was also adduced from the complainant and another eyewitness, and from the defendant’s admissions, that he kissed the complainant.In summation, the People argued, over objection, that the defendant’s guilt of endangering the welfare of a child was established by the conduct of kissing the complainant. The Supreme Court then instructed the jury, over objection, that in order to find the defendant guilty of endangering the welfare of a child under the relevant count, the jurors were required to find that the defendant knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of the complainant, a child less than 17 years old, by engaging in sexual contact with her, defined, under the general definition in the Penal Law, as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law §130.00[3]). The jury returned a verdict of guilty on that count, and acquitted the defendant of the other counts submitted to it, which charged the defendant, inter alia, with engaging in vaginal and anal intercourse with the complainant.Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories (see People v. Grega, 72 NY2d 489, 496; People v. Barnes, 50 NY2d 375, 379 n 3; People v. Graves, 136 AD3d 1347, 1348). Here, the defendant was convicted of endangering the welfare of a child under a count of the indictment that limited the People to a particular theory or theories of endangering the welfare of a child. Therefore, the Supreme Court erred when it permitted the jury to consider a theory not charged in the indictment—that kissing endangered the complainant’s welfare (see People v. Grega, 72 NY2d at 496; People v. Barnes, 50 NY2d at 379 n 3; People v. Graves, 136 AD3d at 1348). Since the defendant’s conviction may have been based upon an uncharged theory, the judgment of conviction must be reversed and a new trial ordered.The defendant’s remaining contentions are without merit or need not be addressed in light of our determination.SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.‌The People, etc., respondent,v Ramon Gonzalez Vasquez, appellant.(Ind. No. 10070/13) ‌Motion by the appellant, inter alia, to strike stated portions of the respondent’s brief on an appeal from a judgment of the Supreme Court, Kings County, rendered December 17, 2015, on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated September 15, 2017, the branch of the motion which is to strike stated portions of the respondent’s brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the branch of the motion which is to strike stated portions of the respondent’s brief is granted, and those portions of the respondent’s brief that refer to and rely on the grand jury minutes are deemed stricken and have not been considered on the appeal (see People v. Broughton, 40 AD3d 1007, 1008; cf. People v. Sinha, 84 AD3d 35, 45 n, affd 19 NY3d 932).SCHEINKMAN, P.J., DILLON, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Iannacci, JJ.Joseph McDonald, Jr., etc. res, v. Ottavio Savo ap — (Index No. 101760/05)Howard M. File, Esq., P.C., Staten Island, NY, for appellants.Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., New York, NY (Seth R. Goldman and John S. McMahon III of counsel), for respondent Joseph McDonald, Jr.In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an amended judgment of the Supreme Court, Richmond County (Philip G. Minardo, J.), entered January 14, 2016. The amended judgment, after a nonjury trial, is in favor of the plaintiffs and against the defendants in the total sum of $524,953.42.ORDERED that the amended judgment is affirmed, with costs.The defendants’ contention that this action is barred by the statute of limitations was resolved on a prior appeal in this case (see Da Silva v. Savo, 35 AD3d 647). The issue of the amount of damages to be awarded also was resolved on a prior appeal (see Da Silva v. Savo, 97 AD3d 525). An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court (see Matter of Doman, 150 AD3d 994; Congel v. Malfitano, 141 AD3d 64, 70, mod__NY3d__, 2018 NY Slip Op 02119 [2018]).The defendants’ remaining contentions are without merit or were rendered academic after trial.SCHEINKMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.