Hand Down List decided on: April 4, 2018

By Balkin, J.P.; Chambers, Duffy and Lasalle, JJ.MATTER of Robert T. Barnard, ap, v. Sandi Loren Zelniker, res — (Docket No. F-14294-10)Appeal by the father from an order of the Family Court, Westchester County (Rachel Hahn, J.), entered April 5, 2017. The order denied the father’s objections to an order of that court (Esther R. Furman, S.M.), entered January 4, 2017, which, inter alia, dismissed his petition to terminate his child support obligation.ORDERED that the order entered April 5, 2017, is affirmed, without costs or disbursements.The father and the mother were married and had two children. The parties separated and entered into two so-ordered stipulations which, together, set forth the parties’ agreement with respect to, inter alia, custody, visitation, and child support. Thereafter, the parties were divorced by judgment dated November 15, 2006. The stipulations were incorporated but not merged into the judgment of divorce. In July 2016, the father filed a petition to terminate his child support obligations based upon constructive emancipation of the children. The mother moved, among other things, to dismiss the petition, and, in an order entered January 4, 2017, the Support Magistrate granted that branch of the motion. The father filed objections to the Support Magistrate’s order dismissing his petition and, in an order entered April 5, 2017, the Family Court denied the objections. The father appeals.We substantially agree with the reasoning of the Family Court [Here, under the circumstances of this case, the Family Court properly denied the father's objections to the Support Magistrate's determination] (see Merl v. Merl, 67 NY2d 359, 362; see also Matter of Field v. Field, 67 AD3d 1012, 1012).BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Joseph Williams, ap — (Ind. No. 14-00563)Bruce A. Petitio, Poughkeepsie, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold and Elizabeth L. Schulz of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J.), rendered June 2, 2015, convicting him of criminal possession of a weapon in the third degree and menacing in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.ORDERED that the judgment is affirmed.The County Court properly denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. Police officers responded to the defendant’s home, which he shared with the complainant, upon two 911 calls by the complainant indicating that the defendant had threatened to kill her while wielding a knife. Under the circumstances, the police had reasonable suspicion to believe that a crime had been committed (see People v. Garcia, 20 NY3d 317, 324; People v. Chestnut, 51 NY2d 14; People v. Dewese, 21 AD3d 426), justifying a brief investigative detention of the defendant, during which he was asked where the knife was located.Further, the County Court properly denied that branch the defendant’s omnibus motion which was to suppress physical evidence recovered from his bedroom. The police officers entered the defendant’s bedroom, which he shared with the complainant, upon the complainant’s consent (see Schneckloth v. Bustamonte, 412 US 218, 219; People v. Cosme, 48 NY2d 286, 290-292; People v. Watson, 101 AD3d 913; People v. Madill, 26 AD3d 811).The defendant’s contention that the police lacked probable cause to arrest him is unpreserved for appellate review (see CPL 470.05[2]). In any event, the record demonstrates that the police had probable cause to arrest the defendant (see People v. Bellow, 255 AD2d 450; People v. Haynes, 251 AD2d 595).Contrary to the defendant’s contention, the County Court properly admitted evidence of his prior acts of domestic violence against the complainant as probative of the nature of the relationship between him and the complainant and probative of his motive and intent to menace the complainant (see People v. Charles, 121 AD3d 802; People v. Sanchez, 73 AD3d 1093; People v. Sanchez, 54 AD3d 638; People v. Gorham, 17 AD3d 858). Moreover, the probative value of the evidence outweighed the risk of prejudice to the defendant, particularly considering the court’s limiting instruction to the jury, which served to alleviate any prejudice resulting from the admission of the evidence (see People v. Beer, 146 AD3d 895; People v. Charles, 121 AD3d at 803; People v. Holden, 82 AD3d 1007). In addition, the prosecutor did not elicit evidence that exceeded the scope of the court’s Molineux ruling (see People v. Molineux, 168 NY 264; People v. Echavarria, 53 AD3d 859).The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his convictions of criminal possession of a weapon in the third degree and menacing in the second degree (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilty was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Deutsche Bank National Trust Company, etc., res, v. Leartis Morris, Jr., appellant def — (Index No. 11316/10)In an action to foreclose a mortgage, the defendant Leartis Morris, Jr., appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated March 2, 2015, as denied that branch of his motion which was pursuant to CPLR 5015(a)(2) to vacate a judgment of foreclosure and sale entered by the same court on February 18, 2014, based on newly discovered evidence.ORDERED that the order is affirmed insofar as appealed from, with costs.On April 27, 2010, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Leartis Morris, Jr. The plaintiff thereafter moved, inter alia, for summary judgment on the complaint. Morris, who appeared pro se, opposed that branch of the plaintiff’s motion on the grounds that the plaintiff lacked standing to commence the action and that the Supreme Court lacked subject matter jurisdiction. The court granted the plaintiff’s motion. Subsequently, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. Morris opposed that branch of the plaintiff’s motion on the same grounds—that the plaintiff lacked standing to commence the action and that the court lacked subject matter jurisdiction. The court granted the plaintiff’s motion, and a judgment of foreclosure and sale was entered on February 18, 2014.Thereafter, on September 12, 2014, Morris moved, inter alia, to vacate the judgment of foreclosure and sale, reiterating the same arguments, i.e., that the plaintiff lacked standing to commence the action and that the Supreme Court lacked subject matter jurisdiction. On December 1, 2014, the day before the court issued an order denying Morris’s motion to vacate the judgment of foreclosure and sale, Morris submitted an “amended motion,” inter alia, pursuant to CPLR 5015(a)(2) to vacate the judgment of foreclosure and sale based on newly discovered evidence, arguing again that the plaintiff lacked standing and that the court lacked subject matter jurisdiction. The court, among other things, denied that branch of the amended motion. Morris appeals.Morris failed to demonstrate his entitlement to relief pursuant to CPLR 5015(a)(2) based upon newly discovered evidence. The purportedly newly discovered evidence was not newly discovered, as it had been proffered with Morris’s prior motion to vacate the judgment of foreclosure and sale. Moreover, Morris failed to establish that this purportedly newly discovered evidence could not have been discovered earlier, prior to the entry of the judgment of foreclosure and sale, through the exercise of due diligence (see Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 AD3d 1088, 1089; Sieger v. Sieger, 51 AD3d 1004, 1005; Matter of State Farm Ins. Co. v. Colangelo, 44 AD3d 868).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Dillon, Maltese and Lasalle, JJ.PEOPLE, etc., res, v. Kevin Griffin, ap — (Ind. No. 04-00328)Kevin Griffin, Dannemora, NY, appellant pro se.David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated April 11, 2006 (People v. Griffin, 28 AD3d 578), affirming a judgment of the County Court, Orange County, rendered November 22, 2004.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Daneel Edwards, ap — (Ind. No. 3077/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered August 20, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant failed to preserve for appellate review his contention that the People failed to disprove the defense of justification (see CPL 470.05[2]; People v. Simpson, 151 AD3d 762, 762). In any event, the evidence, when viewed in the light most favorable to the prosecution, was legally sufficient to disprove the defendant’s justification defense beyond a reasonable doubt (see People v. Martinez-Ramos, 135 AD3d 965, 965-966; People v. Candelaria, 206 AD2d 385, 385-386; People v. Fousse, 167 AD2d 416). The People also adduced legally sufficient evidence that the defendant intended to cause the death of another person (see People v. Moore, 118 AD3d 916, 917; People v. Townsend, 83 AD3d 969, 970; People v. Smith, 35 AD3d 635; People v. Jones, 309 AD2d 819, 820). Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the count of murder in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The defendant contends that the Supreme Court deprived him of a fair trial by failing to provide the jury with a complete charge on the defense of justification because the charge as given did not include language advising the jury how to assess the victim’s reputation, prior convictions, and his threats against the defendant. This contention is unpreserved for appellate review, since the defendant failed to request that the charge include such additional language or object to the charge as given (see CPL 470.05[2]; People v. Stewart, 71 AD3d 797, 798; People v. Soto, 31 AD3d 793, 793). In any event, the contention is without merit, since the court fairly and accurately described the applicalbe law (see People v. Brunson, 1 AD3d 375; People v. Muhammed, 303 AD2d 424, 424).The defendant also contends that the Supreme Court erred in refusing to submit the charge of manslaughter in the second degree to the jury as a lesser included offense of murder in the second degree. However, that challenge is foreclosed, since the lesser-included offense of manslaughter in the first degree was submitted to the jury and the jury implicitly rejected that lesser-included offense, as evidenced by its verdict convicting the defendant of the highest count of the indictment, murder in the second degree (see People v. Boettcher, 69 NY2d 174, 180; People v. Richette, 33 NY2d 42, 45-46; People v. Hira, 100 AD3d 922, 923; People v. Beriguete, 51 AD3d 939, 939-940; People v. Powers, 231 AD2d 744, 744; People v. Vega, 155 AD2d 632, 633; see also People v. McGeachy, 74 AD3d 989, 989).The defendant’s contentions, raised in his pro se supplemental brief, regarding the admission into evidence of People’s exhibit 49 and whether the jury was timely sworn in accordance with CPL 270.05, are unpreserved for appellate review and, in any event, without merit. Moreover, contrary to the defendant’s contention, he was not deprived of the effective assistance of trial counsel (see People v. Flowers, 28 NY3d 536, 541).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.The Hutton Group, Inc., res, v. Cameo Owners Corp., ap — (Index No. 71005/14)In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated August 11, 2015, as denied those branches of its motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff and the defendant, a corporation that owned a property located in Queens consisting of cooperative housing units, entered into an agreement. Pursuant to that agreement, the defendant engaged the plaintiff to convert the defendant’s property from a cooperative to a condominium form of ownership. Thereafter, the plaintiff commenced this action against the defendant, alleging, inter alia, that the defendant breached the agreement. The defendant moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court, inter alia, denied those branches of the defendant’s motion, and the defendant appeals.The Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint based upon documentary evidence. ”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). Here, the evidence that the defendant submitted in support of its motion did not utterly refute the plaintiff’s factual allegations so as to conclusively establish a defense as a matter of law.Further, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. ”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). ”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). Here, the defendant’s proffered evidence failed to establish that a material fact as claimed by the plaintiff was not a fact at all and that no significant dispute exists regarding it.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Xiao Yan Chen ap, v. Maimonides Medical Center respondents def — (Index No. 5065/10)In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Michelle Weston, J.), entered February 27, 2015, which, upon a jury verdict, is in favor of the defendants Maimonides Medical Center and Lim H. Tse and against them dismissing the complaint.ORDERED that the judgment is affirmed, with costs.On October 12, 2009, the plaintiff Xiao Yan Chen consulted with the defendant Lim H. Tse, a physician, to determine whether she was pregnant. Tse confirmed that Chen was six weeks and six days pregnant and performed a transvaginal ultrasound, which revealed that there was no fetus in Chen’s uterus. During her examination, Tse felt a right adnexal fullness. Fearing that Chen had an ectopic pregnancy (that is, a pregnancy in which the embryo attaches outside of the uterus), Tse referred Chen to the emergency room of the defendant Maimonides Medical Center (hereinafter Maimonides).After Chen arrived at Maimonides, another ultrasound was performed. The ultrasound showed no visible intrauterine pregnancy, but it did show a cystic structure in the area of the right fallopian tube and ovary. Chen underwent laparoscopy, but an ectopic pregnancy was not seen in the fallopian tube.On October 13, 2009, Tse and another doctor recommended that Chen receive an injection of Methotrexate, since there was still a concern that the pregnancy was ectopic. Later that day, Chen agreed to have the injection.During a follow up visit on October 17, 2009, a transvaginal ultrasound showed a very small, empty gestational sac in Chen’s uterus. On October 22, 2009, Chen underwent a dilation and curettage at Beth Israel Medical Center.Thereafter, Chen and her husband, suing derivatively, commenced this action against, among others, Tse and Maimonides (hereinafter together the defendants), alleging that they misdiagnosed Chen with an ectopic pregnancy and administered Methotrexate, which aborted the pregnancy. The action against a third defendant was discontinued by stipulation dated May 24, 2011.After a trial, the jury found that neither Maimonides nor Tse departed from accepted standards of medical care by recommending the administration of Methotrexate. Judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint, and the plaintiffs appeal, arguing that they were deprived of a fair trial based on the conduct of the trial court.Contrary to the plaintiffs’ contention, the trial court’s conduct in reprimanding the plaintiffs’ attorney and holding him in contempt for his behavior during trial did not demonstrate bias against counsel (see Hoey v. Rawlings, 51 AD3d 868, 868-869). Furthermore, the court did not unduly interfere with the presentation of the case or indicate any partiality or bias (see Bielicki v. T.J. Bentey, Inc., 267 AD2d 266, 267; Givens v. Sinert, 243 AD2d 443, 443-444). A trial court has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings, and admonish counsel and witnesses when necessary (see Campbell v. Rogers & Wells, 218 AD2d 576, 579). Here, the contested comments and rulings by the court were precipitated by the unprofessional, boorish, and, at times contemptuous conduct of the plaintiffs’ attorney (see Hoey v. Rawlings, 51 AD3d at 869), were an appropriate attempt to clarify the testimony and facilitate the progress of the trial (see McGuire v. McGuire, 93 AD3d 701, 703-704; Bielicki v. T.J. Bentey, Inc., 267 AD2d at 267), or occurred outside the presence of the jury. Thus, the comments and rulings either did not prejudice the plaintiffs’ case (see Givens v. Sinert, 243 AD2d at 444) or were not sufficiently prejudicial or pervasive to deprive the plaintiffs of a fair trial (see Coque v. Wildflower Estates Devs., Inc., 58 AD3d 44, 56).The plaintiffs’ remaining contentions are without merit.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Gerald G. Wright, ap, v. Gerald Gardner Wright, P.C., def; 2701 Associates, LLC, intervenor-res — (Index No. 7347/13)Appeal by the plaintiff from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), entered October 28, 2014. The order, inter alia, granted the motion of the intervenor to confirm a referee’s report dated September 9, 2014, and to vacate a judgment by confession filed in the Nassau County Clerk’s office on June 21, 2013, which was in favor of the plaintiff and against the defendant in the total sum of $494,943.54.ORDERED that the order is affirmed, with costs.This appeal concerns the validity of a judgment by confession in favor of the plaintiff and against the defendant. The plaintiff is the sole shareholder of the defendant. The intervenor is the defendant’s former landlord. During a trial between the defendant and the intervenor in a separate action, among other things, to recover unpaid rent, the plaintiff obtained from the defendant an affidavit of confession of judgment, which he then filed in the Nassau County Clerk’s Office. The affidavit of confession of judgment stated, inter alia, that “[f]rom 2004 to the present, I have lent the Corporation the sum of $482,048.74, in order to provide it with necessary working capital to continue its business operations and pay its bills on a day to day basis.”The intervenor moved to vacate the judgment by confession on the grounds that the affidavit of confession of judgment did not comply with the requirements of CPLR 3218, and that the judgment by confession had been obtained by fraud. In February 2014, approximately eight months after the judgment by confession was filed, the defendant filed a supplemental affidavit of confession of judgment. A hearing was held, inter alia, on the issue of whether the judgment by confession was the product of fraud. At the conclusion of the hearing, the referee recommended, among other things, that the judgment by confession be vacated. The intervenor moved, inter alia, to confirm the referee’s report and to vacate the judgment by confession. The Supreme Court, among other things, granted the motion, and the plaintiff appeals.Contrary to the plaintiff’s contention, the original affidavit of confession of judgment failed to set forth the underlying facts in sufficient detail to meet the requirements of CPLR 3218 (see County Natl. Bank v. Vogt, 21 NY2d 800, 801; Wood v. Mitchell, 117 NY 439, 441-442; Rubashkin v. Rubashkin, 98 AD3d 1018; Eurofactors Int’l, Inc. v. Jacobowitz, 21 AD3d 443, 445). Furthermore, the supplemental affidavit could not be considered to cure the deficiency (see Cole-Hatchard v. Nicholson, 73 AD3d 834, 836; Baehre v. Rochester Dental Prosthetics, 112 Misc 2d 270, 276 [Sup Ct, Erie County]).Also contrary to the plaintiff’s contention, the intervenor submitted clear, positive, and satisfactory evidence of fraud requiring that the judgment by confession be vacated (cf. Scialo v. Sheridan Elec., Ltd, 153 AD3d 1294; Rubenfeld v. Gambino, 213 AD2d 709, 710; Giryluk v. Giryluk, 30 AD2d 22, 23, affd 23 NY2d 894).The plaintiff was not prejudiced by the referee’s refusal to consider certain documents since the plaintiff was allowed to testify at the hearing as to the content of those documents.Accordingly, the Supreme Court properly granted the intervenor’s motion to confirm the referee’s report and to vacate the judgment by confession.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.Albert Davydov, ap, v. Board of Managers of the Forestal Condominium res — (Index No. 5263/15)Appeal by the plaintiff from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered February 7, 2017. The order, insofar as appealed from, granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action for the abatement of monthly common charges paid to the defendant Board of Managers of the Forestal Condominium based upon a breach of its obligations owed to the plaintiff under its by-laws, and denied that branch of the plaintiff’s motion which was for leave to amend the complaint to add a demand for interest on those common charges at a rate of two percent compounded monthly.ORDERED that the appeal from so much of the order as granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action for the abatement of monthly common charges paid to the defendant Board of Managers of the Forestal Condominium based upon a breach of its obligations owed to the plaintiff under its bylaws is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144); and it is further,ORDERED that the order is affirmed insofar as reviewed; and it is further,ORDERED that one bill of coss is awarded to the defendants.In 2004, the plaintiff purchased two units in the Forestal Condominium (hereinafter Forestal). After purchasing the units, the plaintiff began to detect foul odors in both units and discovered water leaks. In addition, the plaintiff determined that gas was not being provided to either unit and heat was not being provided to one of the units, despite the fact that Forestal’s bylaws required the defendant Board of Managers of the Forestal Condominium (hereinafter the Board) to operate, repair, maintain, or replace the heating throughout the building. During this time, the plaintiff continued paying the common charges owed on both units.The plaintiff made complaints to the Board and provided it and the defendant Michael Lago, Forestal’s managing agent, with copies of reports prepared by experts he retained to determine the cause of the various issues with his units. However, the defendants failed to address the plaintiff’s complaints, and the plaintiff commenced this action, inter alia, to recover damages for violations of Forestal’s offering plan, the Multiple Dwelling Law, and various New York City Building Codes.The plaintiff moved for leave to amend the complaint, which was granted by the Supreme Court in an order dated May 11, 2016. Thereafter, the plaintiff moved for leave to amend the complaint a second time. In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for leave to add a cause of action for the abatement of monthly common charges paid to the Board based upon a breach of its obligations owed to the plaintiff under its bylaws and denied that branch of his motion which was for leave to amend the complaint to add a demand for interest on those common charges at a rate of two percent compounded monthly. The plaintiff appeals from these portions of the order.The plaintiff’s appeal from so much of the order as granted that branch of his motion which was for leave to amend the complaint to add a cause of action for the abatement of common charges must be dismissed on the ground that the plaintiff is not aggrieved by that part of the order which was in his favor (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144).The Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to add a demand for interest on his cause of action for the abatement of common charges at a rate of two percent compounded monthly. “Although leave to amend should be freely granted in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit” (Strunk v. Paterson, 145 AD3d 700, 701; see Capezzano Constr. Corp. v. Weinberger, 150 AD3d 811, 811; Jablonski v. Jakaitis, 85 AD3d 969, 971). ”Whether to grant such leave is within the motion court’s discretion, the exercise of which will not be lightly disturbed” (Pergament v. Roach, 41 AD3d 569, 572; see J.W. Mays, Inc. v. Liberty Mut. Ins. Co., 153 AD3d 1386, 1387; Epstein v. Fried, 150 AD3d 691, 693). Here, the proposed amendment with respect to the requested rate of interest related to the cause of action for the abatement of common charges based upon a breach of contract theory was palpably insufficient and patently devoid of merit where no statute or agreement between the parties provides for the recovery of interest at that rate as opposed to the rate allowed by the CPLR (see CPLR 5001[a]; 5004; Luna Light., Inc. v. Just Indus., Inc., 137 AD3d 1228, 1230).The plaintiff’s remaining contention is without merit.RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Power Up Lending Group, Ltd., ap, v. Cardinal Resources, Inc. def — (Index No. 601388/16)In an action, inter alia, to recover damages for breach of two loan agreements, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered August 16, 2016, which granted its unopposed motion pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendants in the amount of $66,264.90 only to the extent of directing the entry of a judgment in the amount of $17,349.90, and (2), as limited by its brief, from so much of an order of the same court entered November 22, 2016, as, upon reargument, adhered to the original determination.ORDERED that the appeal from the order entered August 16, 2016, is dismissed, without costs or disbursements, as that order was superseded by the order entered November 22, 2016, made upon reargument; and it is further,ORDERED that the order entered November 22, 2016, is reversed insofar as appealed from, on the law, without costs or disbursements, upon reargument, the order entered August 16, 2016, is vacated, and the plaintiff’s unopposed motion pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendants in the amount of $66,264.90 is granted in its entirety.The plaintiff commenced this action on March 2, 2016, inter alia, to recover damages for breach of two loan agreements. The plaintiff alleged that the defendants defaulted on both loans on February 16, 2016, and that the total balance owed pursuant to both agreements was $66,264.90. The defendants did not appear in the action or interpose an answer, and the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against them in the amount of $66,264.90. The defendants did not oppose the motion.By order entered August 16, 2016, the Supreme Court determined that certain provisions of both agreements were illegal under the criminal usury statute, and severed those provisions of the agreements. The court then calculated the amount that was owed to the plaintiff after severing those provisions of the agreements, and granted the plaintiff’s motion only to the extent of directing the entry of a judgment in the amount of $17,349.90.The plaintiff moved for leave to reargue its motion for leave to enter a default judgment against the defendants in the amount of $66,264.90. By order entered November 22, 2016, the court granted reargument and, upon reargument, adhered to its original determination. We reverse the order entered November 22, 2016, insofar as appealed from.Pursuant to CPLR 3215, a plaintiff may seek a default judgment against a defendant who fails to appear or answer (see CPLR 3215; U.S. Bank, N.A. v. Razon, 115 AD3d 739, 740). A plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant’s failure to answer or appear (see CPLR 3215[f]; Allstate Prop. & Cas. Ins. Co. v. Carrier, 147 AD3d 889, 890; Todd v. Green, 122 AD3d 831, 832; U.S. Bank N.A. v. Poku, 118 AD3d 980; U.S. Bank N.A. v. Razon, 115 AD3d at 740; Cruz v. Keter Residence, LLC, 115 AD3d 700; C&H Import & Export, Inc. v. MNA Global, Inc., 79 AD3d 784).Here, the plaintiff, by its submissions, met all of these requirements and, thus, demonstrated its entitlement to a default judgment against the defendants in the amount of $66,264.90 (see Todd v. Green, 122 AD3d at 832; Oak Hollow Nursing Ctr. v. Stumbo, 117 AD3d 698, 699). The Supreme Court erred when it severed those provisions of the agreements which it found to be illegal pursuant to the criminal usury statute. Usury is an affirmative defense which a defendant must either assert in an answer or as a ground to move to dismiss the complaint pursuant to CPLR 3211. Otherwise, the defense is waived (see CPLR 3211[e]; 3018[b]; Whittemore v. Yeo, 112 AD3d 475, 476; Hochman v. LaRea, 14 AD3d 653, 654).In light of our determination, the plaintiff’s remaining contention has been rendered academic.Accordingly, the Supreme Court should have, upon reargument, granted the plaintiff’s unopposed motion which was for leave to enter a default judgment against the defendants in the amount of $66,264.90 in its entirety.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Roman, Barros and Christopher, JJ.PEOPLE, etc., res, v. Albert R. Hicks, ap — (Ind. No. 3364-07)Albert Hicks, named herein as Albert R. Hicks, Dannemora, NY, appellant pro se.Timothy D. Sini, District Attorney, Riverhead, NY (Glenn Green of counsel), for respondent.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated October 11, 2011 (People v. Hicks, 88 AD3d 817), affirming a judgment of the County Court, Suffolk County, rendered May 13, 2009ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.PEOPLE, etc., res, v. Quindell Hill, ap — (Ind. No. 2712/14)Appeal by the defendant from a judgment of the Supreme Court, Queens County (Evelyn Braun, J.), rendered June 15, 2016, convicting him of promoting prostitution in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Tyrone McCalla, ap — (Ind. No. 1212/14)Bruce R. Bekritsky, Mineola, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher Quinn, J.), rendered January 5, 2016, convicting him of burglary in the second degree (three counts), grand larceny in the third degree, criminal mischief in the second degree, and criminal mischief in the fourth degree (two counts), upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the motion of Bruce R. Bekritsky for leave to withdraw as counsel is granted, and he is directed to turn over all papers in his possession to the appellant’s new counsel assigned herein; and it is further,ORDERED that Thomas R. Villecco, 366 North Broadway, Suite 410, Jericho, NY, 11753, is assigned as counsel to prosecute the appeal; and it is further,ORDERED that the respondent is directed to furnish a copy of the certified transcript of the proceedings to the appellant’s new assigned counsel; and it is further,ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated March 21, 2016, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers, including a certified transcript of the proceedings, and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.The brief submitted by the appellant’s counsel pursuant to Anders v. California (386 US 738) is deficient because it fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v. Rivera, 142 AD3d 512; People v. Parker, 135 AD3d 966, 968; People v. McNair, 110 AD3d 742, 743; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256). Assigned counsel failed to draw the Court’s attention to any “significant objections, applications, or motions” regarding the hearing on the defendant’s pretrial suppression motion (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258; see People v. Carlos, 126 AD3d 911, 912). Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v. California (386 US 738), we must assign new counsel to represent the appellant (see People v. Sedita, 113 AD3d 638, 639-640; People v. McNair, 110 AD3d 742; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258).Moreover, upon this Court’s independent review of the record, we conclude that nonfrivolous issues exist, including, but not necessarily limited to, whether the Supreme Court properly denied the defendant’s pretrial suppression motion (see People v. Carlos, 126 AD3d at 913; People v. Frazier, 124 AD3d 909, 910; People v. Hardman, 110 AD3d 917, 918), and whether the sentence imposed was excessive (see generally People v. Suitte, 90 AD2d 80).DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.County of Suffolk, res, v. Suburban Housing Development & Research, Inc., ap — (Index No. 12311/12)Raymond G. Keenan, Shirley, NY, for appellant.Dennis M. Brown, County Attorney, Hauppauge, NY (Elaine M. Barraga of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated November 12, 2015. The order, insofar as appealed from, denied that branch of the defendant’s motion which was for summary judgment dismissing so much of the complaint as sought to recover alleged overpayments made on or before April 18, 2006.ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendant’s motion which was for summary judgment dismissing so much of the first cause of action as sought to recover alleged overpayments made on or before July 1, 2004, and substituting therefor a provision granting that branch of the defendant’s motion, and (2) by deleting the provisions thereof denying those branches of the defendant’s motion which were for summary judgment dismissing so much of the second and third causes of action as sought to recover alleged overpayments made on or before April 18, 2006, and substituting therefor provisions granting those branches of the defendant’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.The County of Suffolk and Suburban Housing & Development Research, Inc. (hereinafter Suburban), entered into two agreements pursuant to which Suburban agreed to provide emergency housing services to homeless residents of Suffolk County. The first agreement was from July 1, 2002, through June 30, 2004, and provided the County with two one-year options to renew. The second agreement was from July 1, 2006, through June 30, 2010, and also provided the County with two one-year options to renew.Both agreements required Suburban to submit monthly claims for compensation, which the County was obligated to pay after approval by its comptroller. The agreements provided that all payments made under the agreements were “subject to audit by the Suffolk County Comptroller.” The agreements further provided: “[Suburban] shall maintain full and complete records of services… for a period of seven (7) years, which shall be available for audit and inspection by… the Suffolk County Comptroller.” The agreements stated that in the event “such an audit disclose[d] overpayments by the County to [Suburban],” Suburban “shall repay the amount of such overpayment” within 30 days after the issuance of the “official audit report.” The agreements further stated that the provisions requiring Suburban to repay the amounts of overpayment would “survive the expiration or termination” of the agreements.The County commenced this action on April 18, 2012, asserting three causes of action. The first cause of action sought to recover damages for breach of contract, alleging that the County issued an audit report on July 1, 2011, and that the report disclosed overpayments from the County to Suburban in the total sum of $884,798. These overpayments allegedly were made from August 1, 2003, through July 31, 2007. The first cause of action further alleged that, despite the County’s demand for repayment of the amount specified in the audit report, Suburban failed to make the requested repayment, thereby breaching the parties’ agreements and causing the County to sustain damages in the total sum of $884,798.The second cause of action sought to recover $884,798 under a theory of money had and received. The second cause of action specified that the sums to be recovered were paid from August 1, 2003, through July 31, 2007.The third cause of action sought to recover damages for fraud. As relevant here, the third cause of action alleged that Suburban made false representations to the County regarding “costs and expenses in its financial statements,” and that the “actual costs and expenses incurred” by Suburban “during the audit period were $884,798 less than [Suburban] stated.”After issue was joined, Suburban moved, inter alia, for summary judgment dismissing so much of the complaint as sought to recover alleged overpayments made on or before April 18, 2006. Suburban contended that all three causes of action were governed by six-year statutes of limitations, and that all three causes of action were untimely to the extent that they sought to recover overpayments that were allegedly made on or before April 18, 2006. In the order appealed from, the Supreme Court, among other things, denied that branch of Suburban’s motion.A cause of action to recover damages for breach of contract is governed by a six-year statute of limitations (see CPLR 203[a]). As a general principle, the statute of limitations begins to run when a cause of action accrues (see CPLR 203[a]), that is, “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court” (Aetna Life & Cas. Co. v. Nelson, 67 NY2d 169, 175; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 770). ”In contract cases, the cause of action accrues and the Statute of Limitations begins to run from the time of the breach” (John J. Kassner & Co. v. City of New York, 46 NY2d 544, 550; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d at 770; Ely-Cruikshank Co. v. Bank of Montreal, 81 NY2d 399, 402).Here, the agreements gave the County the right to audit any payments that it made to Suburban in connection with the agreements and Suburban agreed to maintain its “records of services” for seven years for that purpose. Suburban agreed to repay any overpayments disclosed in an official audit report issued by the comptroller within 30 days after the issuance of such a report. The complaint alleged that Suburban breached the agreements when it failed to repay the overpayments disclosed in the comptroller’s report within 30 days after that report was issued on July 1, 2011. Accordingly, contrary to the Supreme Court’s determination, the breach alleged in the complaint occurred on August 1, 2011, when Suburban allegedly failed to comply with the repayment provisions of the agreements (see generally Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d at 770; John J. Kassner & Co. v. City of New York, 46 NY2d at 550; Ely-Cruikshank Co. v. Bank of Montreal, 81 NY2d at 402). Since this action was commenced within six years of the alleged breach, the first cause of action is timely (see CPLR 203[a]).However, Suburban is correct that the agreements did not give the County the unlimited right to perform an audit at any time in the future, extending indefinitely. Rather, the provisions requiring Suburban to maintain its “records of services” for seven years to allow the County to audit the payments demonstrate that any such audit was required to occur within seven years of the provision of such services. Accordingly, contrary to the County’s contention, it had no contractual right to conduct an audit with respect to payments for services that were provided more than seven years prior to the issuance of the comptroller’s official audit report. As such, Suburban demonstrated, prima facie, its entitlement to judgment as a matter of law dismissing so much of the first cause of action as sought to recover alleged overpayments made on or before July 1, 2004. Since the County failed to raise a triable issue of fact in opposition to Suburban’s prima facie showing, the Supreme Court should have granted that branch of Suburban’s motion which was for summary judgment dismissing so much of the first cause of action as sought to recover alleged overpayments made on or before July 1, 2004 (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562).“A cause of action for money had and received is one of quasi-contract or of contract implied-in-law” (Board of Educ. of Cold Spring Harbor Cent. School Dist. v. Rettaliata, 78 NY2d 128, 138; see Parsa v. State of New York, 64 NY2d 143, 148). ”The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money” (Goel v. Ramachandran, 111 AD3d 783, 790; see Litvinoff v. Wright, 150 AD3d 714, 716). The statute of limitations applicable to a cause of action for money had and received is six years (see CPLR 213[2]; Matter of City of White Plains v. City of New York, 63 AD2d 396, 399).Here, the complaint alleged that Suburban received and benefitted from the overpayment amounts when those overpayments were made during the period specified in the audit report from August 1, 2003, through July 31, 2007. Suburban demonstrated, prima facie, its entitlement to judgment as a matter of law dismissing so much of the second cause of action as sought to recover alleged overpayments made more than six years prior to the commencement of this action (see CPLR 213[2]). In opposition, the County failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Suburban’s motion which was for summary judgment dismissing so much of the second cause of action as sought to recover alleged overpayments made on or before April 18, 2006 (see Alvarez v. Prospect Hosp., 68 NY2d at 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; Zuckerman v. City of New York, 49 NY2d at 562).“The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” (Introna v. Huntington Learning Ctrs., Inc., 78 AD3d 896, 898; see JP Morgan Chase Bank, N.A. v. Hall, 122 AD3d 576, 579). ”A cause of action based upon fraud must be commenced within six years after the commission of the fraud, or within two years after the date the fraud was discovered or could with reasonable diligence have been discovered” (Celestin v. Simpson, 153 AD3d 656, 657; see CPLR 213[8]; 203[g]).Here, the complaint alleged that Suburban made false representations to the County regarding costs and expenses in its financial statements during the audit period, which was from August 1, 2003, through July 31, 2007. Suburban demonstrated, prima facie, its entitlement to judgment as a matter of law dismissing so much of the third cause of action as sought to recover alleged overpayments made more than six years prior to the commencement of this action as a result of its alleged misrepresentations (see CPLR 213[8]; 203[g]). In opposition, the County failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Suburban’s motion which was for summary judgment dismissing so much of the third cause of action as sought to recover alleged overpayments made on or before April 18, 2006 (see Alvarez v. Prospect Hosp., 68 NY2d at 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; Zuckerman v. City of New York, 49 NY2d at 562).CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Concetta Trombetta, ap, v. G.P. Landscape Design, Inc., respondent def — (Index No. 20262/10)Appeal by the plaintiff from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated July 8, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendant G.P. Landscape Design, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is affirmed insofar as appealed from, with costs.On February 27, 2010, the plaintiff, an employee of the defendant McDonald’s Corporation (hereinafter McDonald’s), allegedly was injured when she slipped and fell on ice on a sidewalk outside a McDonald’s restaurant located in Medford. In June 2010, the plaintiff commenced this action to recover damages for personal injuries against McDonald’s and the defendant G.P. Landscape Design, Inc. (hereinafter G.P.), a contractor hired to perform snow removal services for McDonald’s. In her bill of particulars, the plaintiff alleged, among other things, that G.P. launched a force or instrument of harm in the performance of its snow removal services at the subject premises. In the order appealed from, the Supreme Court, inter alia, granted that branch of G.P.’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff appeals.“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” (Rudloff v. Woodland Pond Condominium Assn., 109 AD3d 810, 810; see Diaz v. Port Auth. of NY & NJ, 120 AD3d 611; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 AD3d 1102, 1103). However, there are certain exceptions to this rule (see Espinal v. Melville Snow Contrs., 98 NY2d 136, 140). As relevant here, a contractor may be liable in tort where it fails to exercise reasonable care in the performance of its duties, and thereby launches a force or instrument of harm (see id. at 140; Santos v. Deanco Servs., Inc., 142 AD3d 137, 141; Repetto v. Alblan Realty Corp., 97 AD3d 735, 736).“A snow removal contractor cannot be held liable for personal injuries ‘on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition’” (Somekh v. Valley Natl. Bank, 151 AD3d 783, 786, quoting Santos v. Deanco Servs., Inc., 142 AD3d at 138). ”[A] failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving” (Santos v. Deanco Servs., Inc., 142 AD3d at 143; see Somekh v. Valley Natl. Bank, 151 AD3d at 786).Here, G.P. established, prima facie, that it did not create or exacerbate the allegedly icy condition and, thus, launch a force or instrument of harm (see Koelling v. Central Gen. Community Servs., Inc., 132 AD3d 734, 736; Conte v. Servisair/Globeground, 63 AD3d 981, 981-982). In opposition, the plaintiff failed to raise a triable issue of fact through her contention that G.P. created or exacerbated the allegedly icy condition by failing to apply salt or sand. Even if G.P. failed to sand or salt the sidewalk where the plaintiff fell, the plaintiff has offered nothing more than speculation that the failure to perform that duty rendered the property less safe than it was before G.P. started its work (see Rudloff v. Woodland Pond Condominium Assn., 109 AD3d at 811; Foster v. Herbert Slepoy Corp., 76 AD3d 210, 215). The affidavit of the plaintiff’s expert was speculative and, therefore, insufficient to raise a triable issue of fact (see Koelling v. Central Gen. Community Servs., Inc., 132 AD3d at 737).Accordingly, the Supreme Court properly granted that branch of G.P.’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Jan Welenc res, v. Board of Directors of Polish and Slavic Federal Credit Union, ap — (Index No. 12933/13)Tseitlin & Glas, P.C., New York, NY (Eduardo J. Glas of counsel), for respondents.Appeals by the defendant from an amended order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated June 12, 2015, and an order of the same court dated February 24, 2016. The amended order dated June 12, 2015, insofar as appealed from, denied the defendant’s motion for summary judgment dismissing the complaint and, in effect, searched the record and awarded summary judgment to the plaintiffs on the complaint. The order dated February 24, 2016, insofar as appealed from, upon renewal and reargument, adhered to the original determination in the amended order dated June 12, 2015.ORDERED that the appeal from the amended order dated June 12, 2015, is dismissed, as that order was superseded by the order dated February 24, 2016, made upon renewal and reargument; and it is further,ORDERED that the order dated February 24, 2016, is affirmed insofar as appealed from; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs.In September 2012, a petition signed by more than 2,000 members of the Polish and Slavic Federal Credit Union (hereinafter the Credit Union) was submitted to the Board of Directors of the Credit Union (hereinafter the Board), requesting that the Board call and hold a special meeting of its membership to, inter alia, put to a vote a motion to remove certain individuals from the Board and an individual from the Supervisory Committee. In October 2012, the Board posted a notice stating that the petition was “determined to be invalid” due to, among other things, “discrepancies” between a version of the petition containing paragraphs written in Polish and an English translation submitted by the Board. In July 2013, the plaintiffs commenced this action “to order Board of Directors to call special meeting of [the Credit Union's] members.” Thereafter, the Board cross-moved for summary judgment dismissing the complaint. In an amended order dated June 12, 2015, the Supreme Court, inter alia, denied the Board’s motion for summary judgment and, in effect, searched the record and awarded summary judgment to the plaintiffs on the complaint. The Board then moved for leave to renew and reargue its motion for summary judgment. In an order dated February 24, 2016, the court, among other things, upon renewal and reargument, adhered to the original determination in the amended order dated June 12, 2015. The Board appeals from the amended order dated June 12, 2015, and the order dated February 24, 2016.Contrary to the Board’s contention, it failed to establish, prima facie, that the petition to call a special meeting was invalid due to “discrepancies” between a version of the petition containing paragraphs written in Polish and an English translation submitted by the Board, since the English translation was not accompanied by an affidavit by the translator stating the translator’s qualifications and that the translation was accurate (see CPLR 2101[b]), and thus, did not constitute admissible evidence (see Rosenberg v. Piller, 116 AD3d 1023, 1025). Since the Board otherwise failed to establish, prima facie, that the petition was invalid, the Supreme Court properly, upon renewal and reargument, adhered to its original determination denying the Board’s motion for summary judgment dismissing the complaint and, under the circumstances presented, properly exercised its authority to, in effect, search the record and award summary judgment to the plaintiffs (see CPLR 3212[b]).The Board’s remaining contentions are either not properly before this Court or without merit.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Ronald Wright, ap — (Ind. No. 270/12)Ronald Wright, Malone, NY, appellant pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Lori Glachman, and Gamaliel Marrero of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), rendered October 28, 2014, convicting him of robbery in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a weapon in the second degree under count five of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.The defendant failed to preserve for appellate review his contention that the convictions were not supported by legally sufficient evidence (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484; People v. Gray, 86 NY2d 10). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of robbery in the second degree and criminal possession of a weapon in the second degree. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero 7 NY3d 633).However, the defendant correctly contends, and the People properly concede, that the conviction of criminal possession of a weapon in the second degree subjected him to double jeopardy. Prior to the defendant’s trial in this case, the defendant pleaded guilty in Nassau County to possessing the same gun that was used in the instant robbery. There was no evidence offered at trial to show that the defendant’s possession of the gun was not continuous. Thus, the defendant’s possession of the same gun on December 14, 2011, in Kings County in connection with the instant robbery, and on December 20, 2011, in Nassau County, constituted a single offense for which he could be prosecuted only once (see Matter of Johnson v. Morgenthau, 69 NY2d 148; People v. Agard, 199 AD2d 401, 403). Accordingly, the conviction of criminal possession of a weapon in the second degree arising from the incident of December 14, 2011, must be vacated.Contrary to the defendant’s contention, the Supreme Court properly admitted evidence of the defendant’s conviction in Nassau County under Indictment No. 82N-12 of criminal possession of a weapon in the fourth degree, the underlying facts of that conviction, including that the gun was recovered during a car stop in Nassau County on December 20, 2011, and ballistics evidence showing that the loaded gun recovered from defendant’s car on December 20, 2011, was the same gun used in the instant robbery committed in Kings County on December 14, 2011. Evidence of the defendant’s conviction in Nassau County of criminal possession of a weapon in the fourth degree was probative of the defendant’s intent to commit the instant robbery in the complainant’s home, was inextricably interwoven with the instant robbery, and was necessary to complete the narrative of events leading to the defendant’s arrest in the instant robbery case (see People v. Tosca, 98 NY2d 660, 661; People v. Till, 87 NY2d 835, 837; People v. Molineux, 168 NY 264; People v. Henry, 166 AD2d 720). In addition, the probative value of this evidence outweighed the risk of prejudice to the defendant (see People v. Alvino, 71 NY2d 233; People v. Giuca, 58 AD3d 750; People v. Washington, 28 AD3d 335; People v. Elder, 12 AD3d 379; People v. Edwards, 295 AD2d 270), and the court’s limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence (see People v. Beer, 146 AD3d 895; People v. Holden, 82 AD3d 1007).Contrary to the defendant’s contention, the Supreme Court properly denied his application to admit the hearsay statement of a nontestifying coconspirator. The defendant failed to establish that the statement was against the penal interest of the nontestifying coconspirator, including that the statement was reliable (cf. People v. Shabazz, 22 NY3d 896, 898; People v. Brensic, 70 NY2d 9, 14; People v. Settles, 46 NY2d 154, 167).Contrary to the defendant’s contention, the Supreme Court properly determined that the failure of the People to produce a surveillance tape showing the defendant and a coconspirator arriving at the complainant’s home just before the robbery did not constitute a violation of his rights under Brady v. Maryland (373 US 83). The evidence at trial established that the surveillance tape was inadvertently lost. Thus, the defendant failed to establish that the surveillance tape was suppressed by the People. In addition, the defendant failed to establish that the surveillance tape was exculpatory or impeaching in nature (see generally Strickler v. Greene, 527 US 263, 281-282; Giglio v. United States, 405 US 150, 154-155). Furthermore, insofar as the evidence established that the surveillance tape was inadvertently lost and not destroyed in bad faith, the complainant’s testimony as to what the lost surveillance tape showed did not violate the best evidence rule (see Schozer v. William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643).Contrary to the defendant’s contention, the complainant properly authenticated certain video clips and still photographs. The evidence at trial established that the complainant and a detective viewed the surveillance tape after the robbery, and that the complainant copied a three-second video clip from that surveillance tape to his cell phone from which certain still photographs were made. The video clip and the photographs showed the defendant and a coconspirator arriving at the complainant’s home before the robbery and showed them running from the home, getting hurriedly into a car and driving away after the robbery. The complainant’s authentication of the video clip and photographs was proper because he witnessed what was captured on the video clip and photographs, and he testified that he was familiar with the video system (see People v. Patterson, 93 NY2d 80, 84-85; People v. McGee, 49 NY2d 48, 59-60; People v. Costello, 128 AD3d 848; People v. Hill, 110 AD3d 410-411).The defendant failed to preserve for appellate review his contention that the Supreme Court’s curtailment of his cross-examination of the complainant constituted a violation of his Sixth Amendment right of confrontation (see CPL 470.05[2]). In any event, insofar as the court afforded the defendant the opportunity to contradict answers given by the complainant to show bias, interest, or hostility (see People v. Diaz, 85 AD3d 1047, 1050, affd 20 NY3d 569), the defendant was not deprived of his right of confrontation (see id. at 150; People v Vigliotti, 203 AD2d 898). The defendant’s similar contention that the court’s curtailment of his cross-examination of the complainant constituted a violation of the defendant’s right to due process is likewise without merit. ”The nature and extent of cross-examination is subject to the sound discretion of the Trial Judge” (People v. Schwartzman, 24 NY2d 241, 244; see People v. Kinard, 215 AD2d 591). Here, the court properly limited defense counsel’s cross-examination of the complainant because counsel’s line of inquiry, in addition to being without foundation, would have caused the jury to speculate about irrelevant matters and matters not in evidence (see People v. Kinard, 215 AD2d at 591; People v. Hendricks, 214 AD2d 584; People v. Thomas, 141 AD2d 782).The defendant’s contention that he was deprived of a fair trial by certain statements made by the prosecutor during summation is not preserved for appellate review because the defendant either failed to object to the prosecutor’s statements or made only general objections, and did not seek curative instructions or move for a mistrial when his objections were sustained (see CPL 470.05[2]; People v. Morris, 2 AD3d 652; People v. McHarris, 297 AD2d 824, 825). In any event, the prosecutor’s statements in his summation, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 AD3d 760; People v. Birot, 99 AD3d 933; People v. Guevara-Carrero, 92 AD3d 693, 695; People v. McHarris, 297 AD2d at 825), or were fair response to defense counsel’s comments during summation (see People v. Adamo, 309 AD2d 808; People v. Clark, 222 AD2d 446, 447; People v. Vaughn, 209 AD2d 459, 459-460). Any improper statements were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Almonte, 23 AD3d 392, 394; People v. Svanberg, 293 AD2d 555).The defendant’s contention that the verdict was repugnant because the jury found him guilty of criminal possession of a weapon in the second degree but acquitted him of robbery in the first degree is unpreserved for appellate review, as he failed to raise the issue before the jury was discharged (see People v. Alfaro, 66 NY2d 985, 987; People v. Tharpe, 92 AD3d 701, 702; People v. Vazquez, 82 AD3d 1273, 1275; People v. Ariza, 77 AD3d 844, 845). In any event, the contention is academic in light of the vacatur of the conviction of criminal possession of a weapon in the second degree (see generally People v. Brown, 235 AD2d 589).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Anthony Smith, ap — (Ind. Nos. 16-00110, 16-00330)Kenyon C. Trachte, Newburgh, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold of counsel), for respondent.Appeals by the defendant from two judgments of the County Court, Orange County (Nicholas DeRosa, J.), both rendered September 9, 2016, each convicting him of criminal sale of a controlled substance in the third degree, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.The defendant was charged in two separate indictments with criminal sale of a controlled substance in the third degree. On July 15, 2016, he pleaded guilty to those charges, in exchange for a promised sentence of concurrent determinate terms of imprisonment of four years plus two years of postrelease supervision, and purportedly waived his right to appeal. A condition of the plea was that he come “back here for sentencing on the date I just gave you”—August 31, 2016. The defendant did not appear in court until September 9, 2016, when the court imposed an enhanced sentence of two concurrent determinate terms of imprisonment of six years plus three years of postrelease supervision. On appeal, the defendant claims his enhanced sentence was illegally imposed and was excessive.The defendant’s purported waiver of his right to appeal was invalid (see People v. Rivers, 141 AD3d 551; People v. Lazier, 122 AD3d 770). In any event, a waiver of the right to appeal does not affect the reviewability of the issue of whether there was a sufficient basis to impose an enhanced sentence (see People v. Gregory, 140 AD3d 1088, 1089; People v. Muhammad, 47 AD3d 951, 952). However, failure to appear on a scheduled sentencing date in violation of a plea agreement may constitute a basis to impose an enhanced sentence (see People v. Figgins, 87 NY2d 840; People v. Diaz, 146 AD3d 803).Here, on August 31, 2016, the defendant went to the emergency room with stomach pains and was treated and released. He was directed to return to court on September 2, 2016, and failed to do so. On September 8, 2016, he was late to court because of transportation problems. The defendant finally appeared for sentencing on September 9, 2016. Under the circumstances, imposition of an enhanced sentence was a provident exercise of discretion (see People v. Nesbitt, 125 AD3d 1016).Since the defendant’s waiver of his right to appeal was invalid, this Court may review the question of whether the enhanced sentence was excessive (see People v. Arrington, 94 AD3d 903). Under the circumstances, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contention is without merit.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Moran Enterprises, Inc., ap, v. Margaret Hurst, respondent def — (Index No. 4634/07)Appeal by the plaintiff from an order of the Supreme Court, Nassau County (Margaret C. Reilly, J.), entered June 4, 2015. The order, insofar as appealed from, upon renewal and reargument, adhered to original determinations in orders of the same court dated September 25, 2013, and May 14, 2014, granting those branches of the motion of the defendant Margaret Hurst which were for leave to amend her answer and for summary judgment dismissing the complaint.ORDERED that the order entered June 4, 2015, is affirmed insofar as appealed from, with costs.The plaintiff retained attorney Margaret Hurst to represent it in certain matters, including filing a second Chapter 11 petition for bankruptcy on its behalf. A few months later, Hurst left active practice and transferred her clients to another attorney. The bankruptcy proceeding was subsequently dismissed. The plaintiff thereafter retained new attorneys, who filed a third Chapter 11 bankruptcy petition on its behalf. The asset schedules filed with the plaintiff’s third bankruptcy petition stated that the plaintiff’s only asset was certain real property, and failed to list any causes of action against Hurst. After the mortgagee of the real property sought to vacate the bankruptcy stay, the bankruptcy court dismissed the plaintiff’s third bankruptcy petition based upon the lack of equity in the property or other assets with which to pay the creditors.The plaintiff thereafter commenced this action against Hurst to recover damages for breach of contract, legal malpractice, conversion, and unjust enrichment. After motion practice on the pleadings, and related appeals (see Moran Enters., Inc. v. Hurst, 96 AD3d 914; Moran Enters., Inc. v. Hurst, 66 AD3d 972), Hurst moved, among other things, for leave to amend her answer to assert a defense that “Plaintiff’s Claims are Barred Due to Failure to Disclose in Third Bankruptcy,” and for summary judgment dismissing the complaint based on that defense. Hurst argued that the plaintiff’s failure to disclose, in its third bankruptcy, the claims against her, barred it from maintaining the claims against her due to a lack of capacity and by application of the doctrine of judicial estoppel. In an order dated September 25, 2013, the Supreme Court granted those branches of Hurst’s motion which were for leave to amend her answer to assert that defense and for summary judgment dismissing the complaint pursuant to that defense based on judicial estoppel. Thereafter, in the order appealed from entered June 4, 2015, the Supreme Court, upon renewal and reargument, adhered to the original determination in the order dated September 25, 2013, and its determination in an order dated May 14, 2014.In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Gomez v. Buena Vida Corp., 152 AD3d 497). Lateness alone is not a barrier to the amendment (see Carducci v. Bensimon, 115 AD3d 694, 695). ”‘It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’” (Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959, quoting David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025:5 at 477 [1975 ed]). The determination to permit or deny amendment is committed to the sound discretion of the trial court (see CPLR 3025[b]; Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 411).Contrary to the plaintiff’s contention, Hurst’s proposed judicial estoppel defense based on its failure to schedule its current claims against her in its third bankruptcy proceeding wasnot palpably insufficient or patently devoid of merit. The doctrine of judicial estoppel precludes a party from taking a position in one legal proceeding which is contrary to that which it took in a prior proceeding, simply because its interests have changed (see Davis v. Citibank, N.A., 116 AD3d 819, 820; Festinger v. Edrich, 32 AD3d 412, 413). ”The twin purposes of the doctrine are to protect the integrity of the judicial process and ‘to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings’” (Davis v. Citibank, N.A., 116 AD3d at 821, quoting Bates v. Long Is. R.R. Co., 997 F2d 1028, 1038 [2d Cir] [citation omitted]). ”[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets” (Rosenshein v. Kleban, 918 F Supp 98, 104 [SD NY]). By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims (see Crawford v. Franklin Credit Mgt. Corp., 758 F3d 473, 486 [2d Cir]). Thus, the doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding (see B.N. Realty Assoc. v. Lichtenstein, 21 AD3d 793, 798; McIntosh Bldrs. v. Ball, 264 AD2d 869, 870; Cafferty v. Thompson, 223 AD2d 99, 102).For the doctrine to apply, there must be “a final determination in the bankruptcy proceeding endorsing the party’s inconsistent position concerning his or her assets” (Koch v. National Basketball Assn., 245 AD2d 230, 231). However, a discharge from bankruptcy is not required for the application of the doctrine. ”The bankruptcy court may ‘accept’ the debtor’s assertions by relying on the debtor’s nondisclosure of potential claims in many other ways” (Hamilton v. State Farm Fire & Cas. Co., 270 F3d 778, 784 [9th Cir]; see In re Coastal Plains, Inc., 179 F3d 197, 210 [5th Cir]).Here, in dismissing the plaintiff’s third bankruptcy proceeding, the bankruptcy court expressly relied upon the plaintiff’s representation in its asset schedules that it had no assets other than the real property (see USC §1112[b]; In re Preferred Door Co., 990 F2d 547, 549 [10th Cir]; In re Babayoff, 445 BR 64, 81-82 [ED NY]). Accordingly, the bankruptcy court accepted and endorsed the plaintiff’s characterization of its assets, and the Supreme Court properly determined that judicial estoppel barred the plaintiff from now maintaining the undisclosed claims (see In re Coastal Plains, Inc., 179 F3d at 210; cf. Davis v. Citibank, N.A., 116 AD3d at 821; Crawford v. Franklin Credit Mgt., Corp., 758 F3d at 486).The plaintiff further contends that leave to amend the answer should have been denied because Hurst’s delay in asserting the defense would prejudice it due to the expiration of the statute of limitations for a legal malpractice cause of action against its subsequent bankruptcy attorneys who failed to list the claims against Hurst in the bankruptcy schedules. However, the plaintiff asserted a timely legal malpractice cause of action against the subsequent bankruptcy attorneys, which was dismissed because the plaintiff was dissolved by the Secretary of State for failure to pay franchise taxes, and the plaintiff lacked the capacity to enforce obligations arising out of the representation until it secured retroactive de jure status by payment of delinquent franchise taxes (see Moran Enters., Inc. v. Hurst, 66 AD3d at 976). Thus, the plaintiff’s loss of any claims against those attorneys was due to its own failure to pay the delinquent franchise taxes and to timely recommence the action against those attorneys (see CPLR 205[a]), and was not the result of Hurst’s delay in asserting the defense (see generally CPLR 203[f]; Pendleton v. City of New York, 44 AD3d 733, 736; cf. Daughtry v. Rosegarten, 180 Misc 2d 102, 103-104 [App Term 2d Dept]).Accordingly, the Supreme Court providently exercised its discretion in granting Hurst leave to amend her answer to assert a judicial estoppel defense based on the plaintiff’s failure to schedule its current claims against her in its third bankruptcy proceeding, and properly awarded Hurst summary judgment dismissing the complaint based on that defense.In light of our determination, we need not address the parties’ remaining contentions regarding the plaintiff’s alleged lack of capacity to maintain this action or the validity of the breach of contract cause of action.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.PEOPLE, res, v. Marquis Phillips, ap — Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Albert Tomei, J.), dated April 30, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (see Correction Law article 6-C; hereinafter SORA), the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence (see Correction Law §168-n[3]; People v. Guichardo, 146 AD3d 910, 910; People v. Crandall, 90 AD3d 628, 629).Here, the Supreme Court properly assessed 15 points under risk factor 11 (see SORA: Risk Assessment Guidelines and Commentary at 15 [2006]), as the People established by clear and convincing evidence that the defendant had a history of substance abuse (see People v. Pearce, 135 AD3d 722, 722; People v. Wise, 127 AD3d 834, 834; People v. Finizio, 100 AD3d 977, 978).Contrary to the defendant’s contention, it was proper for the Supreme Court to hold a hearing pursuant to SORA after the matter was remitted from this Court (see People v. Phillips, 110 AD3d 1050), notwithstanding that at the time of the hearing the defendant was incarcerated and serving a sentence of imprisonment of 78 years to life on a subsequent conviction (see Correction Law §168-n[2], [3]).RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Austin, Miller and Hinds-Radix, JJ.PEOPLE, etc., res, v. Sadiq Abdul Wahaab, ap — (Ind. No. 1319/11)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel Goldberg, J.), rendered September 9, 2013, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial.In the course of jury selection, the defendant exercised several peremptory challenges to prospective jurors that were contested on the ground that he was attempting to exclude white people from the jury (see Batson v. Kentucky, 476 US 79; see generally People v. Kern, 75 NY2d 638, 649-650). Although the Supreme Court made several determinations regarding various reverse-Batson challenges, the defendant, on appeal, argues that the court erred in determining that a challenge to one specific juror was pretextual. Contrary to the defendant’s contentions, the record supports the court’s determination that defense counsel’s proffered reasons for challenging that prospective juror were pretextual because the record does not support any valid claim that the juror, who was a documentary filmmaker, would be any more likely to disregard the court’s instruction not to perform independent Internet research than any other juror. Thus, we decline to disturb the court’s determination that the challenge was pretextual (see People v. Hernandez, 75 NY2d 350, 356, affd sub nom. Hernandez v. New York, 500 US 352).We nevertheless reverse the judgment of conviction because of an erroneous Sandoval ruling made by the Supreme Court (see People v. Sandoval, 34 NY2d 371). At trial, the court permitted the defendant to be cross-examined about a prior robbery conviction which, at that time, was the subject of a pending appeal (see People v. Wahhab, 118 AD3d 925). However, the Court of Appeals has held, and the People concede, that defendants may not be examined “about the underlying facts of an unrelated criminal conviction on appeal, for the purpose of impeaching his credibility” (People v. Cantave, 21 NY3d 374, 381).Sandoval errors are subject to harmless error analyses (see People v. Grant, 7 NY3d 421, 424; People v. Elten, 23 AD3d 577, 578). Here, however, we cannot conclude that the evidence of guilt was overwhelming or that there was no reasonable possibility that the error might have contributed to the conviction (see People v. Crimmons, 36 NY2d 230, 237; People v. Wallace, 31 AD3d 1041, 1045). Thus, the Sandoval ruling cannot be considered harmless (see People v. Calderon, 146 AD3d 967, 970).Accordingly, the judgment of conviction must be reversed, and a new trial ordered.In light of our determination, the defendant’s remaining contention, that he was deprived of the effective assistance of counsel, is academic.DILLON, J.P., AUSTIN, MILLER and HINDS-RADIX, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Loventino Cassadean, ap — (Ind. No. 1508/12)Michael A. Fiechter, Bellmore, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered February 17, 2015, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s purported waiver of his right to appeal was invalid (see People v. Lopez, 6 NY3d 248; People v. Brown, 122 AD3d 133). A waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily made (see People v. Lopez, 6 NY3d at 256; People v. Callahan, 80 NY2d 273, 280). Furthermore, the waiver is effective only when the record demonstrates that the defendant has a full appreciation of the consequences of that waiver (see People v. Brown, 122 AD3d at 136). Here, the record shows that the court did not properly explain that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Lopez, 6 NY3d at 256).Contrary to the defendant’s contentions, the record demonstrates that his plea of guilty was entered voluntarily, knowingly, and intelligently (see CPL 220.60[3]; People v. Fiumefreddo, 82 NY2d 536, 543; People v. Williams, 129 AD3d 1000; People v. Franco, 104 AD3d 790). In particular, the record demonstrates that the defendant understood the proceedings and was not impaired by the medication he was taking (see People v. Wilson, 132 AD3d 786). Moreover, the Supreme Court was not required to inquire into a possible affirmative defense, since nothing in the record suggested that an affirmative defense might exist (see People v. Washington, 186 AD2d 834; People v. Martinez, 127 AD2d 855).Contrary to the defendant’s contentions, in a plea allocution, the defendant need not specifically admit to each element of the crime (see People v. Goldstein, 12 NY3d 295, 301; People v. Seeber, 4 NY3d 780, 781). A plea allocution is sufficient where, as here, the allocution shows that the defendant understood the charges and made an intelligent decision to enter a plea (see People v. Barrett, 105 AD3d 862, 863).The defendant further contends that his plea was involuntary because he was never advised that his parental rights to his son could be terminated upon his conviction. This contention is unpreserved for appellate review, as the defendant did not move to withdraw his plea on this ground prior to sentencing (see CPL 220.60[3], 470.05[2]; People v. Hernandez, 110 AD3d 919; People v. Devodier, 102 AD3d 884).The defendant’s claim of ineffective assistance of counsel is based, in part, on matters outside the record and, thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell, 89 AD3d 1108, 1109). Therefore a CPL 440.10 proceeding is the appropriate forum for resolving the claim in its entirety (see People v. Freeman, 93 AD3d 805, 806).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Johnnie Charles, ap — (Ind. No. 14-00445)Mark Diamond, New York, NY, for appellant.Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered February 3, 2016, convicting him of attempted burglary in the second degree, upon his plea of guilty, adjudicating him a second violent felony offender, and thereupon sentencing him to a determinate term of imprisonment of five years, plus five years of postrelease supervision.ORDERED that the judgment is modified, on the law, by vacating the defendant’s adjudication as a second violent felony offender and the sentence imposed thereupon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Rockland County, for a new second violent felony offender determination, and for resentencing thereafter, in accordance herewith.The defendant, as part of a negotiated disposition, entered a plea of guilty to attempted burglary in the second degree. Due to health reasons, the assigned counsel who represented the defendant at the plea proceeding was unavailable to represent him at the sentencing proceeding. A different attorney, Bruce Klein, was assigned to represent the defendant. Klein attempted to meet with the defendant, but the defendant refused to be interviewed by Klein, stating that Klein was not his attorney and that he did not know who Klein was.At the sentencing proceeding, the Supreme Court asked the defendant if the defendant wanted Klein to represent him, and the defendant answered in the negative. The court continued the sentencing proceeding, with the defendant appearing pro se and Klein present as a “standby” attorney or legal advisor, and thereafter adjudicated the defendant a second violent felony offender and imposed sentence.As the People correctly concede, the Supreme Court erred in allowing the defendant to proceed pro se at the sentencing proceeding without conducting a searching inquiry to ascertain whether the defendant appreciated the dangers and advantages of giving up the fundamental right to counsel (see People v. Grueiro, 74 AD3d 1232, 1233 [quotation marks and citation omitted]). Accordingly, the matter must be remitted to the Supreme Court, Rockland County, for a new second violent felony offender determination, and resentencing thereafter (see id. at 1233).Contrary to the defendant’s contention, since the record demonstrates that his plea of guilty was entered voluntarily, knowingly, and intelligently, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his plea (see People v. Harris, 153 AD3d 552, 553; People v. Manragh, 150 AD3d 762; People v. Morris, 148 AD3d 732).The defendant’s remaining contention is academic in light of our determination.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Iannacci, JJ.PEOPLE, res, v. Alexander Santos, ap — Laurette D. Mulry, Riverhead, NY (Kirk R. Brandt of counsel), for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), for respondent.Appeal by the defendant from an order of the County Court, Suffolk County (Barbara Kahn, J.), dated June 5, 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 defendant contends that the County Court erred in designating him a level two sex offender based on an upward departure from level one. ”An upward departure is permitted only if the court concludes ‘that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’” (People v. Jackson, 139 AD3d 1031, 1032, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; citing People v. Gillotti, 23 NY3d 841, 861; see People v. Gabriel, 129 AD3d 1046). After such a factor is identified, and after the facts supporting the existence of such factor have been proved by clear and convincing evidence, the court must “exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an… under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (People v. Gillotti, 23 NY3d at 861).Contrary to the defendant’s contention, there was “reliable hearsay evidence” (People v. Sincerbeaux, 27 NY3d 683, 687; see People v. Mingo, 12 NY3d 563; People v. Ziliox, 145 AD3d 925) that proved, by clear and convincing evidence, a prior history of sexual misconduct (see People v. Jackson, 139 AD3d 1031, 1032) that was not accounted for on the risk assessment instrument, and which, by itself, justified the upward departure (see People v. Jackson, 139 AD3d 1031, citing People v. DeJesus, 117 AD3d 1017, 1018). The County Court properly weighed the evidence concerning the defendant’s prior sexual misconduct, and providently exercised its discretion in determining that a level one designation would constitute an under-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 841, 861). Accordingly, the court properly designated the defendant a level two sex offender.SCHEINKMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.By Mastro, J.P.; Rivera, Hinds-Radix and Iannacci, JJ.MATTER of Buster Griffin, res, v. Renee A. Danzy, ap — (Proceeding No. 1)MATTER of Renee A. Danzy, ap, v. Buster Griffin, res — (Proceeding No. No. 2) (Docket Nos. V-20589-13, V-20590-13, V-29592-15, V-29593-15)Francine Shraga, Brooklyn, NY, for appellant.Joel Borenstein, Brooklyn, NY, for respondent.Appeal by the mother from an order of the Family Court, Kings County (Emily M. Martinez, Ct. Atty. Ref.), dated June 22, 2016. The order, insofar as appealed from, after a hearing, granted that branch of the father’s petition which was for unsupervised visitation with the parties’ children.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The parties, who were never married, have two children together, twins born in April 2012. The children, who were born prematurely, have several health issues, including chronic lung disease and asthma, and one child has a heart defect.In July 2013, the father filed a petition for custody and visitation. Thereafter, temporary orders of visitation were issued, granting the father alternate weekend visitation with the children, initially supervised by the mother, and later with the assistance of the children’s home health aide. After a hearing, the Family Court, inter alia, granted the father unsupervised, overnight visitation on alternate weekends, to commence gradually after the mother had provided the father with an updated list of the children’s physicians and the father had contacted each physician regarding the children’s diagnoses and medications. The mother appeals.The court’s paramount concern in adjudicating visitation rights is the best interests of the child (see Matter of Murphy v. Lewis, 149 AD3d 748, 749; Matter of Anthony M.P. v. Ta-Mirra J.H., 125 AD3d 868, 868; Matter of Morocho v. Jordan, 123 AD3d 1037, 1037). ”Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child” (Cervera v. Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Murphy v. Lewis, 149 AD3d at 750; Matter of Lopez v. Lopez, 127 AD3d 974, 974; Matter of Blazek v. Zavelo, 127 AD3d 854, 854; Matter of Anthony M.P. v. Ta-Mirra J.H., 125 AD3d at 868). ”Since custody and visitation determinations ‘necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court’s findings’” (Matter of James M. v. Kevin M., 99 AD3d 911, 913, quoting Matter of Elliott v. Felder, 69 AD3d 623, 623). Thus, the determination of whether visitation should be supervised is a matter within the sound discretion of the Family Court and should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Blazek v. Zavelo, 127 AD3d at 854; Matter of Anthony M.P. v. Ta-Mirra J.H., 125 AD3d at 868; Matter of Dolan v. Masterton, 121 AD3d 979, 981; Irizarry v. Irizarry, 115 AD3d 913, 915; Matter of Brian M. v. Nancy M., 227 AD2d 404, 404; Matter of Gerald D. v. Lucille S., 188 AD2d 650, 650).Here, the record does not support a conclusion that overnight, unsupervised visitation would be detrimental to the children. Further, the requirements imposed by the Family Court’s order, including requiring the mother to provide contact information for all of the children’s doctors, requiring the father to contact each doctor to obtain information about the children’s diagnoses and medications, and introducing the overnight visitation gradually, while ensuring the assistance of the children’s home health aide, are designed to protect the children while encouraging the bond between the children and the father (see Matter of Anthony M.P. v. Ta-Mirra J.H., 125 AD3d at 868). Accordingly, the court’s visitation determination had a sound and substantial basis in the record, and will not be disturbed (see Matter of Blazek v. Zavelo, 127 AD3d at 854; Matter of Dolan v. Masterton, 121 AD3d at 981; Irizarry v. Irizarry, 115 AD3d at 915; Matter of Gerald D. v. Lucille S., 188 AD2d at 650).MASTRO, J.P., RIVERA, HINDS-RADIX and IANNACCI, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Rinat Dray, appellant-res, v. Staten Island University Hospital res-ap, Leonid Gorelik res — (Index No. 500510/14)In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Kings County (Laura Lee Jacobson, J.), dated May 12, 2015, as denied that branch of her cross motion which was for summary judgment on the issue of liability on the fourth cause of action, and (2) so much of an order of the same court dated October 29, 2015, as denied that branch of her cross motion which was for summary judgment on the issue of liability on the second cause of action, and, upon converting those branches of the motion of the defendants Staten Island University Hospital and James J. Ducey, and the separate motion of the defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., which were pursuant to CPLR 3211(a)(5) to dismiss the first, second, and third causes of action insofar as asserted against each of them as time-barred to motions for summary judgment, granted those branches of the motions to the extent of dismissing the third cause of action and so much of the first and second causes of action as were based on an allegation that the defendants performed a cesarean section upon her despite her objection, and the defendants Staten Island University Hospital and James J. Ducey cross-appeal, as limited by their brief, from (1) so much of the order dated May 12, 2015, as denied that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action insofar as asserted against them for failure to state a cause of action, and (2) so much of the order dated October 29, 2015, as, upon converting those branches of their motion which were pursuant to CPLR 3211(a)(5) to dismiss the first, second, and third causes of action as time-barred to a motion for summary judgment, denied that branch of the motion which was for summary judgment dismissing, as time-barred, so much of the first cause of action insofar as asserted against them as was based on their alleged failure to summon a patient advocate group and bioethics panel.ORDERED that the order dated May 12, 2015, is affirmed insofar as appealed from and reversed insofar as cross-appealed from, on the law, without costs or disbursements, and that branch of the motion of the defendants Staten Island University Hospital and James J. Ducey which was pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action insofar as asserted against them for failure to state a cause of action is granted; and it is further,ORDERED that the order dated October 29, 2015, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.The plaintiff, who previously had given birth to two children via cesarean section (hereinafter c-section), opted to attempt a vaginal birth when she became pregnant with her third child. The plaintiff arrived at the defendant Staten Island University Hospital (hereinafter the hospital) on July 26, 2011, experiencing contractions. The plaintiff was examined by the defendant Leonid Gorelik, of the defendant Metropolitan OB-GYN Associates, P.C. (hereinafter Metropolitan), who informed the plaintiff that a c-section was necessary. However, the plaintiff refused to consent to a c-section, insisting upon a vaginal birth. Gorelik consulted with the defendant James J. Ducey, the hospital’s director of obstetrics, and Arthur Fried, the hospital’s general counsel. Ducey, with the concurrence of Gorelik and Fried, determined that there was insufficient time to seek a court order, and that he would override the plaintiff’s refusal to consent and proceed with a c-section. A c-section was performed on the plaintiff by Gorelik, Ducey, and several residents. During the procedure, the plaintiff’s bladder was lacerated, and the laceration was repaired.On January 22, 2014, the plaintiff commenced this action, inter alia, to recover damages for negligence, medical malpractice, and violations of Public Health Law §2803-c and 10 NYCRR 405.7. The plaintiff alleged, among other things, that the defendants were negligent in performing a c-section upon her without her consent, in failing to summon the hospital’s patient advocate and bioethics department to assist her, in determining that a c-section was necessary, and in lacerating her bladder.The hospital and Ducey moved, and Gorelik and Metropolitan separately moved, pursuant to CPLR 3211(a)(5) and (7) to dismiss portions of the amended complaint insofar as asserted against each of them. They argued, inter alia, that portions of the first and second causes of action, and the entire third cause of action, should be dismissed as time-barred, and that the fourth cause of action should be dismissed for failure to state a cause of action. The plaintiff cross-moved for summary judgment on the issue of liability. In an order dated May 12, 2015, the Supreme Court, among other things, converted those branches of the defendants’ respective motions which were to dismiss portions of the first and second causes of action, and the entire third cause of action, as time-barred to motions for summary judgment, and held those branches of the motions in abeyance to allow the parties to file supplemental papers. The court also denied those branches of the defendants’ respective motions which were to dismiss the fourth cause of action for failure to state a cause of action, denied that branch of the plaintiff’s cross motion which was for summary judgment on the fourth cause of action, and held the rest of the plaintiff’s cross motion in abeyance. The plaintiff appeals, and the hospital and Ducey cross-appeal, from the order dated May 12, 2015.After the parties filed supplemental papers, in an order dated October 29, 2015, the Supreme Court, among other things, granted those branches of the defendants’ converted motions which were for summary judgment dismissing, as time-barred, the entire third cause of action and so much of the first and second causes of action as were based on an allegation that the c-section was performed upon the plaintiff despite her objection, denied those branches of the defendants’ converted motions which were for summary judgment dismissing, as time-barred, so much of first cause of action as was based on the defendants’ alleged failure to summon a patient advocacy group and bioethics panel, and denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on the second cause of action. The plaintiff appeals, and the hospital and Ducey cross-appeal, from the order dated October 29, 2015.Contrary to the plaintiff’s contention, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing, as barred by the one-year statute of limitations for intentional torts (see CPLR 215[3]), the entire third cause of action and so much of the first and second causes of action as were based on an allegation that the defendants performed a c-section upon the plaintiff despite her objection. In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the characterization of those allegations by the parties (see Western Elec. Co. v. Brenner, 41 NY2d 291, 293; Tong v. Target, Inc., 83 AD3d 1046; Doe v. Jacobs, 19 AD3d 641, 642; Rutzinger v. Lewis, 302 AD2d 653, 654). Here, the defendants each established, prima facie, that the one-year statute of limitations for intentional torts applied (see De La Cruz v. Nour, 134 AD3d 883, 884; Fragosa v. Haider, 17 AD3d 526, 527; Cerilli v. Kezis, 16 AD3d 363; Cross v. Colen, 6 AD3d 306). The plaintiff’s allegation that the defendants performed an unauthorized procedure upon her is an allegation of intentional conduct rather than conduct that can be construed as a deviation from a reasonable standard of care (see Messina v. Matarasso M.D., F.A.C.S., P.C., 284 AD2d 32, 35). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff could not avoid the running of the limitations period by attempting to couch the claim as one sounding in negligence, medical malpractice, or lack of informed consent (see Tong v. Target, Inc., 83 AD3d at 1046-1047; Smith v. County of Erie, 295 AD2d 1010, 1010-1011; Wertzberger v. City of New York, 254 AD2d 352).To the extent that the second cause of action was based on an allegation that the defendants committed medical malpractice, the plaintiff failed to establish her prima facie entitlement to summary judgment on the issue of liability. While the plaintiff alleged that the defendants committed medical malpractice when they lacerated her bladder during the c-section, she did not present any expert medical testimony indicating that the laceration of her bladder was caused by a deviation from the applicable standard of care (see Koster v. Davenport, 142 AD3d 966, 968; Deadwyler v. North Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781; Harper v. Findling, 38 AD3d 601, 601-602). ”‘Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause’” (Nichols v. Stamer, 49 AD3d 832, 833, quoting Lyons v. McCauley, 252 AD2d 516, 517; see Berger v. Becker, 272 AD2d 565, 566; Lasek v. Nachtigall, 189 AD2d 749).Although the plaintiff submitted expert testimony that the defendants deviated from the standard of care when they determined that the plaintiff needed a c-section, in opposition, the hospital and Ducey submitted the redacted affirmation of an obstetrician/gynecologist who opined that the c-section was indicated given the plaintiff’s prolonged labor, the fetal heart rate pattern, and the increasing potential for uterine rupture. Gorelik and Metropolitan submitted an affidavit of an obstetrician/gynecologist who opined that the fetal heart tracings showed cause for concern, despite appropriate measures taken to correct the fetal status. The expert opined that the decision to recommend a c-section was appropriately made. ”Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 AD3d 517, 519). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on so much of the second cause of action as was based upon the defendants’ alleged malpractice in determining that a c-section was necessary, and in lacerating the plaintiff’s bladder.Contrary to the contention of the hospital and Ducey, the Supreme Court properly denied that branch of their converted motion which was for summary judgment dismissing so much of the first cause of action insofar as asserted against them as was based on their alleged failure to summon a patient advocate group and bioethics panel as duplicative of the untimely allegations sounding in battery. Assuming that they state a cause of action, the allegations that the hospital and Ducey failed to provide the plaintiff with the assistance of the patient advocate group and bioethics panel are not duplicative of the allegations sounding in battery because they are not based on intentional conduct, but on negligence (see De La Cruz v. Nour, 134 AD3d 883, 884-885; Green v. Emmanuel African M.E. Church, 278 AD2d 132).The fourth cause of action is predicated on alleged violations of Public Health Law §2803-c(3)(e) and 10 NYCRR 405.7(b)(10), specifically, the deprivation of the plaintiff’s right to refuse treatment. Public Health Law §2803-c is entitled “Rights of patients in certain medical facilities” (emphasis added). Public Health Law §2803-c(2) specifies that the statute applies to “nursing home[s]” and “ facilit[ies] providing health-related service,” which it states are defined in Public Health Law §2801(2) and (4)(b), respectively. Public Health Law §2801(2) defines a “nursing home” as “a facility proving nursing care… in addition to lodging and board or health-related service,” while Public Health Law §2801(1) separately defines a “hospital” as, inter alia, “a facility or institution engaged principally in providing services by or under the supervision of a physician.” Public Health Law §2801(4)(b) defines “health-related service” as service in facilities which “provide or offer lodging, board and physical care,” while Public Health Law §2801(4)(a) separately defines “hospital service” as, among other things, the “preadmission, out-patient, in-patient and post discharge care provided in or by a hospital.” Accordingly, it is clear from the statutory scheme that Public Health Law §2803-c was not intended to apply to hospitals.Public Health Law §2801-d authorizes a private right of action by patients of “residential health care facilities” for the violation of rights enumerated in Public Health Law §2803-c. ”Residential health care facility” is defined by the statute as “a nursing home or facility providing health-related service” (Public Health Law §2801[3]). Since the hospital is not a “residential health care facility,” this provision is not applicable to the hospital (see Novick v. South Nassau Communities Hosp., 136 AD3d 999, 1001; Burkhart v. People, Inc., 129 AD3d 1475, 1477). The fact that the legislature did not specify that a private right of action was available against hospitals indicates that providing a private right of action to hospital patients was contrary to the legislative scheme. Therefore, no private right of action under the Public Health Law should be inferred (see Sheehy v. Big Flats Community Day, 73 NY2d 629, 633; Cunningham v. Newman, 81 AD3d 440).10 NYCRR 405.7, entitled “Patients’ Rights,” is a regulation promulgated by the New York State Department of Health which requires that patients be afforded certain rights. 10 NYCRR 405.7 does apply to hospitals, but no private right of action arising from an alleged violation of that regulation has been recognized. Although a violation of that regulation may be cited in support of a medical malpractice cause of action based upon a violation of a standard of care, a violation of that regulation does not give rise to an independent private right of action (see McDonald v. New York City Health & Hosps. Corp., 203 AD2d 6; McNair v. N.Y.C.D.O.C. Comm., 2017 US Dist LEXIS 146829 [SD NY, No. 16-CV-2778 (LAD)]; Walters v. New York City Health & Hosps. Corp., 2005 WL 324242, *3, 2005 US Dist LEXIS 1895, *8 [SD NY, No. 02-Civ-751 (DF)]; Armstrong v. Brookdale Univ. Hosp. & Med. Ctr., 2002 WL 13222, 2002 US Dist LEXIS 29224 [ED NY, No. 98-CV-2416 (SJ)]). Accordingly, the Supreme Court should have granted that branch of the motion of the hospital and Ducey which was pursuant to CPLR 3211(a)(7) to dismiss the fourth cause of action insofar as asserted against them.The plaintiff’s remaining contentions either are without merit or need not be addressed in light of our determination.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Leventhal, J.P.; Hinds-Radix, Lasalle and Brathwaite Nelson, JJ.Rinat Dray, res, v. Staten Island University Hospital ap — (Index No. 500510/14)In an action, inter alia, to recover damages for medical malpractice, the defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Laura Lee Jacobson, J.), dated May 10, 2016, as denied their motion for summary judgment dismissing the fourth cause of action, which alleged violations of Public Health Law §2803-c and 10 NYCRR §405.7, insofar as asserted against them, and the defendants Staten Island University Hospital and James J. Ducey separately appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing, as time-barred, the fourth cause of action insofar as asserted against them.ORDERED that the appeal by the defendants Staten Island University Hospital and James J. Ducey is dismissed as academic in light of our determination on the companion appeal (see Dray v. Staten Island University Hospital, __ AD3d __ [Appellate Division Docket No. 2015-12064; decided herewith]); and it is further,ORDERED that the order is reversed insofar as appealed from by the defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., on the law, and the motion of those defendants for summary judgment dismissing the fourth cause of action insofar as asserted against them is granted; and it is further,ORDERED that one bill of costs is awarded to the defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., payable by the plaintiff.Public Health Law §2803-c(3)(e), which applies to residential health care facilities, and 10 NYCRR 405.7, which applies to hospitals, do not apply to private attending physicians and their medical practices. Further, a violation of 10 NYCRR 405.7 does not give rise to an independent private right of action (see Dray v. Staten Island University Hospital, __ AD3d __ [Appellate Division Docket No. 2015-12064; decided herewith]; McDonald v. New York City Health & Hosps. Corp., 203 AD2d 6; McNair v. N.Y.C.D.O.C. Comm., 2017 US Dist. LEXIS 146829 [SD NY, Sept. 8, 2017, No. 16-CV-2778 (LAD)]; Walter v. New York City Health & Hosps. Corp., 2005 WL 324242, *3, 2005 US Dist LEXIS 1895, *8 [SD NY, Feb. 8, 2005, No. 02-CF-751 (DF)]; Armstrong v. Brookdale Univ. Hosp. and Med. Center, 2002 WL 13222, 2002 US Dist LEXIS 29224 [ED NY, Jan. 3, 2002, No. 98-CV-2416 (SJ)]). Accordingly, the Supreme Court should have granted the motion of the defendants Leonid Gorelik and Metropolitan OB-GYN Associates, P.C., for summary judgment dismissing the fourth cause of action, which alleged violations of those provisions, insofar as asserted against them.LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Leventhal, Miller and Brathwaite Nelson, JJ.MATTER of Jewish Center of Forest Hills West, Inc., ap, v. Geoffrey Goldberg, res — (Index No. 700753/15)Appeal by the petitioner from a judgment of the Supreme Court, Queens County (Robert L. Nahman, J.), entered August 26, 2015. The judgment denied the petition filed pursuant to CPLR article 75, which sought a permanent stay of arbitration of a claim alleging breach of contract, and dismissed the proceeding.ORDERED that the judgment is affirmed, with costs.The petitioner, Jewish Center of Forest Hills West, Inc. (hereinafter the Jewish Center), is a synagogue in Queens. On August 1, 2011, the Jewish Center’s board of directors (hereinafter the board) entered into a contract with the respondent, Geoffrey Goldberg, pursuant to which Goldberg was to serve as rabbi of the synagogue for a two-year term ending July 31, 2013. Pursuant to the terms of the contract, unless either party notified the other in writing no later than February 1, 2013, the agreement would continue in force for another two-year period at the same terms and conditions, and a salary adjustment would be negotiated between the parties. The contract contained a clause requiring, in the event of a dispute, the parties to use the alternative dispute resolution procedures of the United Synagogue of Conservative Judaism (hereinafter USCJ) and the Rabbinical Assembly, including USCJ’s arbitration procedures.On January 17, 2013, the president of the board delivered to Goldberg a one-sentence letter reading, “Per requirements, this is to notify you that your contract will not be renewed as written.” Thereafter, Goldberg and the board entered into contract negotiations, but were unable to reach an agreement. On July 22, 2013, the president of the board delivered a second letter to Goldberg stating, in relevant part, “this is to officially inform you that the Board of Directors voted not to renew your contract at its expiration July 30, 2013.”On October 15, 2013, Goldberg filed a request for mediation and/or arbitration with the USCJ alleging wrongful nonrenewal of his contract and seeking reinstatement as rabbi of the Jewish Center. The parties engaged in mediation and arbitration. Although the Jewish Center objected to certain issues raised by Goldberg being decided in arbitration, it did not dispute the validity of the employment agreement and the arbitration clause included therein. On January 8, 2015, the chair of the USCJ arbitration panel issued a preliminary ruling delineating, inter alia, the scope of the dispute before the panel. The Jewish Center requested reconsideration of this ruling. In a February 9, 2015, ruling, the panel chair adhered to his previous ruling.Meanwhile, on February 6, 2015, the Jewish Center commenced this proceeding in the Supreme Court pursuant to CPLR article 75 seeking a stay of arbitration, arguing, inter alia, that there was no valid agreement to arbitrate and any challenge to the action of the board was barred by the statute of limitations. The court found that, by participating in the arbitration process, the Jewish Center had waived its right to seek a stay of arbitration, and denied the petition and dismissed the proceeding on that basis. The Jewish Center appeals.Pursuant to CPLR 7503(b), “a party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with or that the claim sought to be arbitrated is barred by [the statute of] limitation[s]” (emphasis added). The statute requires that a party raise these threshold issues before participating in arbitration (see 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, 79; cf. CPLR 7502[b]). Consequently, a party, such as the Jewish Center, which participates in arbitration, waives the right to later object to the arbitration on the grounds that a valid agreement to arbitrate was not made or that the claim sought to be arbitrated is barred by the statute of limitations (see Matter of Silverman [Benmor Coats], 61 NY2d 299, 307; Matter of Tri State Consumer Ins. Co. v. High Point Prop. & Cas. Co., 127 AD3d 980, 981; Matter of Allstate Ins. Co. v. New York Petroleum Assn. Compensation Trust, 104 AD3d 682; Matter of Utica Mut. Ins. Co. v. Incorporated Vil. of Floral Park, 262 AD2d 565, 566). Inasmuch as the Jewish Center argues that the arbitrator is exceeding the scope of its authority in the course of a pending arbitation, these arguments are more properly the subject of a motion to vacate an arbitration award (see CPLR 7511[b][1][iii]; 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 at 79; Matter of Silverman [Benmor Coats], 61 NY2d at 307). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Cohen, Connolly and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. James Robinson, a/k/a Rudolph Robinson, ap — (Ind. No. 6007/00)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated September 20, 2004 (People v. Robinson, 10 AD3d 696), affirming a judgment of the Supreme Court, Kings County, rendered October 4, 2001.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Iannacci, JJ.MATTER of John M. M. (Anonymous). Administration for Childrens Services, ap; Michael M. (Anonymous), res — (Docket No. N-24216-15)Janis A. Parazzelli, Floral Park, NY, for respondent.Seymour W. James, Jr., New York, NY (Dawne A. Mitchell and Susan Clement of counsel), attorney for the child.Appeal by the petitioner from an order of the Family Court, Queens County (Emily Ruben, J.), dated March 7, 2017. The order, after a fact-finding hearing, and upon a finding that the petitioner failed to establish, prima facie, that the father neglected the subject child, granted the father’s motion to dismiss the petition and dismissed the petition.ORDERED that the order is reversed, on the law, without costs or disbursements, the the father’s motion to dismiss the petition is denied, the petition is reinstated, a finding is made that the petitioner established, prima facie, that Michael M. neglected the subject child, and the matter is remitted to the Family Court, Queens County, for a continued fact-finding hearing where Michael M. can present his case, if he be so advised, and a new determination thereafter.The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that Michael M. (hereinafter the father) neglected the subject child by committing acts of domestic violence against the child’s mother in the presence of the child. After the close of the petitioner’s case, the Family Court granted the father’s motion to dismiss the petition for failure to establish a prima facie case and dismissed the petition. The petitioner appeals.“To establish neglect, [a] petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Matter of Chaim R. [Keturah Ponce R.], 94 AD3d 1127, 1130; see Family Ct Act §§1012[f][i][B]; 1046[b][i]; Nicholson v. Scoppetta, 3 NY3d 357, 368). Although the exposure of a child to domestic violence between parents may form the basis for a finding of neglect (see e.g. Matter of Jihad H. [Fawaz H.], 151 AD3d 1063, 1064; Matter of Moises G. [Luis G.], 135 AD3d 527; Matter of Andrew Y., 44 AD3d 1063, 1064), “exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment” (Nicholson v. Scoppetta, 3 NY3d at 375 [emphasis omitted]; see Matter of Kiana M.-M. [Robert M.], 123 AD3d 720, 721).Contrary to the Family Court’s determination, viewing the evidence in the light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the evidence (see Matter of Jaivon J. [Patricia D.], 148 AD3d 890, 892), the petitioner presented a prima facie case of neglect against the father. At the fact-finding hearing, the petitioner presented, among other things, the hearsay testimony of a police officer who testified that the mother described the father throwing an object at her head, choking her, and throwing her to the ground at the side of their bed, causing her to lose consciousness. Certified hospital records that the petitioner also introduced into evidence generally corroborated the mother’s statements, including her statement that the child, who was then 11 months old, was lying on the parents’ bed throughout the assault. Accordingly, the court erred in granting the father’s motion to dismiss the petition (see Matter of Isabella S. [Robert T.], 154 AD3d 606, 606-607; Matter of Jihad H. [Fawaz H.], 151 AD3d at 1064; Matter of Cody W. [Ronald L.], 148 AD3d 914, 916; Matter of Tamara D. [Randolph P.], 120 AD3d 813, 813; Matter of Kiara C. [David C.], 85 AD3d 1025, 1026). Since the court terminated the proceeding after the close of the petitioner’s direct case upon an erroneous finding that a prima facie case had not been established, there must be a continued fact-finding hearing for the father to present his case, if he be so advised, and a new determination thereafter (see generally Matter of Jaivon J. [Patricia D.], 148 AD3d at 892; Matter of Marques B. [Eli B.], 133 AD3d 654, 655).SCHEINKMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Lasalle, JJ.PEOPLE, etc., res, v. Todd Gringer, ap — (Ind. No. 197-15)Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered January 26, 2016, convicting him of driving while intoxicated as a felony in violation of Vehicle and Traffic Law §1192(3), upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that the Judge of the County Court who presided over the defendant’s plea of guilty and sentencing should have recused himself is without merit. ”Where, as here, no basis for disqualification pursuant to Judiciary Law §14 was presented, it was up to the conscience and discretion of the justice to decide whether or not to recuse himself” (People v. Harris, 133 AD3d 880, 880; see People v. Moreno, 70 NY2d 403, 405; People v. Smith, 123 AD3d 950; People v. Weekes, 46 AD3d 583, 585; People v. Daly, 20 AD3d 542). Here, there is no evidence in the record to suggest that the County Court Judge was biased, nor is there any basis on which to reasonably question the court’s ability to impartially preside over the matter (see People v. Smith, 123 AD3d 950; People v. Weekes, 46 AD3d at 585). Indeed, the court offered a more lenient sentencing promise than that proposed by the People and recommended by the Department of Probation. Accordingly, the County Court Judge did not improvidently exercise his discretion in declining to recuse himself.The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contention is without merit.BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Steven A. Saporito, ap, v. Jennifer K. Ward, res — (Docket No. V-24414-13)In a custody proceeding brought by the father of the subject child, the father appeals from an order of the Family Court, Kings County (William Franc Perry, J.), dated January 13, 2017. The order, upon, inter alia, the father’s failure to appear at a continued hearing, awarded the parties joint legal custody of the subject child and maintained the parties’ existing parenting access schedule.ORDERED that the appeal is dismissed, without costs or disbursements.“No appeal lies from an order made upon the default of the appealing party” (Matter of Layne v. Wyllie, 277 AD2d 239, 239; see CPLR 5511; Matter of Graham v. Rawley, 140 AD3d 765, 766-767; Matter of Zulme v. Maehrlein, 133 AD3d 608, 608). ”The proper procedure” is for the defaulting party “to move to vacate his or her default and, if necessary, appeal from the order deciding that motion” (Matter of Smith v. Richards, 286 AD2d 393, 393; see Matter of Renner v. Costigan, 125 AD3d 664, 665; Matter of Geraldine Rose W., 196 AD2d 313, 315-318). Contrary to the father’s contention, his failure to appear at the continued hearing, under the circumstances presented, constituted a default. The father’s appeal from the order entered upon, inter alia, his default in appearing must, therefore, be dismissed (see CPLR 5511).MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Jennifer K. Ward, res, v. Steven A. Saporito, ap — (Docket No. V-27232-13)In a custody proceeding brought by the mother of the subject child, the father appeals from an order of the Family Court, Kings County (William Franc Perry, J.), dated January 13, 2017. The order, upon, inter alia, the father’s failure to appear at a continued hearing, awarded the parties joint legal custody of the subject child and maintained the parties’ existing parenting access schedule.ORDERED that the appeal is dismissed, without costs or disbursements.“No appeal lies from an order made upon the default of the appealing party” (Matter of Layne v. Wyllie, 277 AD2d 239, 239; see CPLR 5511; Matter of Graham v. Rawley, 140 AD3d 765, 766-767; Matter of Zulme v. Maehrlein, 133 AD3d 608, 608). ”The proper procedure” is for the defaulting party “to move to vacate his or her default and, if necessary, appeal from the order deciding that motion” (Matter of Smith v. Richards, 286 AD2d 393, 393; see Matter of Renner v. Costigan, 125 AD3d 664, 665; Matter of Geraldine Rose W., 196 AD2d 313, 315-318). Contrary to the father’s contention, his failure to appear at the continued hearing, under the circumstances presented, constituted a default. The father’s appeal from the order entered upon, inter alia, his default in appearing must, therefore, be dismissed (see CPLR 5511).MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.US Bank, N.A., res, v. Clement Morrison, etc. appellants def — (Index No. 30754/10)Appeal by the defendants Clement Morrison and Vyanne McBean from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered April 8, 2015. The order denied their motion, inter alia, pursuant to CPLR 5015(a) to vacate an order of the same court dated June 19, 2012, which granted the plaintiff’s motion, among other things, for summary judgment on the complaint and for the appointment of a referee to compute the amounts due to it, and denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order entered April 8, 2015, is affirmed, with costs.The plaintiff commenced this action in 2010 against Clement Morrison and Vyanne McBean (hereinafter together the defendants), among others, to foreclose a mortgage. In an order dated June 19, 2012, the Supreme Court granted the plaintiff’s motion, inter alia, for summary judgment on the complaint, and denied the defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them. Subsequently, in an order dated March 25, 2013, the court denied the defendants’ motion for leave to renew and reargue. Thereafter, by decision and order dated September 10, 2014, this Court affirmed the order dated June 19, 2012, and affirmed the order dated March 25, 2013, insofar as reviewed (see US Bank, N.A. v. Morrison, 120 AD3d 1223).In December 2014, the defendants moved, inter alia, pursuant to CPLR 5015(a) to vacate the order dated June 19, 2012, arguing, among other things, that the plaintiff lacked standing to maintain this foreclosure action. In the order appealed from, the Supreme Court denied the motion on the ground that it was barred by the doctrine of the law of the case. The defendants appeal.There is no merit to the plaintiff’s contention that the defendants failed to assemble a sufficient record for this Court to reach an informed decision on the merits and provide meaningful appellate review of the order appealed from (see Baumann v. Hanover Community Bank, 100 AD3d 814, 815).“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” (J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 AD3d 809, 809; see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 134 AD3d 683, 684; Quinn v. Hillside Dev. Corp., 21 AD3d 406, 407). In the decision and order dated September 10, 2014, which, inter alia, affirmed the order dated June 19, 2012, this Court determined that the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating, among other things, an absence of triable issues of fact concerning its standing, and that, in opposition, the defendants failed to raise a triable issue of fact (see US Bank, N.A. v. Morrison, 120 AD3d at 1224-1225). Therefore, review of the defendants’ contentions relating to the plaintiff’s alleged lack of standing to maintain this foreclosure action is barred by the doctrine of law of the case, as this Court has already decided this exact issue on a prior appeal (see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 134 AD3d at 684; Matter of Fulmer v. Buxenbaum, 109 AD3d 822, 823). Moreover, the defendants did not demonstrate any extraordinary circumstances warranting a departure from the prior determination on this issue (see Quinn v. Hillside Dev. Corp., 21 AD3d at 407; Carole A. v. City of New York, 169 AD2d 800, 801).The defendants’ remaining contentions are either without merit or not properly before this Court.Accordingly, the Supreme Court properly denied the defendants’ motion, inter alia, pursuant to CPLR 5015(a) to vacate the order dated June 19, 2012.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.US Bank, N.A., res, v. Clement Morrison, etc. appellants def — (Index No. 30754/10)Appeal by the defendants Clement Morrison and Vyanne McBean from an order of the Supreme Court, Queens County (Denis J. Butler, J.), dated October 6, 2015. The order, insofar as appealed from, denied that branch of their motion which was for recusal.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.In 2010, the plaintiff commenced this action against Clement Morrison and Vyanne McBean (hereinafter together the defendants), among others, to foreclose a mortgage. In May 2015, the defendants moved, inter alia, for recusal, alleging that the Supreme Court was biased against them in favor of the plaintiff and its attorney. In an order dated October 6, 2015, the Supreme Court denied that branch of the motion. The defendants appeal.“Absent a legal disqualification under Judiciary Law §14, a court is the sole arbiter [of its] recusal, and its decision is a matter of discretion and personal conscience” (Aebly v. Lally, 140 AD3d 677, 678; see Prince v. Prince, 134 AD3d 1008; Vogelgesang v. Vogelgesang, 71 AD3d 1131). Here, the defendants failed to set forth any proof of bias or prejudice to warrant the recusal. Accordingly, the Supreme Court providently exercised its discretion in denying the subject branch of the defendants’ motion (see Prince v. Prince, 134 AD3d at 1008; Vogelgesang v. Vogelgesang, 71 AD3d at 1131).CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.US Bank, N.A., res, v. Clement Morrison, etc. appellants def — (Index No. 30754/10)Appeal by the defendants Clement Morrison and Vyanne McBean from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered February 16, 2016. The order denied their motion, inter alia, pursuant to CPLR 5015(a), in effect, to vacate prior orders decided against them and to dismiss the complaint insofar as asserted against them.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action in 2010 against Clement Morrison and Vyanne McBean (hereinafter together the defendants), among others, to foreclose a mortgage. In an order dated September 27, 2011, the Supreme Court denied the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for lack of standing, and denied their separate motion for leave to renew and reargue their prior motion, in effect, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against McBean for lack of personal jurisdiction. Subsequently, in an order dated June 19, 2012, the court granted the plaintiff’s motion, inter alia, for summary judgment on the complaint, and denied the defendants’ cross motion for summary judgment dismissing the complaint insofar as asserted against them. In an order dated March 25, 2013, the court denied the defendants’ motion for leave to renew and reargue. Thereafter, this Court, in a decision and order dated September 10, 2014, affirmed the order dated September 27, 2011, insofar as reviewed (see US Bank, N.A. v. Morrison, 120 AD3d 1222), and in a separate decision and order, also dated September 10, 2014, affirmed the order dated June 19, 2012, and affirmed the order dated March 25, 2013, insofar as reviewed (see id.).In December 2014, the defendants moved, inter alia, pursuant to CPLR 5015(a) to vacate the order dated June 19, 2012. In an order entered April 8, 2015, the Supreme Court denied the motion on the ground that it was barred by the doctrine of law of the case. This Court, in a companion appeal, is affirming the order entered April 8, 2015 (see US Bank, N.A. v. Morrison, __ AD3d __ [Appellate Division Docket No. 2015-06578; decided herewith]). Subsequently, in an order dated October 6, 2015, the Supreme Court denied that branch of the defendant’s motion which was for recusal. This Court, in another companion appeal, is affirming that order insofar as appealed from (see US Bank v. Morrison, __ AD3d __ [Appellate Division Docket No. 2015-12250; decided herewith]).In August 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a), in effect, to vacate the prior orders decided against them and to dismiss the complaint insofar as asserted against them. In an order entered February 16, 2016, the Supreme Court denied the motion. The defendants appeal, and we affirm.Contrary to the plaintiff’s contention, the record is adequate to enable this Court to render an informed decision on the merits (cf. Block 6222 Constr. Corp. v. Sobhani, 84 AD3d 1292).“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” (J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 AD3d 809, 809; see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 134 AD3d 683, 684; Quinn v. Hillside Dev. Corp., 21 AD3d 406, 407). Therefore, review of the defendants’ contentions relating to the plaintiff’s alleged lack of standing and the alleged lack of personal jurisdiction over McBean is barred by the doctrine of law of the case, as this Court has already decided these exact issues on prior appeals (see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 134 AD3d at 684; Matter of Fulmer v. Buxenbaum, 109 AD3d 822, 823). Moreover, the defendants did not demonstrate any extraordinary circumstances warranting a departure from the prior determination on these issues (see Quinn v. Hillside Dev. Corp., 21 AD3d at 407; Carole A. v. City of New York, 169 AD2d 800, 801).The defendants’ remaining contentions are without merit.Accordingly, the Supreme Court properly denied the defendants’ motion.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Metropolitan Lofts of NY, LLC, ap, v. Metroeb Realty 1, LLC res — (Index No. 503441/12)In an action to recover damages for breach of contract, for specific performance of a contract for the sale of real property, and for declaratory relief, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County (Lawrence Knipel, J.), dated June 6, 2014, as, upon a decision of the same court (Ann T. Pfau, J.), dated May 6, 2014, made after a nonjury trial, dismissed the complaint and declared that a contract executed on May 4, 2012, between the plaintiff and the defendant Metroeb Realty 1, LLC, for the sale of the subject real property is not valid and enforceable.ORDERED that the judgment is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with one bill of costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings to determine what remedy is available to the plaintiff, and thereafter, for the entry of an amended judgment, inter alia, declaring that the contract executed on May 4, 2012, between the plaintiff and the defendant Metroeb Realty 1, LLC, for the sale of the subject real property is valid and enforceable.On October 22, 2012, the plaintiff commenced this action against the defendant Metroeb Realty 1, LLC (hereinafter Metroeb). The plaintiff sought to recover damages for breach of contract, specific performance of a contract for the sale of real property, and declaratory relief. The plaintiff alleged that on May 4, 2012, the parties entered into a contract in which Metroeb agreed to sell the subject property to the plaintiff for the sum of $30 million, but that Metroeb thereafter entered into a contract to sell the property to a different purchaser. Metroeb counterclaimed for a declaration that the purported contract was not valid and enforceable. RedSky Capital, LLC (hereinafter RedSky), which entered into the subsequent contract to purchase the property, intervened in the action as a defendant, asserting, inter alia, a counterclaim against the plaintiff for a declaration that the plaintiff’s purported contract with Metroeb is not valid and enforceable. The action proceeded to a nonjury trial.The evidence at trial established that on May 3, 2012, following various negotiations regarding the sale of the property, Sam Sprei, acting as agent of the plaintiff, presented a contract of sale for the purchase of the property to Metroeb’s principal, Aaron Berger. The contract bore the indicia of a formal contract for the sale of real property in that it was, inter alia, 22 pages long and annexed numerous schedules, including the metes and bounds description for the property, an agreement for the assignment of leases and security deposits for existing tenants, and a survey of the property. Additionally, the contract was signed by the plaintiff’s principal, Isaac Jacobowitz, on behalf of the plaintiff. Sprei also gave Berger two down payment checks from the plaintiff totaling $3 million, the required down payment under the terms of the contract. Berger retained the checks, but never presented them for payment. On May 4, 2012, Sprei and Berger met at Berger’s office and negotiated and made numerous handwritten changes to the contract. Each change was initialed by Berger and Sprei. Further, each page of the contract was initialed at the bottom by Berger and Sprei, and Berger signed the contract on the signature line as president of Metroeb.The contract provided that the closing would take place on July 9, 2013, with time being of the essence. Berger testified that it was his understanding that the contract would be sent to an attorney to be put in “proper form,” and then signed. On May 7, 2012, a copy of a $3 million certified check intended to replace the two prior checks was emailed to Berger. However, this check was never delivered to Berger and was later redeposited by Jacobowitz into his account. After the signing of the contract, Jacobowitz and Berger continued to negotiate aspects of the sale, but the parties never agreed to the changes or signed a new contract.On May 8, 2012, four days after signing the contract to sell the property to the plaintiff, Berger received an offer from RedSky to purchase the property for $32 million. On July 20, 2012, Metroeb and RedSky entered into a contract of sale for the property with a purchase price of $32.5 million. Notably, after the contract with RedSky was signed, Berger continued to negotiate and meet with Jacobowitz, to whom he sent copies of leases and plans for the building on May 17, 2012. During this period of time, the plaintiff arranged for $20 million in financing through a lender. Jacobowitz testified that the balance of the purchase price would be funded through the plaintiff’s cash holdings.On August 20, 2012, Berger tendered to the plaintiff a proposed agreement for the “Termination of Contract of Sale,” dated July 26, 2012, which the plaintiff did not sign. On August 20, 2012, Berger contacted Chase Bank and was informed that the plaintiff’s down payment checks were “not good at present.” By letter dated August 21, 2012, Metroeb informed the plaintiff that it was cancelling the contract because the account on which the checks were drawn did not contain sufficient funds. Jacobowitz testified that the funds had been moved from that checking account to an interest-bearing account, and that sufficient funds would be transferred to the account to cover the checks when they were presented for payment. Jacobowitz testified that as of “the intended closing date under the contract,” the plaintiff had the funds to close and was ready, willing, and able to perform.In a decision after trial dated May 6, 2014, the Supreme Court determined that the plaintiff and Metroeb had not come to a meeting of the minds on May 4, 2012, which the court found was evidenced by Berger and Jacobowitz’s continuing negotiations after that date. Accordingly, by judgment dated June 6, 2014, the Supreme Court, inter alia, dismissed the complaint and declared that the May 4, 2012, contract between the plaintiff and Metroeb was not valid and enforceable. Further, the judgment directed that Metroeb shall convey the property to RedSky within 90 days. The plaintiff appeals from stated portions of the judgment, and we reverse the judgment insofar as appealed from.“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” (Palombo Group v. Poughkeepsie City Sch. Dist., 125 AD3d 620, 621 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499).Contrary to the Supreme Court’s determination, a complete and enforceable contract was formed on May 4, 2012, when Berger executed the contract of sale agreeing to sell the property to the plaintiff. “[C]ourts look to the basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract” (Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 NY2d 584, 589). Although Berger testified that he expected that a final contract would be signed after it had been put in “proper form” by an attorney, “the existence of a binding contract is not dependent on the subjective intent of [the parties]” (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 NY2d 397, 399). ”In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” (id. at 399). Notably, the May 4, 2012, contract contains all of the essential terms of a contract for the sale of real property, designated the parties, and identified and described the subject matter of the contract (see Piller v. Marsam Realty 13th Ave., LLC, 136 AD3d 773, 774). The contract was signed by Berger and Jacobowitz, and all changes to the contract were initialed by Sprei, who was acting as agent for the plaintiff, and Berger. Moreover, the contract contained no provision indicating that an additional signed agreement would be necessary to create a binding agreement (see 1-2 Corbin on Contracts §2.9 [2017]; cf. Durable, Inc. v. Twin County Grocers Corp., 839 F Supp 257, 260 [SD NY]) and, even where the parties “anticipat[e] that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement” (Wronka v. GEM Community Mgt., 49 AD3d 869, 871; see Maccioni v. Guzman, 145 AD2d 415, 416).Metroeb’s contention, in the alternative, that the plaintiff breached the contract because there were insufficient funds in the plaintiff’s account to cover the down payment checks on August 20, 2012, is without merit. The contract provided Metroeb with the option to cancel the contract if the down payment checks “shall fail of collection in due course.” However, it was undisputed that Metroeb never presented the checks for payment and, thus, the option to terminate under this provision was not triggered (see Hackal v. Adler, 234 AD2d 341, 342).The Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion to conform its complaint to the proof at trial (see CPLR 3025[c]). ”[A]bsent prejudice, courts are free to permit amendment even after trial” (Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 411). ”The burden of establishing prejudice is on the party opposing the amendment” (id. at 411). ”Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” (Loomis v. Civetta Corinno Constr. Corp., 54 NY2d 18, 23; see Kimso Apts., LLC v. Gandhi, 24 NY3d at 411). Here, in opposition to the plaintiff’s motion, the defendants failed to show that the amendment would hinder the preparation of their cases or prevent them from taking some measure in support of their positions at trial and, therefore, the plaintiff’s motion to conform its complaint to the proof should have been granted.Finally, RedSky argues on appeal that this Court may not grant specific performance to the plaintiff because, after judgment was entered, the property was transferred to it as a good faith purchaser for value (see e.g. Da Silva v. Musso, 76 NY2d 436). However, this issue is raised for the first time on appeal, involves matter dehors the record, and is not brought up for review by the plaintiff’s appeal from the judgment (see CPLR 5501[a]).Since the Supreme Court did not reach the issue of the appropriate remedy for the plaintiff, we remit the matter to the Supreme Court, Kings County, for further proceedings to determine what remedy is available to the plaintiff.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.MATTER of Willie Smith, pet, v. Anthony J. Annucci, etc., res — (Index No. 673/16)Willie Smith, Attica, NY, petitioner pro se.Eric T. Schneiderman, Attorney General, New York, NY (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.Proceeding pursuant to CPLR article 78 to review so much of a determination of Donald Venettozzi, Director of Special Housing/Inmate Disciplinary Program, on behalf of Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision, dated January 14, 2016, as affirmed so much of a determination of a hearing officer dated October 13, 2015, made after a tier III disciplinary hearing, as found the petitioner guilty of violating Institutional Rules of Conduct rules 114.10 and 180.11 (7 NYCRR 270.2[B][15][i]; [26][ii]) and imposed penalties.ADJUDGED that the petition is granted, without costs or disbursements, so much of the determination dated January 14, 2016, as affirmed so much of the determination dated October 13, 2015, as found the petitioner guilty of violating Institutional Rules of Conduct rules 114.10 and 180.11 (7 NYCRR 270.2[B][15][i]; [26][ii]) is annulled, the penalties imposed are vacated, those charges are dismissed, and the respondent is directed to expunge all references to those findings from the petitioner’s institutional record.While the petitioner was an inmate at the Green Haven Correctional Facility, he was charged with violating several disciplinary rules. The inmate misbehavior report alleged that the petitioner was found to have smuggled a typewritten letter to another inmate via an envelope addressed from the prison’s Nation of Islam “Chaplin’s Office.” The envelope contained the letter among a number of religious publications. The letter, which was not addressed to a named individual, but only to “brother,” included inspirational religious comments by the petitioner. At a tier III disciplinary hearing, the petitioner and the two Nation of Islam chaplains assigned to the facility testified that the petitioner was the inmate facilitator for the prison’s Nation of Islam office and that his responsibilities included sending materials to other inmates and corresponding with them on behalf of the chaplains. While neither of the chaplains could recall seeing the specific letter at issue, one acknowledged that typed notes might be sent with the other materials and he opined that there was nothing inappropriate in the note at issue. The other chaplain stated that because he was not at the facility on a daily basis, he relied upon the petitioner to address inmate requests for reading materials and the petitioner would include inspirational messages with the other materials. At the hearing, the correction officer who filed the inmate misbehavior report against the petitioner was unable to identify the particular policy concerning facility correspondence procedures that he believed the petitioner had violated.The hearing officer found the petitioner guilty of violating, inter alia, prison disciplinary rule 114.10, which prohibits smuggling (see 7 NYCRR 270.2[B][15][i]), and rule 180.11, which requires compliance with guidelines and instructions given by staff regarding facility correspondence procedures (see 7 NYCRR 270.2[B][26][ii]). Upon the petitioner’s administrative appeal, the penalty was reduced, but the hearing officer’s determination of guilty was affirmed. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination.In reviewing a prison disciplinary determination, a court’s review of the factual findings is limited to ascertaining whether the determination is supported by substantial evidence (see CPLR 7803[4]; Matter of Bottom v. Annucci, 26 NY3d 983, 984; People ex rel. Vega v. Smith, 66 NY2d 130, 139; Matter of Archer v. Annucci, 153 AD3d 919; Matter of Adamson v. Barto, 37 AD3d 597, 598). Substantial evidence “means 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; see Matter of Bottom v. Annucci, 26 NY3d at 984; People ex rel. Vega v. Smith, 66 NY2d at 139).The charges against the petitioner here were not supported by substantial evidence. Although the inmate misbehavior report charged failure to comply with and follow guidelines and instructions given by staff regarding facility correspondence procedures (see 7 NYCRR 270.2[B][26][ii]), it did not specify any particular guideline or instruction with which the petitioner had failed to comply. Further, the correction officer who authored the report could not identify the particular correspondence policy he believed the petitioner had violated. Accordingly, the finding that the petitioner violated rule 180.11 must be annulled (see 7 NYCRR 270.2[B][26][ii]; Matter of Hamlett v. Prack, 139 AD3d 728, 730; Matter of Adamson v. Barto, 37 AD3d at 598).In addition, the hearing evidence established that the petitioner, in his capacity as inmate facilitator for the prison’s Nation of Islam office, had duties including sending religious materials to other inmates from the Nation of Islam office, and neither the misbehavior report nor the testifying correction officer identified any regulation prohibiting the petitioner, in that capacity, from including the subject letter with the other materials. Accordingly, the finding that the petitioner violated rule 114.10 must also be annulled (see 7 NYCRR 270.2[B][15][i]; Matter of Adamson v. Barto, 37 AD3d at 598; Matter of Rand v. Herbert, 219 AD2d 878).AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.Metropolitan Lofts of NY, LLC, appellant-res, v. Metroeb Realty 1, LLC, res, RedSky Capital, LLC, res-res — (Index No. 503441/12)In an action to recover damages for breach of contract, for specific performance of a contract for the sale of real property, and for declaratory relief, the plaintiff appeals from (1) so much of an order of the Supreme Court, Kings County (Carolyn E. Demarest, J.), dated February 27, 2015, as granted the separate motions of the defendants, Metroeb Realty 1, LLC, and RedSky Capital, LLC, to recover damages, costs, and attorneys’ fees resulting from the issuance of a preliminary injunction, and granted the separate cross motions of the defendants for sanctions against the plaintiff, and (2) so much of a judgment of the same court dated March 12, 2015, as, upon the order, is in favor of the defendant Metroeb Realty 1, LLC, and against the plaintiff in the principal sum of $2,469,354.95 and in favor of the defendant RedSky Capital, LLC, and against the plaintiff in the principal sum of $222,211.70; and the defendant RedSky Capital, LLC, cross-appeals from (1) so much of the order as denied its motion to direct the plaintiff to replace an injunction bond with a cash undertaking and awarded it the sum of only $222,211.70 in damages, and (2) so much of the judgment as is in favor of it and against the plaintiff in the principal sum of only $222,211.70.ORDERED that the appeal and cross appeal from the order are dismissed; and it is further,ORDERED that the judgment is reversed, on the law and in the exercise of discretion, the separate motions of the defendants for damages, costs, and attorneys’ fees resulting from the issuance of a preliminary injunction and the separate cross motions of the defendants for sanctions against the plaintiff are denied, the motion of the defendant RedSky Capital, LLC, to direct the plaintiff to replace an injunction bond with a cash undertaking is denied as academic, and the order is modified accordingly; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal and cross appeal from the order must be dismissed because the right of direct appeal and cross appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the judgment (see CPLR 5501[a][1]).In light of our determination in Metropolitan Lofts of NY, LLC v. Metroeb Realty 1, LLC (__ AD3d __ [Appellate Division Docket No. 2014-05885; decided herewith]), that the contract between the plaintiff and the defendant Metroeb Realty 1, LLC (hereinafter Metroeb), was valid and enforceable, the motions by Metroeb and the defendant RedSky Capital, LLC (hereinafter RedSky), to recover damages, costs, and attorneys’ fees resulting from the issuance of a preliminary injunction should have been denied (see CPLR 3212[b]), the defendants’ separate cross motions for sanctions against the plaintiff should have been denied (see 22 NYCRR 130-1.1[c]), and RedSky’s motion to direct the plaintiff to replace an injunction bond with a cash undertaking should have been denied as academic.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Liberty Equity Restoration Corporation, plaintiff- res, v. Maeng-Soon Yun ap; Marissa LoPriore, as administrator of the estate of Frank LoPriore third-party defendants- res — (Index No. 70040/12)In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated December 23, 2015, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint and, in effect, denied those branches of their cross motion which were for summary judgment on their third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and for summary judgment on the issue of damages owed to them by the plaintiff and the third-party defendants.ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on the complaint, and substituting therefor a provision denying that branch of the motion, (2) by adding thereto a provision searching the record and awarding the defendants third-party plaintiffs summary judgment dismissing the complaint, and (3) by deleting the provision thereof, in effect, denying that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment on their third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants third-party plaintiffs payable by the respondents, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings to determine the amount of damages owed by the plaintiff and the third-party defendants to the defendants third-party plaintiffs in accordance herewith.In 2006, the defendants third-party plaintiffs, Maeng-Soon Yun and Kil-Chung Yun (hereinafter together the Yuns), who are husband and wife, purchased, using financing, a residential property located in Bedford. On August 1, 2011, Kil-Chung Yun entered into a lease agreement with the plaintiff, Liberty Equity Restoration Corporation (hereinafter Liberty Equity), granting Liberty Equity the right, as tenant, to occupy the subject premises for a one-year term ending on July 31, 2012. The amount of the monthly rent in the form lease was left blank. The third-party defendant Frank LoPriore was the president and principal of Liberty Equity. On March 28, 2012, Maeng-Soon Yun entered into a contract to sell the property to Liberty Equity for the sum of $25,000. On April 19, 2012, Maeng-Soon Yun executed a power of attorney authorizing Frank LoPriore to act as her agent with respect to real estate transactions, as well as claims and litigation. By letter dated July 30, 2012, the Yuns gave notice to Liberty Equity that they were cancelling the contract of sale, and requested that Liberty Equity, Frank LoPriore, and all affiliated persons vacate the premises immediately.On November 29, 2012, Liberty Equity commenced this action in the Supreme Court, Westchester County, against the Yuns for specific performance of the contract of sale or, in the alternative, to recover damages for breach of the contract of sale. The Yuns answered and asserted counterclaims, inter alia, to recover the value of Liberty Equity’s use and occupancy of the premises from the expiration of the lease until the conclusion of the matter. In addition, the Yuns commenced a third-party action against Frank LoPriore and Mary Ann LoPriore, inter alia, to recover the value of their use and occupancy of the premises. The Yuns also commenced a holdover proceeding against Liberty Equity in the North Castle Justice Court. The proceeding was removed from the North Castle Justice Court and consolidated with the action pending in the Supreme Court.The Yuns moved against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore for summary judgment awarding them possession of the subject premises and for summary judgment awarding them the value of the use and occupancy of the premises as of August 1, 2012. In an order dated August 28, 2013, the Supreme Court denied the Yuns’ motion. On appeal, in a decision and order dated June 10, 2015, this Court modified the order dated August 28, 2013, concluding that the Yuns were entitled to summary judgment awarding them possession of the premises and the value of the use and occupancy of the premises as of August 1, 2012, as against Liberty Equity (see Liberty Equity Restoration Corp. v. Maeng-Soon Yun, 129 AD3d 785, 786). However, concluding that issues of fact existed “as to the value of the use and occupancy of the subject premises,” this Court remitted the matter “to the Supreme Court, Westchester County, to determine the amount of damages owed to [the Yuns] by [Liberty Equity]” (id. at 786-787). Upon remittitur, the Supreme Court did not conduct proceedings to determine the amount of damages owed to the Yuns by Liberty Equity.By notice of motion dated September 3, 2015, Liberty Equity moved, inter alia, for summary judgment on its complaint seeking specific performance of the contract of sale or, in the alternative, damages for breach of contract. The Yuns opposed the motion and cross-moved, inter alia, for summary judgment on their third-party cause of action against Frank LoPriore and Mary Ann LoPriore to recover the value of their use and occupancy of the premises. The Yuns also cross-moved for summary judgment on the issue of damages against Liberty Equity, Frank LoPriore, and Mary Ann LoPriore, contending that they were entitled to damages in the amount of $7,200 per month. In an order dated December 23, 2015, the Supreme Court, inter alia, granted summary judgment to Liberty Equity on its causes of action for specific performance and alleging breach of contract. The court also, in effect, denied the Yuns’ cross motion. The Yuns appeal. Frank LoPriore died while this appeal was pending, and Marissa LoPriore, as administrator of his estate, was substituted in his place.Liberty Equity failed to establish its prima facie entitlement to judgment as a matter of law on its causes of action for specific performance and alleging breach of contract. The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages” (JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803; see Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 AD3d 122, 127). ”To prevail on a cause of action for specific performance of a contract for the sale of real property, a… purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law” (1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474, 475; see ADC Orange, Inc. v. Coyote Acres, Inc., 7 NY3d 484, 490; Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53, 62).Here, the evidence submitted by Liberty Equity in support of its motion established that Liberty Equity failed to perform its obligations under the parties’ agreements. During his deposition, Frank LoPriore acknowledged that there were oral agreements between the parties that governed the contract of sale, the lease, and the power of attorney, and that either he, an entity he controlled, or an investor was required to pay off the Yuns’ mortgage as part of the transaction. According to Frank LoPriore, the Yuns’ mortgage was going to be “resolved” under the parties’ agreement such that the Yuns would not be responsible for paying the mortgage after the closing. However, Frank LoPriore testified that he was unable to arrange for the payoff of the mortgage. Frank LoPriore also testified that the Yuns gave him a power of attorney for the purpose of negotiating with the holder of the Yuns’ mortgage, but he never successfully made contact with the mortgage holder. Under these circumstances, parol evidence and the parties’ course of dealing were admissible to supplement and interpret the terms of the parties’ agreements (see Hicks v. Bush, 10 NY2d 488, 491-494; see also Foot Locker, Inc. v. Omni Funding Corp. of Am., 78 AD3d 513, 515). Since Liberty Equity failed to establish that it performed its obligations under the parties’ agreements, that branch of its motion which was for summary judgment on the complaint alleging breach of contract and seeking specific performance should have been denied, regardless of the sufficiency of the Yuns’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Arista Real Estate Holdings, Inc. v. Kemalettin, 133 AD3d 696, 697-698). Since Frank LoPriore’s deposition testimony conclusively establishes that Liberty Equity failed to perform its obligations under the parties’ agreements, we search the record and award summary judgment to the Yuns dismissing Liberty Equity’s complaint alleging breach of contract and seeking specific performance.The Yuns established their prima facie entitlement to judgment as a matter of law on their third-party cause of action against Frank LoPriore and Mary Ann LoPriore to recover the value of their use and occupancy of the premises, as the record demonstrates that Frank LoPriore and Mary Ann LoPriore resided at the premises for a period of time after the lease expired (see Real Property Law §220; Magen David of Union Sq. v. 3 W. 16th St., LLC, 89 AD3d 24, 34; Gallagher v. Roman, 58 AD3d 800, 801-802; Chock Full O’Nuts Corp. v. NRP LLC I, 47 AD3d 189, 195-196). In opposition, Frank LoPriore and Mary Ann LoPriore failed to raise a triable issue of fact.Since issues of fact remain as to the value of the use and occupancy of the premises during the relevant time period, i.e., from the date the lease expired through the date on which the property was vacated, and since the Supreme Court did not conduct proceedings to determine the amount of damages owed to the Yuns by Liberty Equity, as directed by this Court in the prior decision and order (see Liberty Equity Restoration Corp. v. Maeng-Soon Yun, 129 AD3d at 786-787), the matter must be remitted to the Supreme Court for a determination of the value of the use and occupancy owed by Liberty Equity, the estate of Frank LoPriore, and Mary Ann LoPriore to the Yuns (see id. at 786; Lelekakis v. Kamamis, 41 AD3d 662, 665).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Liberty Equity Restoration Corporation, plaintiff- res, v. Pil Soung Park, ap; Marissa LoPriore, as administrator of the estate of Frank LoPriore third-party def-res — (Index No. 69828/12)In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Orazio R. Bellantoni, J.), dated December 23, 2015, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint and, in effect, denied those branches of his cross motion which were for summary judgment on his third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and for summary judgment on the issue of the damages owed to him by the plaintiff and the third-party defendants.ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on the complaint, and substituting therefor a provision denying that branch of the motion, (2) by adding thereto a provision searching the record and awarding the defendant third-party plaintiff summary judgment dismissing the complaint, and (3) by deleting the provision thereof, in effect, denying that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment his third-party cause of action to recover the value of the use and occupancy of the subject premises for a period beginning August 1, 2012, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant third-party plaintiff payable by the respondents, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings to determine the amount of damages owed by the plaintiff and the third-party defendants to the defendant third-party plaintiff in accordance herewith.In 2007, the defendant third-party plaintiff (hereinafter the defendant) purchased, using financing, a residential property located in Yonkers. On August 1, 2011, the defendant entered into a lease agreement with the plaintiff, Liberty Equity Restoration Corporation (hereinafter Liberty Equity), granting Liberty Equity the right, as tenant, to occupy the subject premises for a one-year term ending on July 31, 2012. The amount of the monthly rent in the form lease was left blank. The third-party defendant Frank LoPriore was the president and principal of Liberty Equity. On March 28, 2012, the defendant entered into a contract to sell the property to Liberty Equity for the sum of $25,000. On April 16, 2012, the defendant executed a power of attorney authorizing Frank LoPriore to act as his agent with respect to real estate transactions, as well as claims and litigation. By letter dated July 30, 2012, the defendant gave notice to Liberty Equity that he was cancelling the contract of sale, and requested that Liberty Equity vacate the premises immediately.On November 29, 2012, Liberty Equity commenced this action in the Supreme Court, Westchester County, against the defendant for specific performance of the contract of sale or, in the alternative, to recover damages for breach of the contract of sale. The defendant answered and asserted counterclaims, inter alia, to recover the value of Liberty Equity’s use and occupancy of the premises from the expiration of the lease until the conclusion of the matter. In addition, the defendant commenced a third-party action against Frank LoPriore, Jamil Naber, and Pascal Naber, inter alia, to recover the value of their use and occupancy of the premises. The defendant also commenced a holdover proceeding against Liberty Equity in the Yonkers City Court. The proceeding was removed from the Yonkers City Court and consolidated with the action pending in the Supreme Court.The defendant moved, inter alia, against Liberty Equity for summary judgment awarding him possession of the subject premises and for summary judgment awarding him the value of the use and occupancy of the premises as of August 1, 2012. In an order dated August 28, 2013, the Supreme Court denied the defendant’s motion. On appeal, in a decision and order dated June 10, 2015, this Court modified the order dated August 28, 2013, concluding that the defendant was entitled to summary judgment awarding him possession of the subject premises and the value of the use and occupancy of the subject premises as of August 1, 2012, as against Liberty Equity (see Liberty Equity Restoration Corp. v. Pil Soung Park, 129 AD3d 787, 788). However, concluding that issues of fact existed as to “the value of Liberty Equity’s use and occupancy of the subject premises,” this Court remitted the matter to the Supreme Court, Westchester County, to determine the amount of damages owed to the defendant by Liberty Equity (id. at 788-789). Upon remittitur, the Supreme Court did not conduct proceedings to determine the amount of damages owed to the defendant by Liberty Equity.By notice of motion dated September 3, 2015, Liberty Equity moved for summary judgment on its complaint seeking specific performance of the contract of sale or, in the alternative, damages for breach of contract. The defendant opposed the motion and cross-moved, inter alia, for summary judgment on his third-party cause of action against Frank LoPriore, Jamil Naber, and Pascal Naber to recover the value of their use and occupancy of the premises. The defendant also moved for summary judgment on the issue of damages against Liberty Equity, Frank LoPriore, Jamil Naber, and Pascal Naber, contending that he was entitled to use and occupancy in the amount of $4,000 per month. In an order dated December 23, 2015, the Supreme Court, inter alia, granted summary judgment to Liberty Equity on its causes of action for specific performance of the contract of sale and alleging breach of contract. The court also, in effect, denied the defendant’s cross motion. The defendant appeals. Frank LoPriore died while this appeal was pending, and Marissa LoPriore, as administrator of his estate, was substituted in his place.Liberty Equity failed to establish its prima facie entitlement to judgment as a matter of law on its causes of action for specific performance of the contract of sale and alleging breach of contract. The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages” (JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803; see Elisa Dreier Reporting Corp. v. Global NAPS Networks, Inc., 84 AD3d 122, 127). ”To prevail on a cause of action for specific performance of a contract for the sale of real property, a… purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law” (1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474, 475; see ADC Orange, Inc. v. Coyote Acres, Inc., 7 NY3d 484, 490; Cipriano v. Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53, 62).Here, the evidence submitted by Liberty Equity in support of its motion established that Liberty Equity failed to perform its obligations under the parties’ agreements. During his deposition, Frank LoPriore acknowledged that there were oral agreements between the parties that governed the contract of sale, the lease, and the power of attorney, and that either he, an entity he controlled, or an investor was required to pay off the defendant’s mortgage as part of the transaction. According to Frank LoPriore, the defendant’s mortgage was going to be “resolved” under the parties’ agreement such that the defendant would not be responsible for paying the mortgage after the closing. However, Frank LoPriore testified that he was unable to arrange for the payoff of the mortgage. Frank LoPriore also testified that the defendant gave him a power of attorney for the purpose of negotiating with the holder of the defendant’s mortgage, but he never successfully made contact with the mortgage holder. Under these circumstances, parol evidence and the parties’ course of dealing were admissible to supplement and interpret the terms of the parties’ agreements (see Hicks v. Bush, 10 NY2d 488, 491-494; see also Foot Locker, Inc. v. Omni Funding Corp. of Am., 78 AD3d 513, 515). Since Liberty Equity failed to establish that it performed its obligations under the parties’ agreements, that branch of its motion which was for summary judgment on its complaint alleging breach of contract and seeking specific performance should have been denied, regardless of the sufficiency of the defendant’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Arista Real Estate Holdings, Inc. v. Kemalettin, 133 AD3d 696, 697-698). Since Frank LoPriore’s deposition testimony conclusively establishes that Liberty Equity failed to perform its obligations under the parties’ agreements, we search the record and award summary judgment to the defendant dismissing Liberty Equity’s complaint alleging breach of contract and seeking specific performance.The defendant established his prima facie entitlement to judgment as a matter of law on his third-party cause of action against Frank LoPriore, Jamil Naber, and Pascal Naber to recover the value of their use and occupancy of the premises. Frank LoPriore testified at his deposition that he subleased the property to Jamil Naber and Pascal Naber and that they resided on the property for over two years (see Real Property Law §220; Magen David of Union Sq. v. 3 W. 16th St., LLC, 89 AD3d 24, 34; Gallagher v. Roman, 58 AD3d 800, 801-802; Chock Full O’Nuts Corp. v. NRP LLC I, 47 AD3d 189, 195-196). In opposition, Frank LoPriore, Jamil Naber, and Pascal Naber failed to raise a triable issue of fact.Since issues of fact remain as to the value of the use and occupancy of the premises during the relevant time period, i.e., from the date the lease expired through the date on which the property was vacated, and since the Supreme Court did not conduct proceedings to determine the amount of damages owed to the defendant by Liberty Equity, as directed by this Court in the prior decision and order (see Liberty Equity Restoration Corp. v. Pil Soung Park, 129 AD3d at 788-789), the matter must be remitted to the Supreme Court for a determination of the value of the use and occupancy owed by Liberty Equity, Jamil Naber, Pascal Naber, and the estate of Frank LoPriore to the defendant (see id. at 788; Lelekakis v. Kamamis, 41 AD3d 662, 665).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Leventhal, Lasalle and Brathwaite Nelson, JJ.Samir Gad, res, v. Howard L. Sherman, ap — (Index No. 54710/16)Howard L. Sherman, Ossining, NY, appellant pro se.Debra Palazzo, Hawthorne, NY, for respondent.In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated February 28, 2017, which denied his motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.ORDERED that the order is affirmed, with costs.In an order dated June 18, 2013, the Supreme Court, Westchester County, assigned the defendant to represent the plaintiff in an underlying matrimonial action commenced against the plaintiff by his now former wife (hereinafter the wife). On April 11, 2014, the parties to the matrimonial action appeared with their attorneys before the court and agreed to resolve all issues pending in the action. As a result, the wife’s counsel read an outline of the parties’ agreement into the record, which included the understanding that a formal written stipulation would follow. In addition, both the plaintiff and the wife, in response to questions from the court, indicated that they understood the terms and conditions as placed on the record and that they were satisfied with their legal representation. Thereafter, in May 2014, the plaintiff and the wife signed the written stipulation of settlement (hereinafter the stipulation).Regarding custody of the parties’ two minor children, the wife’s counsel stated in court that, pursuant to the parties’ outline of the agreement, the wife would have “primary physical custody of the children” and the plaintiff would have access time. However, Article IV of the stipulation stated that the wife was to have “primary physical custody and legal custody.” Regarding child support, both the April 2014 outline of the agreement and the subsequent stipulation provided, inter alia, that the plaintiff’s pro rata share of the combined parental income was only 13 percent, and that his child support payments were to be paid in advance in one lump sum payment from his share of the equity in the marital residence. Despite the plaintiff’s nominal income, he was also required to pay in advance 50 percent of the children’s college expenses.In April 2016, the plaintiff commenced this legal malpractice action against the defendant by the filing of a summons with notice. On or about September 21, 2016, a verified complaint was served upon the defendant. In late September 2016, the defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint, arguing that the transcript from the April 2014 court appearance conclusively established a defense as a matter of law. The plaintiff opposed the motion, arguing, inter alia, that the transcript from the April 2014 court appearance did not represent the parties’ final agreement as set forth in the subsequent stipulation. The Supreme Court denied the defendant’s motion, and the defendant appeals.“‘A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’” (Schiff v. Sallah Law Firm, P.C., 128 AD3d 668, 669, quoting Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; see Katz v. Herzfeld & Rubin, P.C., 48 AD3d 640, 641).“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996). ”‘A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law’” (Feldshteyn v. Brighton Beach 2012, LLC, 153 AD3d 670, 670, quoting Sabre Real Estate Group, LLC v. Ghazvini, 140 AD3d 724, 724; see Hoeg Corp. v. Peebles Corp., 153 AD3d 607; 4777 Food Servs. Corp. v. Anthony P. Gallo, P.C., 150 AD3d 1054, 1055-1056).Here, the documentary evidence submitted by the defendant, consisting of the transcript from the April 2014 court appearance, failed to utterly refute the plaintiff’s allegations of malpractice, thereby failing to conclusively establish a defense as a matter of law in this legal malpractice action (see Prott v. Lewin & Baglio, LLP, 150 AD3d 908, 910; Palmieri v. Biggiani, 108 AD3d 604, 607-608).The defendant’s remaining contention is without merit.Accordingly, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.MATTER of Evan Marshall, ap, v. Dina Simon, etc. res — (Index No. 12266/15)Evan Marshall, Brooklyn, NY, appellant pro se.In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Correction dated June 12, 2015, which terminated the petitioner’s probationary employment as a correction officer, the petitioner appeals from a judgment of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered May 16, 2016, which denied the petition and dismissed the proceeding.ORDERED that the judgment is affirmed, without costs or disbursements.The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the New York City Department of Correction which terminated his probationary employment as a correction officer. The petitioner alleged, among other things, that his probationary period had ended prior to his termination, and that he was therefore entitled to certain protections under the Civil Service Law, which were not provided. In the judgment appealed from, the Supreme Court denied the petition and dismissed the proceeding.A probationary employee may “be dismissed for almost any reason, or for no reason at all” (Matter of Venes v. Community School Bd. of Dist. 26, 43 NY2d 520, 525; see Matter of Duncan v. Kelly, 9 NY3d 1024, 1025; Matter of Swinton v. Safir, 93 NY2d 758, 762-763; Matter of Mathis v. New York State Dept. of Correctional Servs., 81 AD3d 1435, 1436). ”The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law” (Matter of Lane v. City of New York, 92 AD3d 786, 786; see Matter of Johnson v. County of Orange, 138 AD3d 850, 851).An employee’s probationary term may be extended by the number of days that the probationary employee does not perform the duties of the position (see 4 NYCRR 4.5[g]; Matter of Beck v. Walker, 286 AD2d 996, 996-997; Matter of Sheffield v. Howe, 223 AD2d 544, 544-545; see also Personnel Rules and Regs of City of New York [55 RCNY] §5.2.8; NYC Dept of Corr Rule 3.30.020[b]). ”The purpose of excluding from the probationary term periods during which a probationer is not at work performing his or her duties is not punitive, but rather is the same as that underlying a probationary term in the first instance” (Tomlinson v. Ward, 110 AD2d 537, 538, affd 66 NY2d 771). ”It is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office” (id. at 538). ”The period should be measured by the number of days a probationer is actually working at the job” (id.).Here, the record demonstrates that the petitioner’s probationary period was properly extended for 25 days to reflect his absences from work (see 4 NYCRR 4.5[g]; Personnel Rules and Regs of City of NY [55 RCNY] §5.2.8; NYC Dept of Corr Rule 3.30.020[b]; see also Matter of Garcia v. Bratton, 90 NY2d 991, 993-994; Matter of Smith v. New York City Dept. of Correction, 292 AD2d 198, 198). The petitioner’s termination therefore occurred while he was a probationary employee (see Matter of Ortiz v. Manhattan Psychiatric Ctr., 27 AD3d 310, 310; Matter of Skidmore v. Abate, 213 AD2d 259, 259-260; Matter of Rivoli v. Stern, 160 AD2d 601; Tomlinson v. Ward, 110 AD2d at 538). Since the petitioner did not demonstrate, or even adequately allege, that he was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of Johnson v. County of Orange, 138 AD3d at 851; Matter of Lane v. City of New York, 92 AD3d at 786), the Supreme Court properly denied the petition and dismissed the proceeding.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Rivera, J.P.; Chambers, Roman and Iannacci, JJ.PEOPLE, etc., res, v. Joseph P. Gallo-Kappus, ap — (S.C.I. Nos. 13V/15, 205/14)Appeals by the defendant from two amended judgments of the County Court, Dutchess County (Edward T. McLoughlin, J.), both rendered August 10, 2016, revoking sentences of probation previously imposed, upon a finding that he violated conditions thereof, upon his admissions, and imposing sentences of imprisonment upon his previous convictions of criminal possession of stolen property in the fourth degree under Putnam County Superior Court Information No. 257/14 (reclassified as Dutchess County Superior Court Information No. 13V/15) and burglary in the third degree under Dutchess County Superior Court Information No. 205/14.ORDERED that the amended judgments are affirmed.The sentences of imprisonment imposed upon the defendant’s violations of conditions of probation were not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., CHAMBERS, ROMAN and IANNACCI, JJ., concur.By Balkin, J.P.; Lasalle, Barros and Connolly, JJ.PEOPLE, etc., res, v. Gideon Forde, ap — (Ind. No. 304/12)Gideon Forde, Auburn, NY, appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.Paul Skip Laisure, New York, NY (Joshua M. Levine of counsel), former appellate counsel.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated June 22, 2016 (People v. Forde, 140 AD3d 1085), modifying a judgment of the Supreme Court, Queens County, rendered April 30, 2013.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).BALKIN, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.PEOPLE, etc., res, v. Wayne Lafontant, ap — (Action No. 1)PEOPLE, etc., res, v. Melquan Lafontant, a/k/a Wayne Lafontant, ap — (Action No. 2)(Ind. Nos. 7828/14, 2567/15)Appeals by the defendant from two judgments of the Supreme Court, Kings County (William Miller, J.), both rendered September 18, 2015, convicting him of criminal possession of a weapon in the second degree under Indictment No. 7828/14 and criminal possession of a weapon in the second degree under Indictment No. 2567/15, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337; People v. McCray, 145 AD3d 740).The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentencing court improvidently exercised its discretion in declining to grant him youthful offender treatment (see People v. Pacherille, 25 NY3d 1021, 1024; People v. McCray, 145 AD3d 740; People v. Drammeh, 100 AD3d 650, 651; People v. Franko, 98 AD3d 525).DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Cohen, Duffy and Brathwaite Nelson, JJ.MATTER of Angelo Todd Merolla, pet, v. Jerry Garguilo, etc. respondents; Michael J. Meyer, individually, and on behalf of 148 South Emerson Associates, LLC, intervenor-res — Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Jerry Garguilo, a Justice of the Supreme Court, Suffolk County, to vacate, insofar as it relates to the petitioner, an order of the Supreme Court, Suffolk County, dated November 16, 2016, in an action entitled Meyer v. Meagher, pending under Index No. 068379/14, and to vacate a corrected order in that action dated June 15, 2017, and in the nature of prohibition to prohibit enforcement of the corrected order. Motion by the intervenor-respondent, inter alia, to dismiss the proceeding. By decision and order on motion of this Court dated November 6, 2017, that branch of the motion of the intervenor-respondent which is to dismiss the proceeding was held in abeyance and referred to the panel of Justices hearing the proceeding for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the proceeding, it isORDERED that the branch of the motion by the intervenor-respondent which is to dismiss the proceeding is granted to the extent that so much of the proceeding as relates to the order dated November 16, 2016, is dismissed as untimely (see CPLR 217[1]), without costs or disbursements, and that branch of the motion is otherwise denied; and it is further,ADJUDGED that the petition is otherwise denied and the proceeding is otherwise dismissed on the merits, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352). The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 NY2d 12, 16).The petitioner failed to demonstrate a clear legal right to the relief sought.MASTRO, J.P., COHEN, DUFFY and BRATHWAITE NELSON, JJ., concur.By Scheinkman, P.J.; Mastro, Rivera, Dillon and Sgroi, JJ.MATTER of David Clinton, a suspended attorney.Motion by David Clinton for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Clinton was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on August 3, 1983. By decision and order on application of this Court dated March 10, 2006, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts was authorized to institute and prosecute a disciplinary proceeding against Mr. Clinton and the issues raised were referred to the Honorable George Friedman, as Special Referee, to hear and report. By opinion and order of this Court dated August 12, 2008, Mr. Clinton was suspended from the practice of law for a period of five years, commencing September 12, 2008 (see Matter of Clinton, 54 AD3d 104). By decision and order on motion of this Court dated November 3, 2016, Mr. Clinton’s motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on Mr. Clinton’s character and fitness to practice law.Upon the papers filed in support of the motion and the papers filed in relation thereto, and the report of the Committee on Character and Fitness and the exhibits annexed thereto, it isORDERED that the motion is granted; and it is further,ORDERED that, effective immediately, David Clinton is reinstated as an attorney and counselor-at-law, and the Clerk of the Court is directed to restore the name of David Clinton to the roll of attorneys and counselors-at-law.SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and SGROI, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.PEOPLE, res, v. Tyshawn Kennedy, ap — Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Athea H. Bruffee, and Daniel Berman of counsel), for respondent.Appeal by the defendant from an order of the Supreme Court, Kings County (Elizabeth Foley, J.), dated March 21, 2016, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.ORDERED that the order is affirmed, without costs or disbursements.Contrary to the defendant’s contention, the Supreme Court properly assessed 10 points under risk factor 12 for his failure to accept responsibility for his criminal conduct. The defendant’s post-plea statement to the Probation Department in which he denied his guilt and claimed that he only pleaded guilty to avoid a trial provided clear and convincing evidence that the defendant had not genuinely accepted responsibility for his conduct (see People v. Alvarez, 153 AD3d 645, 645-646; People v. Ramos, 147 AD3d 1090, 1090-1091; People v. Murphy, 68 AD3d 832, 833).Further, contrary to the defendant’s contention, the Supreme Court properly assessed 30 points under risk factor 9 for the commission of a prior violent felony based upon his youthful offender adjudication (see People v. Francis, 137 AD3d 91, 97, affd __ NY3d__, 2018 NY Slip Op 01017 [2018]). The Risk Assessment Guidelines developed by the Board of Examiners of Sex Offenders “expressly provide that youthful offender adjudications are to be treated as ‘crimes’ for purposes of assessing the defendant’s likelihood of re-offending and danger to public safety” (People v. Moore, 1 AD3d 421, 421; see Sex Offender Registration Act [hereinafter SORA]: Risk Assessment Guidelines and Commentary at 6-7 [2006] [hereinafter Guidelines]; People v. Francis, 137 AD3d at 97).Moreover, the Supreme Court properly denied the defendant’s request for a downward departure. A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” (People v. Wyatt, 89 AD3d 112, 128; see People v. Gillotti, 23 NY3d 841; see also Guidelines at 4). ”At that point, the SORA court may exercise its discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender’s risk of reoffense and danger to the community” (People v. Wyatt, 89 AD3d at 128). Here, the defendant failed to identify a mitigating factor that is otherwise not adequately taken into account by the Guidelines (see People v. Wyatt, 89 AD3d at 128; see also People v. Watson, 112 AD3d 501, 503). In particular, the defendant failed to establish that his response to sex offender treatment was “exceptional” (People v. Washington, 84 AD3d 910, 911; see Guidelines at 17).Accordingly, the Supreme Court properly designated the defendant a level three sex offender.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.