Hand Down List decided on: April 11, 2018

By Leventhal, J.P.; Chambers, Maltese and Duffy, JJ.Debra Betz, etc., res, v. Arnold W. Blatt ap — (Index No. 58938/11)In an action, inter alia, to recover damages for legal malpractice, (1) the defendant Arnold W. Blatt appeals from so much of an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated December 4, 2014, as granted the plaintiff’s motion for leave to renew her opposition to that branch of his motion which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action, which had been granted in an order of the same court dated August 1, 2012, and, upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead that cause of action, (2) the defendant Anthony J. Pieragostini separately appeals from so much of the order dated December 4, 2014, as granted the plaintiff’s motion for leave to renew her opposition to that branch of his motion which was pursuant to CPLR 3211(a) to dismiss the tenth cause of action, which had been granted in the order dated August 1, 2012, and upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead that cause of action, and (3) the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, separately appeal from so much of the order dated December 4, 2014, as (a) granted the plaintiff’s motion for leave to renew her opposition to that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the thirteenth and fifteenth causes of action, which had been granted in the order dated August 1, 2012, and, upon renewal, in effect, vacated that portion of the order dated August 1, 2012, and granted leave to the plaintiff to replead those causes of action, and (b) denied their cross motion for an award of costs and sanctions.ORDERED that the order dated December 4, 2014, is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants appearing separately and filing separate briefs.The plaintiff commenced this action against the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano, LLP (hereinafter together the Sirignano defendants), Arnold W. Blatt, and Anthony J. Pieragostini, seeking to recover damages for legal malpractice, fraud, and other torts arising out of work they each performed relating to the administration of the estate of Carmelo Carbone (hereinafter the decedent) by the decedent’s brother Michaelangelo Carbone (hereinafter Carbone). The defendants represented Carbone and/or the estate in contested probate proceedings in Surrogate’s Court, including an accounting which was contested that was submitted by Carbone in those probate proceedings. In his will, the decedent left the bulk of his estate to his daughters, the plaintiff and Cristina Carbone-Lopez (see Betz v. Blatt, 116 AD3d 813, 814), and named his brother as executor (see id. at 814). After the contested probate proceedings, including the contested accounting, Carbone’s letters testamentary were suspended, he was surcharged in excess of $1,025,000 for his looting and mismanagement of the estate (see id. at 814), the court found him in contempt, and he fled the jurisdiction. On prior appeals from orders of the Surrogate’s Court, this Court upheld these sanctions (see id; Matter of Carbone, 101 AD3d 866, 869). The plaintiff was substituted as executor (see Betz v. Blatt, 116 AD3d at 814).In her capacity as executor, the plaintiff commenced this action, alleging, inter alia, legal malpractice by the defendants. Pieragostini and the Sirignano defendants separately moved pursuant to CPLR 3211(a) to dismiss the causes of action asserted against them. Blatt moved for summary judgment dismissing the causes of action asserted against him, but the Supreme Court deemed his motion to be a motion pursuant to CPLR 3211(a) (see id.). In an order dated August 1, 2012 (hereinafter the August 2012 order), the court granted those branches of the respective motions of Pieragostini, the Sirignano defendants, and Blatt which were to dismiss the causes of action alleging breach of fiduciary duty, fraud, and violation of Judiciary Law §487, and the causes of action seeking disgorgement and restitution insofar as asserted against each of them, but denied those branches of their motions which were to dismiss the legal malpractice causes of action (see id. at 814-815). On the plaintiff’s appeal and the Sirignano defendants’ cross appeal from the August 2012 order, this Court modified the August 2012 order by granting that branch of the Sirignano defendants’ motion which was to dismiss the eleventh cause of action, alleging legal malpractice against them, and denying that branch of their motion which was to dismiss the fourteenth cause of action, seeking disgorgement and restitution against them (see id. at 815-816). Insofar as is relevant to this appeal, this Court also affirmed the Supreme Court’s granting of those branches of the defendants’ respective motions which were to dismiss the fraud and Judiciary Law causes of action on the grounds that they were duplicative and were not pleaded with the required degree of particularity (see id. at 816-817).Subsequently, the plaintiff moved for leave to renew her opposition to the defendants’ motions to dismiss and to serve a second amended complaint. The plaintiff contended that the depositions of Blatt and Pieragostini, which had taken place after the August 2012 order had been issued, yielded sufficient additional evidence to permit her to plead her causes of action with greater particularity. The Sirignano defendants cross-moved for sanctions, seeking, inter alia, costs and a declaration that the plaintiff is a vexatious litigator. In an order dated December 4, 2014 (hereinafter the December 2014 order), the Supreme Court granted the plaintiff’s motion for leave to renew and, upon renewal, in effect, vacated those portions of the August 2012 order which granted that branch of Blatt’s motion which was to dismiss the fifth cause of action, alleging violation of Judiciary Law §487 against him, that branch of Pieragostini’s motion which was to dismiss the tenth cause of action, alleging violation of Judiciary Law §487 against him, and those branches of the Sirignano defendants’ motion which were to dismiss the thirteenth and fifteenth causes of action, alleging aiding and abetting fraud and violation of Judiciary Law §487, respectively, against them, and granted leave to the plaintiff to replead those causes of action. The Supreme Court also denied the Sirignano defendants’ cross motion for an award of costs and sanctions. Blatt, Pieragostini, and the Sirignano defendants separately appeal from so much of the December 2014 order as permitted the plaintiff to replead those causes of action insofar as asserted against each of them. The Sirignano defendants also appeal from the denial of their cross motion for sanctions. We affirm the December 2014 order insofar as appealed from.A motion for leave to renew “must be (1) based upon new facts not offered on the prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion” (Matter of Nelson v. Allstate Ins. Co., 73 AD3d 929, 929; see Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585, 585-586; Jovanovic v. Jovanovic, 96 AD3d 1019, 1020; Simpson v. Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391). The new or additional facts presented “either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Deutsche Bank Trust Co. v. Ghaness, 100 AD3d at 586; see Rowe v. NYCPD, 85 AD3d 1001, 1003; Gonzalez v. Vigo Constr. Corp., 69 AD3d 565, 566; Renna v. Gullo, 19 AD3d 472, 473; Mollin v. County of Nassau, 2 AD3d 600, 601). A party seeking leave to renew after an appellate determination “bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty” (Estate of Castellone v. JP Morgan Chase Bank, N.A., 129 AD3d 771, 772 [internal quotation marks omitted]; see Matter of Crane, 127 AD3d 747, 748; Davi v. Occhino, 116 AD3d 651, 652).Here, the depositions conducted subsequent to the Supreme Court’s August 2012 order yielded substantial additional evidence which permitted the plaintiff to state the causes of action alleging violation of Judiciary Law §487 against the defendants in greater detail and to refine the cause of action alleging aiding and abetting fraud against the Sirignano defendants, which provided a strong basis upon which to change the court’s prior determination of the defendants’ respective motions. Contrary to the defendants’ contentions, the record demonstrates that the plaintiff acted with due diligence in moving for leave to renew. In addition, the relief granted by the Supreme Court is not contrary to this Court’s prior decision and order dated April 16, 2014 (see Betz v. Blatt, 116 AD3d 813), since the Supreme Court permitted the plaintiff to replead to remedy the defects identified by this Court as the basis for dismissal. Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew.“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” (Markowits v. Friedman, 144 AD3d 993, 995; see CPLR 3025[b]; Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580; Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d 678, 679; Smallberg v. Raich Ende Malter & Co., LLP, 140 AD3d 942, 943; Hothan v. Mercy Med. Ctr., 105 AD3d 905, 906; Blue Diamond Fuel Oil Corp. v. Lev Mgt. Corp., 103 AD3d 675, 676). ”Prejudice is more than the mere exposure of the [party] to greater liability. Rather, there must be some indication that the [party] has been hindered in the preparation of [the party's] case or has been prevented from taking some measure in support of [its] position. The burden of establishing prejudice is on the party opposing the amendment” (Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 411 [internal quotation marks and citations omitted]; see Gomez v. Buena Vida Corp., 152 AD3d 497, 498; Redd v. Village of Freeport, 150 AD3d 780, 781; Garafola v. Wing Inc. Specialty Trades, 139 AD3d 793, 794; see also Wells Fargo Bank, N.A. v. Morgan, 139 AD3d 1046, 1048). ”‘Whether to grant [leave to amend] is within the motion court’s discretion, the exercise of which will not be lightly disturbed’” (APF Mgt. Co., LLC v. Munn, 151 AD3d 668, 670, quoting Pergament v. Roach, 41 AD3d 569, 572; see Davis v. South Nassau Communities Hosp., 26 NY3d at 580; Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d at 679; Markowits v. Friedman, 144 AD3d at 995).Here, there was no surprise, since each of the new causes of action had been asserted in the plaintiff’s prior complaint (see Rocha v. GRT Constr. of N.Y., 145 AD3d 926, 928-929; DaSilva v. C & E Ventures, Inc., 83 AD3d 551, 552). Similarly, none of the defendants demonstrated prejudice. In addition, the causes of action, as proposed, are not palpably insufficient (see Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d at 679-680).“To recover for aiding and abetting fraud, the plaintiff must plead the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud” (Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d at 679; see Swartz v. Swartz, 145 AD3d 818, 824; Weinstein v. CohnReznick, LLP, 144 AD3d 1140, 1141; Markowits v. Friedman, 144 AD3d at 996). ”‘Substantial assistance’ requires an affirmative act on the defendant’s part” (Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d at 679, quoting Baron v. Galasso, 83 AD3d 626, 629; see Markowits v. Friedman, 144 AD3d at 996). ”[T]he mere inaction of an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff” (Markowits v. Friedman, 144 AD3d at 996 [internal quotation marks omitted]).The portions of the proposed second amended complaint that alleged, among other things, that the Sirignano defendants knew of Carbone’s fraudulent and wrongful acts and assisted him in concealing those acts from the beneficiaries. The allegations detailed specific false claims that the Sirignano defendants made or defended on Carbone’s behalf, which are adequate to support the plaintiff’s cause of action alleging aiding and abetting fraud. Thus, the Supreme Court properly granted the plaintiff leave to replead that cause of action against the Sirignano defendants.Judiciary Law §487 imposes civil and criminal liability on any attorney who “(1) [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, (2) [w]ilfully delays his client’s suit with a view to his own gain” (Judiciary Law §487; see Gumarova v. Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 911; Rozen v. Russ & Russ, P.C., 76 AD3d 965, 968). A plaintiff may state a Judiciary Law §487 cause of action by relying upon a defendant’s intentional deceit during the course of an underlying action (see Specialized Indus. Servs. Corp. v. Carter, 68 AD3d 750, 751). A cause of action alleging a violation of Judiciary Law §487 must be pleaded with specificity (see Betz v. Blatt, 116 AD3d at 817; Putnam County Temple & Jewish Ctr., Inc. v. Rhinebeck Sav. Bank, 87 AD3d 1118, 1120; Briarpatch Ltd., L.P. v. Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297) and is “focuse[d] on the attorney’s intent to deceive, not the deceit’s success” (Amalfitano v. Rosenberg, 12 NY3d 8, 14). Accordingly, although injury to the plaintiff is an essential element of a Judiciary Law §487 cause of action (see Gumarova v. Law Offs. of Paul A. Boronow, P.C., 129 AD3d at 911; Rozen v. Russ & Russ, P.C., 76 AD3d at 968), “recovery of treble damages under Judiciary Law §487 does not depend upon the court’s belief in a material misrepresentation of fact in a complaint” (Amalfitano v. Rosenberg, 12 NY3d at 15). Rather, because defending the action is a result of the misrepresentation, a party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation (see Amalfitano v. Rosenberg, 12 NY3d at 15).Here, the plaintiff adequately pleaded facts in its proposed second amended complaint, supported by the record, which, if proved, would demonstrate that Blatt both acted with intent to deceive the court or other parties and wilfully delayed the proceedings with a view toward his own gain (see Coccia v. Liotti, 70 AD3d 747, 754-755), to the financial harm of the plaintiff. Since the proposed second amended complaint set forth these allegations with the required degree of specificity (see Armstrong v. Blank Rome LLP, 126 AD3d 427, 427), the Supreme Court providently exercised its discretion in permitting the plaintiff to replead that cause of action.As this Court found that the legitimacy of the plaintiff’s objections to the accounting filed by Pieragostini on Carbone’s behalf was apparent from a plain reading of the account (see Matter of Carbone, 101 AD3d at 869), the plaintiff also has pleaded facts sufficient to demonstrate, if proven, that Pieragostini affirmatively ignored or concealed Carbone’s misdeeds or the inaccuracies in the information Carbone provided. The plaintiff’s proposed second amended complaint adequately detailed alleged failings by Pieragostini in not investigating the estate’s affairs in the course of preparing the accounting, and an outright attempt to deceive by Pieragostini’s filing of a deficient accounting and an addendum, which further delayed the administration of the estate, causing additional legal fees to be incurred by the plaintiff, along with other financial injury. Accordingly, the Supreme Court providently exercised its discretion in permitting the plaintiff to replead a Judiciary Law §487 cause of action against Pieragostini.The plaintiff also sufficiently alleged that the Sirignano defendants “consent[ed] to… deceit or collusion” (Judiciary Law §487[1]) in that they were aware of the falsity of the information Carbone had provided to the court but continued to misrepresent the estate’s financial status and advocate for the allegedly fraudulent accounting filed by Pieragostini. In addition, the proposed second amended complaint alleged that the Sirignano defendants purposely delayed the litigation for their own benefit and for Carbone’s benefit to the financial detriment of the plaintiff, an allegation which, if proven, satisfies Judiciary Law §487(2). Thus, the Supreme Court correctly determined that there were sufficient allegations to support this cause of action against the Sirignano defendants.In light of our determination that the Supreme Court properly permitted the plaintiff to replead the causes of action alleging aiding and abetting fraud and violation of Judiciary Law §487 against the Sirignano defendants, the contention of those defendants that the plaintiff’s motion was frivolous and sanctionable is without merit (see 22 NYCRR 130-1.1[c][1]; Finkelman v. SBRE, LLC, 71 AD3d 1081, 1081-1082).The defendants’ remaining contentions are without merit.LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.By Leventhal, J.P.; Chambers, Maltese and Duffy, JJ.Debra Betz, etc., res, v. Arnold W. Blatt, def, Anthony J. Pieragostini ap — (Index No. 58938/11)In an action, inter alia, to recover damages for legal malpractice, the defendant Anthony J. Pieragostini appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated July 27, 2016, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP, separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants George A. Sirignano, Jr., and Enea, Scanlon & Sirignano, LLP, which was for summary judgment dismissing the cause of action alleging aiding and abetting fraud insofar as asserted against them, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Anthony J. Pieragostini.The factual history of this case is set forth in a prior decision and order of this Court (see Betz v. Blatt, 116 AD3d 813) and in the companion appeal (see Betz v. Blatt, __ AD3d __ [Docket No. 2014-11352, decided herewith]). Insofar as is relevant to this appeal, the plaintiff, Debra Betz, in her capacity as substitute executor of her father’s estate, commenced this action to recover damages against attorneys who represented the estate and/or a former executor of the decedent’s estate who was removed for cause. The plaintiff set forth causes of action alleging that the defendant Anthony J. Pieragostini committed legal malpractice and violated Judiciary Law §487, and that the defendants George A. Sirignano, Jr., and Enea, Scanlan & Sirignano, LLP (hereinafter together the Sirignano defendants), aided and abetted fraud and violated Judiciary Law §487. The plaintiff seeks disgorgement and restitution.Pieragostini and the Sirignano defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court, inter alia, denied both motions. Pieragostini and the Sirignano defendants separately appeal.“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v. Feinman, 99 NY2d 295, 301-302). ”To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Burbige v. Siben & Ferber, 152 AD3d 641, 642). Conclusory allegations of damages or injuries predicated on speculation will not be sufficient (see Gall v. Colon-Sylvain, 151 AD3d 698, 700; Bua v. Purcell & Ingrao, P.C., 99 AD3d 843, 848). ”[A]bsent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence” (Betz v. Blatt, 116 AD3d at 815 [internal quotation marks omitted]; see DeMartino v. Golden, 150 AD3d 1200, 1201).A defendant can establish its prima facie entitlement to judgment as a matter of law dismissing a cause of action alleging legal malpractice by presenting evidence in admissible form establishing that the plaintiff is unable to prove at least one element of the cause of action (see Burbige v. Siben & Ferber, 152 AD3d at 642; Scartozzi v. Potruch, 72 AD3d 787, 789-790). Here, the Supreme Court properly denied that branch of Pieragostini’s motion which was for summary judgment dismissing the legal malpractice cause of action insofar as asserted against him, as he failed to establish his prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; see also Rehberger v. Garguilo & Orzechowski, LLP, 118 AD3d 767, 769). The record contains documents created by Pieragostini which indicate that he represented the estate and failed to verify the estate’s financial status, as well as affirmatively ignored or concealed misdeeds, when he prepared the accounting that was filed with the Surrogate’s Court, and instead relied on information provided by the former executor and others. Indeed, on the appeal in the underlying action, this Court found that the legitimacy of the plaintiff’s objections was apparent from a plain reading of the accounting (see Matter of Carbone, 101 AD3d 866, 869). Since Pieragostini failed to sustain his prima facie burden, we need not consider the adequacy of the plaintiff’s submissions in opposition to that branch of his motion (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Judiciary Law §487 imposes civil and criminal liability on any attorney who “(1) [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, (2) [w]ilfully delays his client’s suit with a view to his own gain” (Judiciary Law §487; see Gumarova v. Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911). A cause of action alleging a violation of Judiciary Law §487 must be pleaded with specificity (see Betz v. Blatt, 116 AD3d at 817; Putnam County Temple & Jewish Ctr., Inc. v. Rhinebeck Sav. Bank, 87 AD3d 1118, 1120).Judiciary Law §487 “focuses on the attorney’s intent to deceive, not the deceit’s success” (Amalfitano v. Rosenberg, 12 NY3d 8, 14). Accordingly, although injury to the plaintiff is an essential element of a Judiciary Law §487 cause of action seeking civil damages (see Klein v. Rieff, 135 AD3d 910, 913; Gumarova v. Law Offs. of Paul A. Boronow, P.C., 129 AD3d at 911), “recovery of treble damages under Judiciary Law §487 does not depend upon the court’s belief in a material misrepresentation of fact in a complaint” (Amalfitano v. Rosenberg, 12 NY3d at 15). A party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation (see id.).The Supreme Court properly denied that branch of Pieragostini’s motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law §487 insofar as asserted against him because he failed to establish his prima facie entitlement to judgment as a matter of law (see Mazel 315 W. 35th LLC v. 315 W. 35th Assoc. LLC, 120 AD3d 1106, 1107). In his deposition testimony submitted in support of his motion for summary judgment, Pieragostini admitted that, in the underlying proceeding, he sought approval from the Surrogate’s Court of an accounting and an addendum based on information provided by the former executor, as well as his accountant and former attorney, which he did not independently verify. Accordingly, Pieragostini did not eliminate triable issues of fact as to whether he acted with an intent to deceive the court or the plaintiff (see Judiciary Law §487[1]; Mazel 315 W. 35 LLC v. 315 W. 35th Assoc. LLC, 120 AD3d at 1107). Moreover, the plaintiff raised triable issues of fact by alleging that Pieragostini filed a blatantly deficient accounting which was inaccurate and incomplete, and that the addendum further delayed the administration of the estate, causing additional legal fees from the estate to Pieragostini, along with other financial injury to the plaintiff. Accordingly, the Supreme Court properly denied that branch of Pieragostini’s motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law §487 insofar as asserted against him.The Sirignano defendants contend that there is no evidence to establish that they deceived the court or another party. Contrary to the Sirignano defendants’ contention, the plaintiff raised a triable issue of fact as to the cause of action alleging a violation of Judiciary Law §487 insofar as asserted against them by submitting evidence showing that the accounting prepared by Pieragostini had glaring deficiencies, which the Sirignano defendants continued to defend on behalf of the former executor to the financial detriment of the plaintiff. These facts are sufficient to defeat that branch of their motion which was for summary judgment dismissing the cause of action alleging that they violated Judiciary Law §487 (see Rock City Sound, Inc. v. Bashian & Farber, LLP, 74 AD3d 1168, 1172).However, the Supreme Court erred in denying that branch of the Sirignano defendants’ motion which was for summary judgment dismissing the cause of action alleging that they aided and abetted fraud. The elements of a cause of action to recover damages for aiding and abetting fraud are (1) the existence of an underlying fraud, (2) knowledge of the fraud by the aider and abettor, and (3) substantial assistance by the aider and abettor in the achievement of the fraud (see Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d 678, 679; Swartz v. Swartz, 145 AD3d 818, 824). ”Substantial assistance requires an affirmative act on the defendant’s part” (Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d at 679 [internal quotation marks omitted]; see Smallberg v. Raich Ende Malter & Co., LLP, 140 AD3d 942, 944). Mere inaction by an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff (see Smallberg v. Raich Ende Malter & Co., LLP, 140 AD3d at 944).The elements of an underlying fraud are (1) material representations that were false, (2) the actor knew the representations were false and made them with the intent to induce reliance by the plaintiff, (3) the plaintiff justifiably relied on the actor’s misrepresentations, and (4) the plaintiff was injured as a result of the misrepresentations (see Lee Dodge, Inc. v. Sovereign Bank, N.A., 148 AD3d 1007, 1008; Cash v. Titan Fin. Servs., Inc., 58 AD3d 785, 788).The Sirignano defendants established their prima facie entitlement to judgment as a matter of law dismissing this cause of action insofar as asserted against them by establishing that there are no triable issues of fact demonstrating that the plaintiff had justifiably relied on any alleged misrepresentation by the former executor or by the Sirignano defendants on behalf of the former executor while they were attorneys in the proceeding (see generally Fulton v. Hankin & Mazel, PLLC, 132 AD3d 806, 808; Global Mins. & Metals Corp. v. Holme, 35 AD3d 93, 99). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324). Accordingly, the Supreme Court should have granted that branch of the Sirignano defendants’ motion which was for summary judgment dismissing the cause of action alleging aiding and abetting fraud insofar as asserted against them.“The elements of a cause of action to recover for unjust enrichment are ‘(1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered’” (Travelsavers Enters., Inc. v. Analog Analytics, Inc., 149 AD3d 1003, 1006, quoting GFRE, Inc. v. U.S. Bank, N.A., 130 AD3d 569, 570; see Wallace v. BSD-M Realty, LLC, 142 AD3d 701, 704). ”‘The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered’” (Goel v. Ramachandran, 111 AD3d 783, 791, quoting Paramount Film Distrib. Corp. v. State of New York, 30 NY2d 415, 421). In determining whether this equitable remedy is warranted, a court should “‘look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant’s conduct was tortious or fraudulent’” (Goel v. Ramachandran, 111 AD3d at 791, quoting Paramount Film Distrib. Corp. v. State of New York, 30 NY2d at 421; see Betz v. Blatt, 116 AD3d at 816).“[A]n attorney may recover fees from the estate only where the services rendered benefit the estate” (Betz v. Blatt, 116 AD3d at 816; see Matter of Rodken, 2 AD3d 1008, 1009). Here, the Sirignano defendants failed to eliminate triable issues of fact as to whether their work benefitted the estate rather than the former executor personally, or that equity would favor permitting them to retain the fees they were paid by the estate (see Matter of Wallace, 68 AD3d 679, 681; Matter of Rodken, 2 AD3d at 1009; Matter of Baxter [Gaynor], 196 AD2d 186, 189-190). Accordingly, the Supreme Court properly denied that branch of the Sirignano defendants’ motion which was for summary judgment dismissing the cause of action seeking restitution insofar as asserted against them.The parties’ remaining contentions are without merit.LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.PEOPLE, res, v. David Martinez, ap — Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated November 16, 2016, 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 Supreme Court did not err in denying the defendant’s request for a downward departure from his presumptive risk level to risk level one. 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 [Sex Offender Registration Act (hereinafter SORA)] 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, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).Here, the mitigating circumstances identified by the defendant either were adequately taken into account by the SORA Guidelines, or were not proven by a preponderance of the evidence (see People v. Velasquez, 145 AD3d 924, 924-925; People v. Game, 131 AD3d 460, 461; People v. Coleman, 122 AD3d 599, 599-600; People v. Wyatt, 89 AD3d 112, 131).Accordingly, the Supreme Court properly denied the defendant’s request for a downward departure from his presumptive risk level designation.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.Michael A. Miano, ap, v. Rite Aid Hdqtrs. Corp. res — (Index No. 5055/15)Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.Sobel Pevzner, LLC, Huntington, NY (Aaron C. Gross of counsel), for respondents.In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered December 22, 2016. The order granted the defendants’ motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action seeking to recover damages for injuries he alleges he sustained when he tripped and fell as he was walking on a landscaped area on the defendants’ property. The plaintiff testified at his deposition that on the date at issue, he had parked his vehicle in the defendants’ parking lot and then stepped up over a curb and walked through a landscaped area of the grounds adjacent to the parking lot as a way of accessing the sidewalk to the defendants’ store. The landscaped area consisted of trees, shrubs, and mulch, and near the plaintiff’s parking spot, there was a gap in the shrubbery. The plaintiff was walking through the gap when he tripped and fell on a root just below the surface of the mulch. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.“‘A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property’” (Commender v. Strathmore Ct. Home Owners Assn., 151 AD3d 1014, 1015, quoting Groom v. Village of Sea Cliff, 50 AD3d 1094, 1094). However, a landowner “will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” (Torres v. State of New York, 18 AD3d 739, 739; see Stanton v. Town of Oyster Bay, 2 AD3d 835, 836). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the root that had caused the plaintiff to trip and fall was inherent or incidental to the landscaped area and that it could be reasonably anticipated by those using it (see Badalbaeva v. City of New York, 55 AD3d 764, 764; Groom v. Village of Sea Cliff, 50 AD3d at 1095; Torres v. State of New York, 18 AD3d at 739; DeLaurentis v. Marx Realty & Improvement, 300 AD2d 343, 343-344). In opposition, the plaintiff failed to raise a triable issue of fact.The plaintiff’s remaining contentions are without merit.Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Chae Shin Oh, res, v. Edante Jeannot, ap — (Index No. 62519/14)Russo & Tambasco, Melville, NY (Susan J. Mitola of counsel), for appellant.The Grigoropoulos Law Group, PLLC, Ridgewood, NY (Chrissy Grigoropoulos of counsel), for respondent.In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated April 26, 2017, as granted that branch of the plaintiff’s motion which was to vacate a stipulation transferring the action to the binding summary jury trial part.ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff’s motion which was to vacate the stipulation transferring the action to the binding summary jury trial part is denied.In this action to recover damages for personal injuries arising from a motor vehicle collision, while the plaintiff was represented by prior counsel, the parties entered into a stipulation dated January 31, 2017, which was so-ordered by the Supreme Court, transferring the action to the binding summary jury trial part. The stipulation also contained a “high-low” agreement.On March 7, 2017, the plaintiff’s new counsel sent a stop work letter and consent to change attorneys to the plaintiff’s prior counsel. On April 7, 2017, the plaintiff moved by order to show cause, inter alia, to vacate the stipulation, contending that the plaintiff did not authorize her prior counsel to enter into the stipulation. The Supreme Court granted that branch of the motion which was to vacate the stipulation. The defendant appeals.The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to vacate the stipulation. The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract (see CPLR 2104; Daibes v. Kahn, 116 AD3d 994, 995; Cervera v. Bressler, 85 AD3d 839, 841; Kirkland v. Fayne, 78 AD3d 660, 660; Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 AD3d 706; Aivaliotis v. Continental Broker-Dealer Corp., 30 AD3d 446, 447). Contrary to the plaintiff’s contention, her counsel at the time of the stipulation had the apparent authority to enter into the stipulation. This prior counsel signed and verified the summons and complaint, appeared for the plaintiff at the preliminary conference and the compliance conference, and filed a note of issue, all before entering into the stipulation on the plaintiff’s behalf. The presence of an attorney at pretrial conferences constitutes “an implied representation by [the client] to defendants that [the attorney] had authority” to bind the client to a stipulation (Hallock v. State of New York, 64 NY2d 224, 231-232). Indeed, only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences (see 22 NYCRR 202.26[e]; cf. 22 NYCRR 202.12[b]). Here, the plaintiff’s engagement of her prior counsel to represent her throughout the litigation and to appear on her behalf at pretrial and compliance conferences precludes her from arguing that prior counsel lacked the authority to bind her to the stipulation. ”A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation” (Davidson v. Metropolitan Tr. Auth., 44 AD3d 819, 819, citing Hallock v. State of New York, 64 NY2d at 231).Thus, only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v. State of New York, 64 NY2d at 230). It was the plaintiff, as the party seeking to set aside the stipulation, who had the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable (see Cervera v. Bressler, 85 AD3d at 841). The plaintiff failed to present any such evidence in this case (see Kirkland v. Fayne, 78 AD3d at 660; Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 AD3d at 706).Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to vacate the stipulation.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.Yu Chen, plf, v. Kupoint (USA) Corporation, def, Kenlo International Corporation, ap — (Index No. 703054/15)In an action to recover damages for personal injuries, the defendant Kenlo International Corporation appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered January 25, 2017, which denied its unopposed motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint and all cross claims insofar as asserted against it.ORDERED that the order is affirmed, without costs or disbursements.The plaintiff alleged that he sustained personal injuries on February 19, 2014, when he slipped and fell on liquid on the floor of a building located in Long Island City (hereinafter the premises). The plaintiff commenced this action against the defendant Kupoint (USA) Corporation (hereinafter Kupoint), which allegedly owned, controlled, managed, and maintained the premises. Kupoint answered the complaint and admitted to owning the premises.Approximately one year later, the plaintiff moved for leave to amend the complaint to add Kenlo International Corporation (hereinafter Kenlo) as a defendant. The plaintiff alleged that Kenlo owned, operated, managed, maintained, and leased the portion of the premises where the accident occurred. The plaintiff also alleged that Kenlo created the condition that caused his accident. There was no opposition to the motion. In an order dated September 9, 2016, the Supreme Court granted the plaintiff’s motion for leave to amend the complaint. Kenlo answered the amended complaint and asserted a cross claim against Kupoint alleging, inter alia, that it was entitled to contribution and/or common-law or contractual indemnification. Kupoint asserted cross claims against Kenlo. Kenlo moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint and all cross claims insofar as asserted against it. The motion was not opposed. The court denied the motion. Kenlo appeals.On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be 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 (see Leon v. Martinez, 84 NY2d 83, 87; Murphy v. Department of Educ. of the City of N.Y., 155 AD3d 637). Accordingly, a motion to dismiss made pursuant to CPLR 3211(a)(7) must fail if, upon taking all the facts alleged in the complaint as true and according them every possible inference favorable to the plaintiff, “the complaint states in some recognizable form any cause of action known to our law” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38). While a court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see Phillips v. Taco Bell Corp., 152 AD3d 806, 807), “affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” (Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682, 683 [internal quotation marks omitted]; see Phillips v. Taco Bell Corp., 152 AD3d at 808; Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901, 902). The plaintiff “may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351, citing Rovello v. Orofino Realty Co., 40 NY2d 633, 635). Indeed, if a plaintiff chooses to stand on his or her pleading alone, “confident that its allegations are sufficient to state all the necessary elements of a cognizable cause of action, he [or she] is at liberty to do so and, unless the motion to dismiss is converted by the court to a motion for summary judgment, he [or she] will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint” (Rovello v. Orofino Realty Co., 40 NY2d at 635).Here, the Supreme Court did not convert Kenlo’s motion pursuant to CPLR 3211(a)(7) to dismiss to a motion for summary judgment. The amended complaint states a cause of action as against Kenlo, and Kenlo’s submissions, including an affidavit of its president, did not conclusively establish that the plaintiff has no cause of action against it, or that Kupoint has no cross claims against Kenlo (see Phillips v. Taco Bell Corp., 152 AD3d at 807-808; Soodoo v. LC, LLC, 116 AD3d 1033, 1034). Accordingly, the court properly denied Kenlo’s motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint and all cross claims insofar as asserted against it.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.BAC Home Loans Servicing, LP, etc., ap, v. Andres H. Carrasco, respondent def — (Index No. 5431/10)Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for respondent.In an action to foreclose a mortgage, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, (2) from an order of the same court entered February 10, 2015, which, after a hearing, in effect, granted that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and (3), as limited by its brief, from so much of an order of the same court entered October 22, 2015, as denied that branch of its motion which was for leave to reargue.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further,ORDERED that the order entered October 14, 2014, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is denied, and the order entered February 10, 2015, is vacated; and it is further,ORDERED that the appeal from the order entered February 10, 2015, is dismissed as academic in light of our determination on the appeal from the order entered October 14, 2014; and it is further,ORDERED that the appeal from so much of the order entered October 22, 2015, as denied that branch of the plaintiff’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.A process server’s affidavit of service gives rise to a presumption of proper service (see Machovec v. Svoboda, 120 AD3d 772, 772; Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC, 112 AD3d 813, 814). ”Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’” (Scarano v. Scarano, 63 AD3d 716, 716 [citation omitted], quoting Simonds v. Grobman, 277 AD2d 369, 370; see American Home Mtge. Servicing, Inc. v. Gbede, 127 AD3d 1004, 1005; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 AD3d 824). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server’s affidavit (see U.S. Bank N.A. v. Telford, 153 AD3d 881, 882; Bank of N.Y. v. Samuels, 107 AD3d 653, 654; Christiana Bank & Trust Co. v. Eichler, 94 AD3d 1170, 1171). Carrasco’s conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v. Peralta, 142 AD3d 988, 988-989; Bank of N.Y. v. Espejo, 92 AD3d 707, 708). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v. Decesare, 154 AD3d 717; Washington Mut. Bank v. Huggins, 140 AD3d 858, 859).MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Chambers, J.P.; Cohen, Barros and Christopher, JJ.Spyros N. Panos, etc., res, v. Judith A. Eisen, et al., ap — (Index No. 3839/14)In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered July 1, 2015. The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint and granted that branch of the plaintiff’s cross motion which was for leave to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was for summary judgment dismissing the complaint is granted, and that branch of the plaintiff’s cross motion which was for leave to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty is denied.The plaintiff commenced this action against the defendants to recover damages for legal malpractice. The defendants moved, inter alia, for summary judgment dismissing the complaint. The plaintiff opposed the motion and cross-moved for leave to amend the complaint, among other things, to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. The Supreme Court denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint and granted the plaintiff’s cross motion. The defendants appeal.To meet their initial burden on that branch of their motion which was for summary judgment dismissing the complaint, the defendants were required to “demonstrate, prima facie, either that they did not breach their duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession or that any breach of that duty did not proximately cause the plaintiff to suffer actual and ascertainable damages” (Montero v. Cohen, 104 AD3d 654, 655; see Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Ragunandan v. Donado, 150 AD3d 1289, 1290). The defendants established, prima facie, both the lack of a breach of duty and the lack of proximate cause. Therefore, in order to defeat the defendants’ motion, the plaintiff had “to demonstrate the existence of a triable issue of fact in connection with both matters” (Montero v. Cohen, 104 AD3d at 655; see Stukas v. Streiter, 83 AD3d 18, 25). Since the plaintiff failed to raise a triable issue of fact as to whether the defendants’ alleged breach of the duty of care proximately caused him to suffer actual and ascertainable damages, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.The Supreme Court should have denied that branch of the plaintiff’s cross motion which was for leave to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. ”Although leave to amend a pleading should be freely given 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” (APF Mgt. Co., LLC v. Munn, 151 AD3d 668, 670). Here, the plaintiff proposed to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. However, this cause of action is based on the same underlying facts as the legal malpractice cause of action and does not allege distinct damages. Therefore, the proposed breach of fiduciary duty cause of action was duplicative of the legal malpractice cause of action (see Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 902; Keness v. Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814; Kvetnaya v. Tylo, 49 AD3d 608, 609).CHAMBERS, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Austin, Roman and Sgroi, JJ.PEOPLE, etc., res, v. Israel Bradley, ap — (Ind. No. 182/14)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne Mondo, J.), rendered July 14, 2015, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.ORDERED that the judgment is affirmed.The evidence at trial established that on November 25, 2013, at approximately 10:52 a.m., the defendant and another individual entered a smoke shop on Myrtle Avenue in Brooklyn and took money from the cash register. In addition, the defendant, at gunpoint, took money from the complainant, who worked as a cashier at the shop. Following a jury trial, the defendant was convicted of robbery in the first degree and robbery in the second degree.The defendant’s contentions that the photographic and lineup identification procedures were unduly suggestive is partially unpreserved for appellate review (see CPL 470.05[2]). In any event, the defendant’s contentions are without merit. The photo array consisted of the defendant’s photograph and photographs depicting individuals who were sufficiently similar to the defendant in appearance such that there was little likelihood that the defendant would be singled out for identification based on particular characteristics (see People v. Chipp, 75 NY2d 327, 336; People v. Staton, 138 AD3d 1149, 1150, affd 28 NY3d 1160; People v. Thomas, 104 AD3d 710, 711; People v. Brown, 89 AD3d 1032, 1033). Furthermore, a review of the photograph that was taken at the lineup reveals that the lineup participants possessed physical characteristics that were reasonably similar to those of the defendant, and that the police took reasonable steps to conceal any differences between the appearances of the lineup participants and the defendant (see People v. Chavez, 135 AD3d 952, 952; People v. Jean-Baptiste, 57 AD3d 566, 567). Accordingly, the Supreme Court properly denied that branch of the defendant’s omnibus motion which was to suppress identification evidence.The defendant further argues that the Supreme Court erred in denying his request for a jury charge on cross-racial identification. We agree. In People v. Boone (30 NY3d 521, 535), the Court of Appeals held that where, as here, “a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.”However, the failure to charge the jury with respect to cross-racial identification does not in our view mandate reversal in all cases. In Boone, the Court determined that there was no merit to the People’s contention that any error in failing to give a cross-racial identification charge was harmless (see id. at 537). However, unlike Boone, where the facts did not permit a finding of harmless error, under the circumstances of the present case, the Supreme Court’s failure to give a cross-racial identification charge constituted harmless error. The defendant identified himself as the individual shown in a surveillance video taken inside a deli adjacent to the smoke shop approximately 40 minutes before the robbery. A surveillance video taken outside the deli at that time showed the individual on the sidewalk walking past the smoke shop and entering the deli. Additionally, the surveillance video taken outside the deli showed the same individual entering and exiting the smoke shop at the exact time of the robbery. Immediately after the crime, the complainant gave a very precise and detailed description of the defendant to a detective, which included a unique identifying characteristic, namely, a brown birthmark on the white of the defendant’s eye. During the arrest process of the defendant, the arresting detective immediately observed the distinctive marking on the defendant’s eye. Under the circumstances, the error in failing to administer the charge on cross-racial identification was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the defendant would have been acquitted if not for the error (see People v. Crimmins, 36 NY2d 230, 241-242).The defendant’s remaining contention is without merit.BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.By Austin, J.P.; Roman, Sgroi and Connolly, JJ.MATTER of Mary A. Valverde, res, v. Clifford v. Owens III, ap — (Proceeding No. 1)MATTER of Clifford v. Owens III, ap, v. Mary A. Valverde, res — (Proceeding No. 2) (Docket Nos. F-23123-14/14A, F-407-15/15A)Diana H. Kelly, Jamaica, NY, for appellant.In related proceedings pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Queens County (Mildred T. Negron, J.), dated January 9, 2017. The order, insofar as appealed from, denied the father’s objections to (1) so much of an order of the same court (Michael J. Fondacaro, S.M.) dated August 5, 2016, as, after a hearing, found that the father willfully violated a prior order of child support, and (2) an order of the same court (Michael J. Fondacaro, S.M.), also dated August 5, 2016, which dismissed the father’s petition for a downward modification of his child support obligation.ORDERED that the order dated January 9, 2017, is affirmed insofar as appealed from, without costs or disbursements.The mother and the father have two children together. In an order of support dated September 19, 2014, entered on consent, the father was directed to pay, inter alia, monthly child support in the sum of $1,000. The mother filed a petition alleging that the father was in willful violation of the order of support. The father filed a petition for a downward modification of his child support obligation. Following a hearing, the Support Magistrate issued an order, inter alia, finding that the father willfully violated the order of support, and a separate order dismissing the father’s petition. The Family Court denied the father’s objections to the Support Magistrate’s orders. The father appeals.“[P]roof that a respondent has failed to pay support as ordered establishes the petitioner’s direct case of willful violation” (Matter of Rojas-Parades v. Lewis, 149 AD3d 844, 845; see Family Ct Act §454[3][a]; Matter of Rafferty v. Ettinger, 150 AD3d 1016, 1016; Matter of Kretkowski v. Pasqua, 147 AD3d 836, 837). Once a prima facie showing of willfulness has been made, the burden shifts to the party that owes the support “to offer some competent, credible evidence of his [or her] inability to make the required payments” (Matter of Powers v. Powers, 86 NY2d 63, 69-70; see Matter of Rafferty v. Ettinger, 150 AD3d at 1016; Matter of Rojas-Parades v. Lewis, 149 AD3d at 845; Matter of Kretkowski v. Pasqua, 147 AD3d at 837; Matter of Myles v. Turner, 137 AD3d 1038, 1039). ”Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered” (Matter of Musarra v. Musarra, 28 AD3d 668, 669).Here, the mother presented prima facie evidence of the father’s willful violation of the order of support and, in response, the father failed to offer any competent, credible evidence of his inability to make the required payments. Thus, the Family Court correctly determined that the mother sustained her burden of proving a willful violation (see Matter of Logue v. Abell, 97 AD3d 582, 583; Matter of Cooper v. Robertson, 69 AD3d 714, 714; Matter of Teller v. Tubbs, 34 AD3d 593, 594).As to the father’s petition, Family Court Act §451(3)(a) provides that “[t]he court may modify an order of child support… upon a showing of a substantial change in circumstances.” In addition, the court may modify an order of child support where “there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Family Ct Act §451[3][b][ii]). However, “[a] reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience” (id.). ”Deference should be given to credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses on this point” (Matter of Hezi v. Hezi, 141 AD3d 587, 588).Here, the father failed to demonstrate that a substantial change in circumstances had occurred or that he made diligent attempts to secure employment commensurate with his education, ability, and experience (see Matter of Rolko v. Intini, 128 AD3d 705, 706). Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s denial of his petition.AUSTIN, J.P., ROMAN, SGROI and CONNOLLY, JJ., concur.By Mastro, J.P.; Rivera, Hinds-Radix and Iannacci, JJ.MATTER of Lea C. (Anonymous). Administration for Childrens Services, petitioner- res; Akil F. (Anonymous), appellant res — (Proceeding No. 1)MATTER of Keana C. (Anonymous). Administration for Childrens Services, petitioner- res; Akil F. (Anonymous), appellant res — (Proceeding No. 2) (Docket Nos. N-14251-15, N-14252-15)Francine Shraga, Brooklyn, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Julie Steiner of counsel), for petitioner-respondent.Seymour W. James, Jr., New York, NY (Dawne A. Mitchell and Susan Clement of counsel), attorney for the children.In related proceedings pursuant to Family Court Act article 10, Akil F. appeals from (1) an order of the Family Court, Kings County (Elizabeth Barnett, J.), dated May 31, 2016, (2) an order of the same court (Elizabeth Barnett, J.) dated August 1, 2016, (3) an order of disposition of the same court (Ben Darvil, Jr., J.) dated September 30, 2016, and (4) an order of protection of the same court (Ben Darvil, Jr., J.) dated September 30, 2016. The order dated May 31, 2016, insofar as appealed from, conditionally granted that branch of the petitioner’s motion which was for summary judgment on the issue of whether the appellant abused the child Lea C. and derivatively abused the child Keana C., provided the petitioner could prove, at a hearing, that the appellant was a person legally responsible for the subject children. The order dated August 1, 2016, after a hearing, found that the appellant was a person legally responsible for the subject children and, pursuant to the order dated May 31, 2016, that he abused the child Lea C. and derivatively abused the child Keana C. The order of disposition, insofar as appealed from, after a dispositional hearing, directed the appellant to complete a sex offender treatment program and directed the issuance of an order of protection against the appellant and in favor of the subject children for a period of one year. The order of protection directed the appellant to stay away from the subject children until and including October 2, 2017.ORDERED that the appeals from the orders dated May 31, 2016, and August 1, 2016, are dismissed, without costs or disbursements, as those orders were superseded by the order of disposition, and are brought up for review on the appeal from the order of disposition; and it is further,ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the order of protection is affirmed, without costs or disbursements.Although the order of protection has expired by its own terms, the appeal from the order of protection has not been rendered academic “given the totality of the enduring legal and reputational consequences” of the order of protection (Matter of Veronica P. v. Radcliff A., 24 NY3d 668, 673).On June 9, 2015, the Administration for Children’s Services (hereinafter ACS) commenced these proceedings pursuant to Family Court Act article 10, alleging, inter alia, that on or about May 13, 2015, the appellant abused Lea C. and derivatively abused Keana C. The appellant was subsequently arrested and indicted on charges of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, and endangering the welfare of a child, with each count of the indictment identifying Lea C. as the alleged victim. The appellant was subsequently convicted, upon a jury verdict, of course of sexual conduct against a child in the first degree.Based upon the appellant’s conviction, ACS moved, inter alia, for summary judgment on the issue of whether the appellant abused Lea C. and derivatively abused Keana C. The Family Court conditionally granted that branch of ACS’s motion, provided ACS could prove, at a hearing, that the appellant was a person legally responsible for the children. After the hearing, the court found that the appellant was a person legally responsible for the children and, based on its prior determination, that the appellant abused Lea C. and derivatively abused Keana C. After a dispositional hearing, the court, inter alia, issued a stay-away order of protection against the appellant and in favor of the children and directed the appellant to complete a sex offender treatment program.Contrary to the appellant’s contention, the Family Court properly found that he was a person legally responsible for the care of the children within the meaning of the Family Court Act (see Family Ct Act §1012[g]; Matter of Trenasia J. [Frank J.], 25 NY3d 1001, 1004-1006; Matter of Yolanda D., 88 NY2d 790, 795-797; Matter of Angel R. [Syheid R.], 136 AD3d 1041, 1041).The Family Court also properly granted that branch of ACS’s motion which was for summary judgment on the issue of whether the appellant abused Lea C. and derivatively abused Keana C., since ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d 178, 182; Matter of Ajay P., 60 AD3d 681, 683). A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 NY2d at 182-183; Matter of Ajay P., 60 AD3d at 683; Matter of Doe, 47 AD3d 283, 285; Matter of Diana N., 34 AD3d 1058, 1059). The appellant’s conviction of course of sexual conduct against a child in the first degree was based upon the same acts alleged in these proceedings. Furthermore, the appellant’s conviction of the sex offense as to Lea C. established his derivative abuse of Keana C. because the acts underlying the sex offense demonstrated a fundamental defect in the appellant’s understanding of parental duties (see Family Ct Act §1046[a][i]; see also Matter of Ajay P., 60 AD3d at 683; Matter of Jasmine A., 18 AD3d 546, 547). The appellant failed to raise a triable issue of fact as to the identity of the issues in the criminal proceeding and the Family Court proceedings, or as to his opportunity to fully litigate the issues in the criminal proceeding (see Zuckerman v. City of New York, 49 NY2d 557, 562).“‘The paramount concern in a dispositional hearing is the best interests of the child. The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect’” (Matter of Eric Z. [Guang Z.], 100 AD3d 646, 648, quoting Matter of Lemar H., 23 AD3d 383, 384). Here, the Family Court properly directed the appellant to complete a sex offender treatment program, and the evidence supported the issuance of an order of protection which was reasonably necessary to protect the children (see Matter of Amparo B.T. [Carlos B.E.], 118 AD3d 809, 812; Matter of Miloslau v. Miloslau, 112 AD3d 632, 633; Matter of Caitlyn U., 48 AD3d 934, 935).MASTRO, J.P., RIVERA, HINDS-RADIX and IANNACCI, JJ., concur.By Scheinkman, P.J.; Dillon, Miller, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Alfredo Posadas-Ruiz, ap — (S.C.I. No. 25/16)Thomas N. N. Angell, Poughkeepsie, NY (Steven Levine of counsel), for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Bridget Rahilly Steller of counsel), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Dutchess County (Peter M. Forman, J.), imposed April 12, 2016, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., DILLON, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.MATTER of Lakia Boyd, res, v. Jason Ivory, ap — (Docket No. V-2930-14/16A)Tennille M. Tatum-Evans, New York, NY, for appellant.Mark Brandys, New York, NY, for respondent.Linda C. Braunsberg, Staten Island, NY, attorney for the child.In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Richmond County (Alison M. Hamanjian, Ct. Atty. Ref.), dated August 25, 2016. The order, after a hearing, granted the mother’s petition to modify the parties’ so-ordered stipulation of settlement pertaining to custody and visitation so as to permit her to relocate to North Carolina with the parties’ child.ORDERED that the order is affirmed, without costs or disbursements.The parties, who were never married, have one child together, born in 2009. After the child was born, the parties lived together until they separated in 2013. In May 2015, the parties entered into a so-ordered stipulation of settlement in which they agreed that the mother would have sole legal custody of the child with visitation to the father. In January 2016, the mother filed a petition to modify the stipulation so as to permit her to relocate to North Carolina with the child. The attorney for the child supported the mother’s petition. After a hearing, the Family Court granted the mother’s petition. The father appeals.“‘A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests’” (Matter of Ventura v. Huggins, 141 AD3d 600, 600; Matter of Caruso v. Cruz, 114 AD3d 769, 771). In determining whether a proposed move is in a child’s best interests, courts are “free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 NY2d 727, 740). These factors include, but are not limited to, “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (id. at 740-741; see Matter of Hall v. Hall, 118 AD3d 879, 880-881).Here, the Family Court’s determination that relocation was in the best interests of the child was supported by a sound and substantial basis in the record. The mother’s testimony, which the court credited, demonstrated that relocation would enhance the child’s life economically, emotionally, and educationally, and that the child’s relationship with the father could be preserved through a liberal visitation schedule including, but not limited to, frequent communication and extended summer and holiday visits (see Matter of Tropea v. Tropea, 87 NY2d at 740-741).DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.PEOPLE, etc., res, v. Jason Robinson, ap — (Ind. No. 14-00539)Michele Marte-Indzonka, Newburgh, NY, for appellant.David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), for respondent.Appeal by the defendant from a resentence of the County Court, Orange County (Robert H. Freehill, J.), imposed August 20, 2015, which, upon his conviction of criminal sale of a firearm in the third degree under Indictment No. 14-00539, upon his plea of guilty, imposed a period of five years of postrelease supervision in addition to the determinate term of imprisonment previously imposed on the conviction of criminal sale of a firearm in the third degree.ORDERED that the resentence is reversed, on the law, and the matter is remitted to the County Court, Orange County, for further proceedings in accordance herewith.The defendant was charged under two separate indictments for various crimes that allegedly occurred on two separate dates. The defendant subsequently agreed to plead guilty to criminal sale of a controlled substance in or near school grounds under Indictment No. 14-00077, and criminal sale of a controlled substance in the third degree and criminal sale of a firearm in the third degree under Indictment No. 14-00539.In return for these pleas of guilty, the County Court promised to impose determinate terms of 5 years’ imprisonment on all three convictions. The court noted that the defendant would receive concurrent periods of postrelease supervision in addition to the terms of imprisonment, indicating that he would receive periods of postrelease supervision that were between 1  and 3 years. The court further promised to direct that all sentences would run concurrently with each other. In response to an inquiry by the defendant, the court stated that the proposed disposition would “cover all counts in both indictments,” as well as two other alleged drug sales for which the defendant had not been charged.The defendant pleaded guilty on November 17, 2014. When he appeared for sentencing on December 16, 2014, the County Court informed him that it could not keep its sentencing promise because it was required to run the sentence of imprisonment under Indictment No. 14-00077 consecutively with the sentences of imprisonment imposed under the other indictment. Without specifying the enhanced sentence, the court stated that it would reduce the terms of imprisonment in an attempt to approximate the total aggregate sentence that it had promised.The defendant, through his attorney, did not consent to the enhanced sentence. The defendant’s attorney argued that the defendant was entitled to the sentence that was originally promised.The court did not give the defendant an opportunity to withdraw his guilty pleas. Rather, it proceeded to sentence the defendant to (1) a determinate term of three years’ imprisonment plus two years of postrelease supervision on the conviction under Indictment No. 14-00077, and (2) concurrent determinate terms of three years’ imprisonment plus two years of postrelease supervision on the conviction of criminal sale of a controlled substance in the third degree, and four years’ imprisonment plus two years of postrelease supervision on the conviction of criminal sale of a firearm in the third degree under Indictment No. 14-00539.The County Court directed that the terms of imprisonment imposed under Indictment No. 14-00539 were to run consecutively with the term of imprisonment imposed under Indictment No. 14-00077. The court also directed that the periods of postrelease supervision imposed under Indictment No. 14-00539 were to run concurrently with the period of postrelease supervision imposed under Indictment No. 14-00077. The defendant did not appeal from either of the judgments entered under the two indictments.On August 20, 2015, the defendant was resentenced on his conviction for criminal sale of a firearm in the third degree under Indictment No. 14-00539. At the resentencing proceeding, the defendant was informed that the term of postrelease supervision that was imposed on that conviction was illegal. Defense counsel argued that the defendant was entitled to withdraw his plea of guilty if the court was unable to keep its sentencing promise. The court did not afford the defendant the opportunity to do so. Over the defendant’s objection, the court amended the sentence under Indictment No. 14-00539, by vacating the two-year period of postrelease supervision imposed on the conviction of criminal sale of a firearm in the third degree and resentencing the defendant to a concurrent period of five years’ postrelease supervision on that conviction.The defendant appeals from the resentence. We reverse the resentence, and remit the matter to the County Court, Orange County, for further proceedings in accordance herewith.With limited exception not applicable here, “[a]n appeal to an intermediate appellate court may be taken as of right by the defendant from… [a] sentence other than one of death, as prescribed in subdivision one of section 450.30″ (CPL 450.10[2]). That subdivision provides that “[a]n appeal by the defendant from a sentence… may be based upon the ground that such sentence either was (a) invalid as a matter of law, or (b) harsh or excessive” (CPL 450.30[1]).As relevant here, “[a]n appeal from a sentence, within the meaning of this section and section[ ] 450.10… means an appeal from either the sentence originally imposed or from a resentence following an order vacating the original sentence” (CPL 450.30[3]). ”For purposes of appeal, the judgment consists of the conviction and the original sentence only, and when a resentence occurs more than thirty days after the original sentence, a defendant who has not previously filed a notice of appeal from the judgment may not appeal from the judgment, but only from the resentence” (CPL 450.30[3]). Accordingly, the Court of Appeals has stated that on an appeal from a resentence “[t]he defendant’s right to appeal is limited to the correction of errors or the abuse of discretion at the resentencing proceeding” (People v. Lingle, 16 NY3d 621, 635).Here, the defendant contends that both of the underlying judgments should be reversed and the underlying guilty pleas vacated on the ground that the County Court deviated from the terms of the plea agreement by imposing an aggregate term of seven years’ imprisonment instead of the aggregate term of five years’ imprisonment that it had promised the defendant when he agreed to plead guilty. To the extent that the defendant seeks vacatur of the underlying pleas and reversal of the underlying judgments due to an alleged violation of the plea agreement, such a contention is not reviewable on this appeal since the defendant has only appealed from the resentence (see CPL 450.30[3]; People v. Jordan, 16 NY3d 845, 846; People v. Toney, 116 AD3d 607, 607; People v. Benoit, 83 AD3d 728, 728; People v. Fields, 79 AD3d 1147, 1147-1148; People v. Ferrufino, 33 AD3d 623, 623; People v. Luddington, 5 AD3d 1042, 1042). Similarly, the defendant’s further contentions that he was deprived of the effective assistance of counsel at the plea proceedings and at the original sentencing, and that the original sentence was excessive, may not be raised on this appeal from the resentence only (see CPL 450.30[3]; People v. Benoit, 83 AD3d at 728; People v. Ferrufino, 33 AD3d at 623).However, to the extent that the defendant seeks reversal of the resentence on the ground that the County Court erred in imposing an enhanced term of postrelease supervision in violation of the plea agreement without first affording him the opportunity to withdraw his plea, his contention is reviewable on the merits on this appeal from the resentence (see People v. Wheeler, 91 AD2d 647; cf. People v. Jordan, 16 NY3d at 846; People v. DeSpirito, 27 AD3d 479; People v. Luddington, 5 AD3d 1042).“A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v. Catu, 4 NY3d 242, 244-245 [internal quotation marks omitted]; see People v. Turner, 24 NY3d 254, 258; People v. Cornell, 16 NY3d 801, 802). ”While a trial court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions, the court must advise a defendant of the direct consequences of the plea” (People v. Catu, 4 NY3d at 244). ”Postrelease supervision is a direct consequence of a criminal conviction” (id.).“Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (id. at 245; see People v. McAlpin, 17 NY3d 936, 938; People v. Fox, 139 AD3d 871, 871-872; People v. Fuertes, 105 AD3d 974, 975; People v. Key, 64 AD3d 793, 793).It is not enough for a court to generally inform a defendant that a term of postrelease supervision will be imposed as a part of the sentence (see People v. Boyd, 12 NY3d 390, 393; People v. Grimm, 69 AD3d 1231, 1232). Rather, for a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed (see People v. Boyd, 12 NY3d at 393; People v. Curtis, 119 AD3d 705, 705; People v. Brown, 107 AD3d 1303, 1304; People v. Blunt, 93 AD3d 675, 677; cf. People v. Lopez, 51 AD3d 1210, 1211).Furthermore, as is the case with a sentence of incarceration, if a court’s promise of a specific term or range of postrelease supervision “is the product of a negotiated plea agreement, and the sentencing court is unable to fulfill its… promise due to the illegality of that [portion of the] sentence, the appropriate remedy is to give the defendant the opportunity to either accept an amended lawful sentence or withdraw his plea of guilty and be restored to pre-plea status” (People v. Hollis, 309 AD2d 764, 765; see People v. Dallas, 107 AD3d 912, 912; People v. Bullard, 84 AD2d 845; see also People v. Wolfolk, 134 AD3d 1059, 1059; People v. Peale, 122 AD2d 353, 354; People v. Miller, 38 AD2d 745, 746; accord People v. Zeigler, 128 AD3d 737, 737).Here, during the plea proceedings, the County Court indicated that it would impose periods of postrelease supervision that were between 1  and 3 years. The court originally imposed periods of postrelease supervision of 2 years, periods that were within the range promised by the court. However, when the defendant was resentenced, the court imposed a period of 5 years of postrelease supervision on his conviction of criminal sale of a firearm in the third degree under Indictment No. 14-00539. Despite defense counsel’s explicit request, the court did not give the defendant an opportunity to withdraw his plea of guilty.Under these circumstances, the County Court erred in resentencing the defendant to a period of postrelease supervision on the conviction of criminal sale of a firearm in the third degree that exceeded the period of postrelease supervision that had been promised to the defendant in connection with the plea agreement, without first affording the defendant the opportunity to withdraw his plea of guilty to that count (see People v. Dallas, 107 AD3d at 912; see also People v. Wolfolk, 134 AD3d at 1059; People v. Donofrio, 123 AD3d 941, 942). Furthermore, inasmuch as the defendant’s plea of guilty on Indictment No. 14-00077, and his plea of guilty to the charge of criminal sale of a controlled substance in the third degree under Indictment No. 14-00539 were induced by the promise that the sentences on the two indictments would all run concurrently, the defendant must be afforded the opportunity to withdraw his pleas of guilty under both of the indictments, for all three convictions (see People v. Sosa-Rodriguez, 63 AD3d 861, 863; People v. Puntervold, 60 AD3d 1090, 1090; People v. Sellers, 222 AD2d 941; cf. People v. Murrell, 153 AD3d 730, 731-732).Accordingly, under the particular circumstances of this case, the resentence must be reversed and the matter remitted to the County Court to afford the defendant the opportunity to withdraw his pleas of guilty under both of the indictments (see People v. Wheeler, 91 AD2d 647). In the event that the defendant avails himself of that opportunity, the underlying pleas and judgments should be vacated, and the People may prosecute the defendant under all counts under both indictments, in addition to the two other alleged drug sales for which the defendant was not indicted, but which were covered under the terms of the parties’ plea agreement. In the event that the defendant does not avail himself of the opportunity to withdraw his pleas of guilty and the parties do not otherwise agree to some other legal disposition, the court should proceed to resentence the defendant to a lawful period of postrelease supervision on the count of criminal sale of a firearm in the third degree (see People v. Dallas, 107 AD3d at 912; People v. Sosa-Rodriguez, 63 AD3d at 863).Finally, to the extent that the defendant contends that he was deprived of the effective assistance of counsel at the resentencing proceeding, he failed to demonstrate “that counsel’s representation fell below an objective standard of reasonableness” (Strickland v. Washington, 466 US 668, 688; see People v. Summerville, 138 AD3d 897, 899).In light of the foregoing, the defendant’s remaining contentions are academic.DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.PEOPLE, etc., res, v. Tyre Brooks, ap — (Ind. No. 1814/12)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel; Robert Ho on the brief), for respondent.Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Elizabeth A. Foley, J.), rendered February 25, 2014, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed April 1, 2015, which vacated the defendant’s adjudication as a second violent felony offender and adjudicated him a first violent felony offender.ORDERED that the judgment and the resentence are affirmed.The defendant was born in June 1994. On September 20, 2010, the defendant was convicted of the felony of attempted robbery in the second degree, upon his plea of guilty, and sentence was imposed (see People v. Brooks, 120 AD3d 1255). After the defendant was released from prison for that felony conviction, but while his appeal from that felony conviction was still pending, he was charged with committing a series of robberies with a knife in late 2011, and he pleaded guilty to one count of attempted robbery in the first degree in satisfaction of those charges. He waived his right to appeal, and on February 25, 2014, he received the promised sentence and was adjudicated a second violent felony offender.On appeal from his prior felony conviction, in a decision and order of this Court dated September 10, 2014, the matter was remitted to the Supreme Court, Kings County, to determine whether the defendant should be afforded youthful offender treatment (see id.). Upon remittitur, the defendant’s prior felony conviction was vacated and he was afforded youthful offender treatment. Therefore, on April 1, 2015, the court resentenced the defendant on his conviction of attempted robbery in the first degree by adjudicating him a first violent felony offender. The defendant appeals from the judgment rendered February 25, 2014, and the resentence imposed April 1, 2015.The defendant’s waiver of his right to appeal was valid (see People v. Johnson, 153 AD3d 933; People v. Lovick, 127 AD3d 1108). However, whether the Supreme Court was required to consider youthful offender treatment is an issue which survives a valid waiver of the right to appeal (see People v. Pacherille, 25 NY3d 1021, 1023-1024).CPL 720.10(2), which defines an eligible youth, states, in pertinent part, that every person 16 years of age or older and less than 19 years old when the crime was committed is an eligible youth, unless (1) the defendant was previously convicted and sentenced for a felony, or (2) was “previously… adjudicated a youthful offender following conviction of a felony.” At the time the defendant pleaded guilty to the instant offense, he had been previously convicted and sentenced for the felony of attempted robbery in the second degree and, therefore, was not eligible for youthful offender treatment. Thereafter, the prior felony conviction was vacated, and he was adjudicated a youthful offender for the prior crime.The youthful offender adjudication was subsequent to his plea of guilty for the instant offense. Since the disqualifying circumstance of a youthful offender adjudication following conviction of a felony occurred after he pleaded guilty to the instant offense, the defendant claims that he is eligible for youthful offender treatment with respect to the instant offense, and the resentencing court was required to consider youthful offender treatment for the instant offense.When determining whether a defendant is an eligible youth, the defendant’s status at the time of the conviction—in this case at the time of his plea of guilty—is controlling (see People v. Henning, 116 AD3d 634; People v. Christopher D., 83 AD3d 1091). If the defendant has not been sentenced for a prior felony at the time he or she pleads guilty to the new offense, the defendant is still an eligible youth (see People v. Ramirez, 115 AD3d 992; People v. Mosley, 88 AD2d 520).Here, the defendant had served his sentence on his prior felony conviction at the time he pleaded guilty to the instant offense. The fact that the prior felony conviction was thereafter changed to a youthful offender adjudication made no substantive difference, since both the felony conviction and the youthful offender adjudication were disqualifying. Accordingly, the defendant was not an eligible youth and was not eligible for youthful offender treatment.The defendant’s valid waiver of his right to appeal precludes review of his claim that the sentence was excessive (see People v. Hidalgo, 91 NY2d 733).SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Rivera, J.P.; Chambers, Roman and Iannacci, JJ.MATTER of Samuel W. (Anonymous). Administration for Childrens Services, petitioner- res; Luemay F. (Anonymous), appellant res — (Proceeding No. 1)MATTER of Crystal G. (Anonymous). Administration for Childrens Services, petitioner- res; Luemay F. (Anonymous), appellant res — (Proceeding No. 2) (Docket Nos. N-9330-14, N-9331-14)Mark Brandys, New York, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Melanie T. West of counsel), for petitioner-respondent.Karen P. Simmons, Brooklyn, NY (Barbara H. Dildine, Janet Neustaetter, and Lee Tarr of counsel), attorney for the children.In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of fact-finding of the Family Court, Kings County (Lillian Wan, J.), dated August 1, 2016. The order of fact-finding, insofar as appealed from, upon a decision of the same court dated July 28, 2016, after a fact-finding hearing, found that the mother neglected the child Crystal G. and derivatively neglected the child Samuel W.ORDERED that on the Court’s own motion, the notice of appeal from the decision dated July 28, 2016, is deemed to be a premature notice of appeal from the order of fact-finding dated August 1, 2016 (see CPLR 5520[c]); and it is further,ORDERED that the order of fact-finding dated August 1, 2016, is affirmed insofar as appealed from, without costs or disbursements.The petitioner commenced this proceeding pursuant to Family Court Act article 10 alleging, inter alia, that the mother had neglected the child Crystal G. by inflicting excessive corporal punishment on her, and had derivatively neglected the child Samuel W. After a fact-finding hearing, the Family Court found that the mother had neglected Crystal G. and derivatively neglected Samuel W. The mother appeals.At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Family Ct Act §1046[b][i]; Matter of Tarelle J. [Walter J.], 152 AD3d 593, 594). ”Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect” (Matter of Cheryale B. [Michelle B.], 121 AD3d 976, 977; see Matter of Paul M. [Tina H.], 146 AD3d 961, 962).In a child protective proceeding, prior out-of-court statements may be received and, if properly corroborated, will support a finding of abuse or neglect (see Matter of Nicole V., 71 NY2d 112, 118; Matter of Alexis S. [Edward S.], 115 AD3d 866, 866). Whether corroborative evidence tends to support the reliability of the out-of-court statements is a determination for the Family Court, which saw and heard the witnesses (see Matter of Era O. [Emmanuel O.], 145 AD3d 895, 898; Matter of Nah-Ki B. [Nakia B.], 143 AD3d 703, 706). ”The rule requiring corroboration is flexible, and any other evidence tending to support the reliability of the child’s statements may be sufficient corroboration” (Matter of Christopher L., 19 AD3d 597, 597; see Matter of Nicole V., 71 NY2d at 124).Here, a preponderance of the evidence supports the Family Court’s finding that the mother neglected Crystal G. by inflicting excessive corporal punishment on her (see Matter of Shaquan A. [Fan Fan A.], 137 AD3d 1119, 1120; Matter of Cheryale B. [Michelle B.], 121 AD3d at 977). Crystal G.’s out-of-court statements that the mother choked her were sufficiently corroborated by the observations of Crystal G.’s injuries by two caseworkers and two police officers, the child’s medical records, and photographs of the injuries (see Matter of Nah-Ki B. [Nakia B.], 143 AD3d at 704; Matter of Jallah J. [George J.], 118 AD3d 1000, 1001). Although the mother disputed the allegations, the court’s determination that the mother’s version of events lacked credibility is entitled to deference and is supported by the record (see Matter of Sarah W. [Barbara G.F.], 122 AD3d 931, 932; Matter of Jahani K. [Felicia K.], 111 AD3d 832, 833). Further, the court did not err in rejecting Crystal G.’s in-court partial recantation of her prior out-of-court statements (see Matter of Dayannie I.M. [Roger I.M.], 138 AD3d 747, 748; Matter of Luis N.P. [Alquiber R.], 127 AD3d 1201, 1202; Matter of Charlie S. [Rong S.], 82 AD3d 1248, 1249; Matter of Tristan R., 63 AD3d 1075, 1077).The evidence was also sufficient to support the Family Court’s determination that the child Samuel W. was derivatively neglected (see Matter of Nurridin B. [Louis J.], 116 AD3d 770, 772; Matter of Matthew M. [Fatima M.], 109 AD3d 472, 472).The mother’s remaining contention is without merit.RIVERA, J.P., CHAMBERS, ROMAN and IANNACCI, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.IPFS Corporation, res, v. Manetta Enterprises, Inc., etc., ap — (Index No. 21014/13)Mark D. Speed, New York, NY, for respondent.In an action, inter alia, to recover damages for breach of contract, the defendant Manetta Enterprises, Inc., appeals from a judgment of the Supreme Court, Queens County (Duane A. Hart, J.), entered September 8, 2015. The judgment, upon an order of the same court entered June 25, 2015, granting the plaintiff’s motion for summary judgment on the complaint, is in favor of the plaintiff and against the defendant in the total sum of $483,066.18.ORDERED that the judgment is affirmed, with costs.The plaintiff is an insurance premium finance company that advanced money to the defendant pursuant to a premium finance agreement between the parties. After the defendant repeatedly failed to make the agreed-upon monthly payments in a prompt manner, the plaintiff commenced this action, asserting two causes of action. The first cause of action alleged that the defendant was liable for breach of contract, and demanded $370,328.81, the amount outstanding under the finance agreement, plus interest, in damages. The second cause of action alleged that the defendant was liable for attorney’s fees pursuant to a provision in the finance agreement.Following joinder of issue, the plaintiff moved for summary judgment on the complaint. The defendant opposed the motion, arguing that there was a triable issue of fact as to damages arising from the breach of contract cause of action. In an order entered June 25, 2015, the Supreme Court granted the plaintiff’s motion, and directed the plaintiff to submit proof of legal services provided, with a bill of costs. The plaintiff’s attorney presented an affirmation detailing his education, experience, and ability, as well as the time spent, and the tasks performed, on this matter. In an order entered August 20, 2015, the court determined that, in addition to an award of damages in the amount of $370,328.81, plus interest, for the breach of contract cause of action, the plaintiff was entitled to attorney’s fees in the sum of $30,023.75. The court subsequently issued a judgment entered September 8, 2015, in favor of the plaintiff and against the defendant in the total sum of $483,066.18. The defendant appeals.The Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the breach of contract cause of action. ”The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” (Alliance Natl. Ins. Co. v. Absolut Facilities Mgt., LLC, 140 AD3d 810, 810; see Legum v. Russo, 133 AD3d 638, 639; Provident Bank v. Joyce, 111 AD3d 913, 914; Theresa Striano Revocable Trust v. Hoffman, 71 AD3d 993, 994). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating the existence of the finance agreement and the defendant’s default thereunder (see Alliance Natl. Ins. Co. v. Absolut Facilities Mgt., LLC, 140 AD3d at 810; US Premium Fin. v. Sage Equip. Leasing Corp., 122 AD3d 919, 920; Theresa Striano Revocable Trust v. Hoffman, 71 AD3d at 994). Contrary to the defendant’s contention, it failed to raise a triable issue of fact in opposition (see Zuckerman v. City of New York, 49 NY2d 557, 562; US Premium Fin. v. Sage Equip. Leasing Corp., 122 AD3d at 920).The defendant’s contention that the Supreme Court erred in awarding the plaintiff attorney’s fees without first conducting a hearing is not preserved for appellate review (see CPLR 5501[a][3]; Matter of Landmaster Montg I, LLC v. Town of Montgomery, 72 AD3d 1088, 1089; Matter of Benjamin E. Setareh, P.C. v. Cammarasana & Bilello, Esqs., 35 AD3d 600, 601).RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.Patricia Loughran, etc., ap, v. Dominick J. Giannoti res — (Index No. 15904/14)Weitz & Luxenberg, P.C., New York, NY (David H. Green of counsel), for appellant.Pillinger Miller Tarallo, LLP, Elmsford, NY (Raymond A. Cote of counsel), for respondent Dominick J. Giannoti, and Connors & Connors, P.C., Staten Island, NY (Erik J. McKenna of counsel), for respondent Michael A. Casale (one brief filed).In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated August 10, 2016. The order denied the plaintiff’s motion for leave to enter a default judgment against the defendants and granted the defendants’ cross motion to compel the plaintiff to accept their late answer.ORDERED that the order is reversed, on the law, with costs, the plaintiff’s motion for leave to enter a default judgment against the defendants is granted, and the defendants’ cross motion to compel the plaintiff to accept their late answer is denied.On June 28, 2014, Bryan Loughran, a pedestrian, was struck by a vehicle operated by the defendant Michael A. Casale and owned by the defendant Dominick J. Giannoti. Bryan Loughran died from his injuries later that day. In November 2014, the plaintiff, Patricia Loughran, as administrator of the estate of Bryan Loughran, deceased, and individually, commenced this action against the defendants. In September 2015, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendants based upon their failure to appear in the action or answer the complaint. In October 2015, the defendants cross-moved to compel the plaintiff to accept their late answer. In the order appealed from, the Supreme Court denied the plaintiff’s motion and granted the defendants’ cross motion. The plaintiff appeals.“On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant’s default” (Triangle Props. #2, LLC v. Narang, 73 AD3d 1030, 1032; see CPLR 3215[f]; Liberty County Mut. v. Avenue I Med., P.C., 129 AD3d 783, 784-785; Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649, 651). ”To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable” (Clarke v. Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194; see Woodson v. Mendon Leasing Corp., 100 NY2d 62, 70-71). Here, the plaintiff satisfied all of the requirements for demonstrating her entitlement to enter a default judgment (see Jing Shan Chen v. R & K 51 Realty, Inc., 148 AD3d 689, 690; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 AD3d 1102).To successfully oppose a facially adequate motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense (see Clarke v. Liberty Mut. Fire Ins. Co., 150 AD3d at 1195; Fried v. Jacob Holding, Inc., 110 AD3d 56, 60). Similarly, “[t]o compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Ryan v. Breezy Point Coop., Inc., 76 AD3d 523, 524; see CPLR 3012[d]; Clarke v. Liberty Mut. Fire Ins. Co., 150 AD3d at 1194; Mannino Dev., Inc. v. Linares, 117 AD3d 995, 995; Juseinoski v. Board. of Educ. of City of N.Y., 15 AD3d 353, 356-358). Here, although the defendants demonstrated a reasonable excuse for the delay in serving their answer (see Lehrman v. Lake Katonah Club, 295 AD2d 322), they failed to establish that they had a potentially meritorious defense to the action. The defendants submitted a proposed answer which was verified only by their attorney, and an affirmation from their attorney who did not have personal knowledge of the facts. These documents were insufficient to demonstrate a potentially meritorious defense to the action (see State Farm Mut. Auto. Ins. Co. v. Austin Diagnostic Med., P.C., 153 AD3d 576, 577; Ryan v. Breezy Point Coop., Inc., 76 AD3d at 524).The defendants’ remaining contentions are either unpreserved for appellate review or without merit.Accordingly, the Supreme Court should have granted the plaintiff’s motion for leave to enter a default judgment against the defendants, and denied the defendants’ cross motion to compel the plaintiff to accept their late answer.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Dillon, J.P.; Chambers, Hinds-Radix and Christopher, JJ.MATTER of Amina I. M. J. (Anonymous). Heartshare St. Vincents Services, petitioner- res; Vaughin A. (Anonymous), respondent- appellant res — (Proceeding No. 1)MATTER of Chantilly M. J. (Anonymous). Heartshare St. Vincents Services, petitioner- res; Vaughin A. (Anonymous), respondent- appellant res — (Proceeding No. 2) (Docket Nos. B-521-15, B-522-15)Tammi D. Pere, West Hempstead, NY, for respondent-appellant.Wingate, Kearney & Cullen, LLP, Brooklyn, NY (Kreuza Ganolli of counsel), for petitioner-respondent.Patrick R. Garcia, Brooklyn, NY, attorney for the children.In related proceedings pursuant to Social Services Law §384-b, the father appeals from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated December 12, 2016. The order, after a hearing, granted that branch of the petition which sought a determination that the father’s consent to the adoption of the subject children was not required pursuant to Domestic Relations Law §111.ORDERED that the order is affirmed, without costs or disbursements.The Family Court’s determination that the father’s consent to the adoption of the subject children was not required was supported by clear and convincing evidence (see Matter of Janelle C. [Sean R.], 88 AD3d 787). The father failed to meet his burden of establishing that he maintained substantial and continuous or repeated contact with the children through the payment of support and either regular visitation or other communication with the children (see Domestic Relations Law §111[1][d]; Matter of Seasia D., 10 NY3d 879, 880; Matter of Angelina J. [Frantz J.], 112 AD3d 932; Matter of Julian J.C. [Juan C.], 96 AD3d 937, 938; Matter of Martin V.L. [Martin L.], 88 AD3d 714, 715; Matter of Jaden Dasani-Amru B. [Roy Alphonso B.], 74 AD3d 801, 802).The father’s remaining contention is not properly before this Court on this appeal.DILLON, J.P., CHAMBERS, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Bernard S. (Anonymous), pet, v. Vanessa A. F. (Anonymous), res — (Proceeding No. 1)MATTER of Michael S. (Anonymous), ap, v. Vanessa A. F. (Anonymous), respondent-res; Bernard S. (Anonymous), intervenor-res — (Proceeding No. 2). (Docket Nos. P-1741-14, P-2868-14)In related paternity and custody and visitation proceedings, Michael S. appeals from an order of the Family Court, Richmond County (Karen Wolff, J.), dated November 4, 2016. The order, insofar as appealed from, after a hearing, in effect, denied the paternity petition of Michael S. based upon equitable estoppel, denied the related custody and visitation petition commenced by Michael S., and dismissed both proceedings.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The child who is the subject of these proceedings was born to Vanessa F. in April 2005. No father was named on the birth certificate. In October 2013, Michael S. commenced a paternity proceeding against Vanessa to establish his paternity with respect to the child, and a related custody and visitation proceeding. Another man, Bernard S., commenced a separate paternity proceeding to establish his paternity with respect to the child. Bernard also moved for leave to intervene in Michael’s proceedings, and to dismiss Michael’s paternity petition on the ground of equitable estoppel and Michael’s custody and visitation petition for lack of standing. Vanessa and the attorney for the child supported Bernard’s motion to dismiss Michael’s petitions. A hearing was held on the issue of equitable estoppel and whether it would be in the best interests of the child to order genetic testing. After the hearing, the Family Court found that it was not in the child’s best interests to order genetic testing, and, in effect, denied Michael’s petitions and dismissed his proceedings. The court also stated that it would issue a separate order granting Bernard’s paternity petition. Michael appeals.The Family Court properly applied the doctrine of equitable estoppel to preclude Michael from asserting his paternity claim with respect to the subject child. While the parties in a paternity proceeding generally have the right to a genetic marker test or DNA test, no such test shall be ordered where the Family Court makes a written finding that it is not in the best interests of the child on the basis of, among other grounds, equitable estoppel (see Family Ct Act §532[a]). ”Estoppel may… preclude a man who claims to be a child’s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” (Matter of Shondel J. v. Mark D., 7 NY3d 320, 327). In general, the doctrine of equitable estoppel “is imposed by law in the interest of fairness to prevent the enforcement of rights which would work fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party’s words or conduct, has been misled into acting upon the belief that such enforcement would not be sought” (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 NY2d 175, 184; see Matter of John Robert P. v. Vito C., 23 AD3d 659, 661; Jean Maby H. v. Joseph H., 246 AD2d 282, 285; Matter of Boyles v. Boyles, 95 AD2d 95, 97). An estoppel defense may be invoked “where the failure to promptly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of that right” (Matter of John Robert P. v. Vito C., 23 AD3d at 661; see Matter of Shondel J. v. Mark D., 7 NY3d at 327). ”The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child” (Matter of Smythe v. Worley, 72 AD3d 977, 978; see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6; Matter of Felix O. v. Janette M., 89 AD3d 1089, 1090; Matter of Juan A. v. Rosemarie N., 55 AD3d 827, 827-828; Matter of John Robert P. v. Vito C., 23 AD3d at 661).Here, the hearing evidence demonstrated that Michael was aware, from the time he learned that Vanessa was pregnant with the subject child, that he was possibly the child’s biological father. Michael was further aware that, following the child’s birth, the child was being raised as the son of Bernard. The hearing evidence established that the child had always lived with Bernard, even during times when Vanessa did not, that Bernard alone had supported the child financially, and that the two had established a strong father-son relationship. Michael did not commence the paternity proceeding until October 2013, when the child was eight years old. Under these circumstances, we agree with the Family Court that it was in the child’s best interests to equitably estop Michael from asserting his paternity claim (see Matter of Juanita A. v. Kenneth Mark N., 15 NY3d at 6; Matter of Shondel J. v. Mark D., 7 NY3d at 327; Matter of Carlos O. v. Maria G., 149 AD3d 945, 946; Matter of Joyce S. v. Kevin M., 132 AD3d 1419, 1420; Matter of Richard A.M. v. Alejandra H., 123 AD3d 1129; Matter of Rason S.B. v. Alexis H., 101 AD3d 710, 711; Matter of Fidel A. v. Sharon N., 71 AD3d 437; Matter of Juan A. v. Rosemarie N., 55 AD3d at 828; Matter of Richard W. v. Roberta Y., 240 AD2d 812, 814-815; Matter of Terrence M. v. Gale C., 193 AD2d 437).Michael’s remaining contentions are not properly before this Court, as he did not raise them before the Family Court.MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Barros and Brathwaite Nelson, JJ.MATTER of Isabella M. (Anonymous). Orange County Department of Social Services, pet; Benida M. (Anonymous), res — (Proceeding No. 1)MATTER of Joseph G. (Anonymous), ap — Orange County Department of Social Services, petitioner-res; Benida M. (Anonymous), res-res — (Proceeding No. 2)MATTER of Santiago A. (Anonymous), Jr. Orange County Department of Social Services, pet; Benida M. (Anonymous), res — (Proceeding No. 3) (Docket Nos. B-6121-11/15C, B-6122-11/15C, B-6123-11/15C)In related proceedings pursuant to Social Services Law §384-b to terminate parental rights, the child Joseph G. appeals from an order of the Family Court, Orange County (Carol S. Klein, J.), dated July 21, 2017. The order, insofar as appealed from, upon remittitur from this Court by decision and order dated February 22, 2017, and after a hearing, limited the mother’s supervised visitation with the child Joseph G. to weekly telephone contact for no more than 15 minutes and one letter per month.ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.This is a proceeding to terminate the mother’s parental rights based upon her permanent neglect of the subject child, Joseph G. The mother consented to a finding of permanent neglect. On a prior appeal, this Court, inter alia, remitted the matter to the Family Court, Orange County, for a new dispositional hearing to determine the best interests of the child, including the continuation of the mother’s supervised visitation at the facility where the child resides (see Matter of Isabella M. [Benida M.], 147 AD3d 1061). Following a hearing, the Family Court limited the mother’s supervised visitation with the child to weekly telephone contact for no more than 15 minutes and one letter per month. The child appeals.“‘[T]he determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record’” (Matter of Smith v. Dawn F.B., 88 AD3d 729, 729, quoting Matter of Lane v. Lane, 68 AD3d 995, 997). Here, the Family Court’s determination has a sound and substantial basis in the record and, thus, will not be disturbed.MASTRO, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Maltese and Barros, JJ.MATTER of Jaye Miller, ap, v. Richard Shaw, res — (Docket No. V-332-15)In a child custody and visitation proceeding, the mother appeals from an order of the Family Court, Richmond County (Alexandra Byun, Ct. Atty. Ref.), dated April 4, 2017. The order, insofar as appealed from, after a hearing, granted the father’s cross petition to modify the mother’s visitation schedule set forth in two orders dated March 22, 2007, and January 19, 2011, respectively.ORDERED that the order dated April 4, 2017, is affirmed insofar as appealed from, with costs.In this child custody and visitation proceeding, the parties have one child together, born in 2000. By order dated March 22, 2007, the father was awarded sole custody of the child, with visitation to the mother. By order dated January 19, 2011, the father was granted leave to relocate with the child to Virginia. The visitation schedule was modified to grant the mother, inter alia, six weeks of visitation in the summer. In 2014, the father relocated to Florida with his wife and the child. The mother subsequently filed a petition to modify the order of custody and visitation so as to award her custody of the subject child. The father filed a cross petition to modify the mother’s visitation schedule set forth in the two orders dated March 22, 2007, and January 19, 2011, respectively. A fact-finding hearing and an in camera hearing were held. By order dated April 4, 2017, the Family Court denied the mother’s petition for custody and granted the father’s cross petition to modify the mother’s visitation schedule, reducing the mother’s visitation with the child during his summer vacation from six weeks to two nonconsecutive weeks. The mother appeals from so much of the order dated April 4, 2017, as granted the father’s cross petition to modify her visitation schedule.The Family Court did not err in granting the father’s cross petition to modify the mother’s visitation schedule. In order to modify an existing court-ordered custody or visitation arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Condon v. Verdile, 151 AD3d 849; Gentile v. Gentile, 149 AD3d 916; Matter of Hargrove v. Langenau, 138 AD3d 846). The best interests of the child must be determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 NY2d 167, 174; Matter of Hargrove v. Langenau, 138 AD3d at 847; Maynard v. Maynard, 138 AD3d 794). ”[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances” (Matter of Dorsa v. Dorsa, 90 AD3d 1046, 1047 [internal quotation marks omitted]). Here, the child’s changing needs as he grew older constituted a change in circumstances warranting modification of the visitation schedule so as to reduce the mother’s summer visitation with the child (see Matter of Chase v. Benjamin, 44 AD3d 1130).Furthermore, a child’s expressed preference, while not determinative, may also be indicative of the child’s best interests (see Matter of Crowder v. Austin, 90 AD3d 753, 754; Matter of Chery v. Richardson, 88 AD3d 788, 789). In weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child (see Eschbach v. Eschbach, 56 NY2d at 173; Matter of Nevarez v. Pina, 154 AD3d 854). Here, despite expressing his love for his mother and his desire not to hurt her, the child unequivocally expressed his desire not to have extended visitation with the mother, articulating legitimate reasons in support of this preference. The child noted his schooling and preparation for college, as well as the numerous activities in which he participates in Florida, as some of the reasons why he wanted to spend less time in New York. The child was 16 years old and had a notable level of maturity, which clearly enabled him to form and express his own desires, and there is nothing in the record to indicate that influence was exerted on him by anyone. Accordingly, the Family Court’s determination is supported by a sound and substantial basis in the record (see Matter of Nicholas v. Nicholas, 107 AD3d 899, 900).The mother’s contention that the Family Court erred in failing to impose all visitation-related travel expenses on the father is without merit.CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Cohen, Duffy and Iannacci, JJ.MATTER of Albino Carino, res, v. Adela Carino, ap — (Proceeding No. 1)MATTER of Adela Carino, ap, v. Albino Carino, res — (Proceeding No. 2) (Docket Nos. V-27548-13, V-27549-13, V-27551-13, V-27552-13)In a child custody proceeding, the mother appeals from an order of the Family Court, Kings County (Ann O’Shea, J.), dated December 12, 2016. The order, upon the mother’s default in appearing at a continued hearing, denied her petition for custody of the parties’ children and granted the father’s petition for custody of the children. 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 appeal is dismissed, without costs or disbursements; and it is further,ORDERED that counsel’s application for leave to withdraw as counsel is dismissed as academic, without costs or disbursements.No appeal lies from the order dated December 12, 2016, as it was entered upon the mother’s default in appearing at a continued hearing (see Matter of Andrew J.U.M. [Jelaine E.M.], 154 AD3d 758, 758-759; Matter of Iyana W. [Shamark W.], 124 AD3d 418; Matter of Jalaya A.C. [Deidra J.], 112 AD3d 623, 624).SCHEINKMAN, P.J., COHEN, DUFFY and IANNACCI, JJ., concur.By Leventhal, J.P.; Miller, Lasalle and Brathwaite Nelson, JJ.MATTER of Amy R. Gurvey, pet, v. Acosta, etc., res — Amy R. Gurvey, Upper Montclair, NJ, petitioner pro se.Eric T. Schneiderman, Attorney General, New York, NY (David Lawrence III of counsel), for respondent.Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Honorable Acosta, the Presiding Justice of the Appellate Division, First Judicial Department, to direct the Chief Attorney of the First Department Attorney Grievance Committee to produce to her certain documents. By decision and order on motion dated January 23, 2018, the Appellate Division, First Judicial Department, transferred the proceeding to this Court. Motion by the petitioner, inter alia, for an order directing the respondent to vacate all orders entered by the Appellate Division, First Judicial Department, since 2008 in proceedings involving the petitioner.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.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 has failed to establish a clear legal right to the relief sought.LEVENTHAL, J.P., MILLER, LASALLE and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Austin, Connolly and Iannacci, JJ.PEOPLE, etc., res, v. Scott Plass, ap — (Ind. No. 127/13)Bruce A. Petito, Poughkeepsie, NY, for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Dutchess County (Victor Alfieri, J.), rendered May 27, 2015, convicting him of criminal sexual act in the third degree (six counts), sexual abuse in the third degree (three counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Stephen L. Greller, J.), of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement authorities.ORDERED that the judgment is affirmed.The defendant was charged with criminal sexual act in the third degree (six counts), sexual abuse in the third degree (three counts), and endangering the welfare of a child, for conduct against a victim who was 16 years old at the time of the offenses. The County Court denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement authorities, and his separate motion to sever count 10 of the indictment, which charged endangering the welfare of a child, on the ground that the acts underlying that charge were alleged to have been committed outside the court’s jurisdiction. After a trial, a jury convicted the defendant of all 10 counts.Pursuant to CPL 20.40, and insofar as is relevant here, a County Court has jurisdiction over an offense where, inter alia, conduct occurred within the county which was sufficient to establish an element of the offense (see People v. Guzman, 153 AD3d 1273, 1275). Two offenses are properly joinable in the same indictment pursuant to CPL 200.20(2)(b) when they are based upon different criminal transactions, but they “are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second,” or, pursuant to subsection (c), when they are “defined by the same or similar statutory provisions and consequently are the same or similar in law” (CPL 200.20[2][b], [c]). A defendant may seek severance of counts joined under subsection (c) “in the interest of justice and for good cause shown” (CPL 200.20[3]; see People v. Lane, 56 NY2d 1, 7; People v. Haywood, 124 AD3d 798, 800). Good cause exists where, inter alia, there is substantially more evidence as to one offense than the others and the jury is unlikely to be able to separate them or where the defendant demonstrates that he has important testimony to give regarding one count and a genuine need to refrain from testifying as to the other (see CPL 200.20[3][a], [b]). However, where counts are properly joined under subsection (b), a court does not have the authority to sever the counts (see People v. Bonilla, 127 AD3d 985, 986; People v. Beecham, 74 AD3d 1216).Here, the alleged conduct forming the basis for count 10 of the indictment occurred in both Dutchess and Suffolk Counties, and proof of the conduct constituting the other nine counts was material and admissible as evidence in chief as to count 10. Further, the conduct which allegedly occurred in Dutchess County was sufficient to establish an element of the offense of endangering the welfare of a child (see CPL 20.40[1][a]). Accordingly, count 10 was properly joined to the other counts pursuant to CPL 200.20(2)(b), and the County Court correctly concluded that it lacked the authority to sever it (see People v. Bonilla, 127 AD3d at 986; People v. Beecham, 74 AD3d at 1216).“At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant’s statements were voluntary” (People v. Johnson, 139 AD3d 967, 969, affd 2018 WL 1413471; see People v. Jin Cheng Lin, 26 NY3d 701, 719; People v. Thomas, 22 NY3d 629, 641; People v. Williams, 62 NY2d 285, 288-289). If the People meet their burden, the defendant then bears the burden of persuasion (see People v. Johnson, 139 AD3d at 969; People v. Santos, 112 AD3d 757, 758; People v. Aveni, 100 AD3d 228, 237). A hearing court’s credibility determinations are entitled to deference and will not be disturbed unless they are not supported by the record (see People v. Mateo, 2 NY3d 383, 413; People v. Johnson, 139 AD3d at 970; People v. Hobson, 111 AD3d 958, 959; People v. Baliukonis, 35 AD3d 626, 627).Here, the defendant contends that the police deceived him by implying that making statements against his penal interest would be to his advantage. However, generalized promises of leniency do not create a substantial risk that a defendant might falsely incriminate himself or herself (see People v. Lugo, 60 AD3d 867, 868-869; People v. Rufino, 293 AD2d 498, 499), and there is nothing in this record to suggest that the statements made by the police were of a nature that they would have overborne the defendant’s will (see People v. Mateo, 2 NY3d at 413; People v. Johnson, 139 AD3d at 969-970). Therefore, the County Court properly denied that branch of the defendant’s omnibus motion which was to suppress his statements to the police.The evidence presented against a defendant is legally sufficient if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v. Taylor, 94 NY2d 910, 911 [internal quotation marks omitted]; see People v. Davis, 28 NY3d 294, 300; People v. Denson, 26 NY3d 179, 188; People v. Heidgen, 22 NY3d 259, 277; People v. Abraham, 22 NY3d 140, 146). Contrary to the defendant’s contention, the victim’s testimony as to his date of birth and the defendant’s own statement of his date of birth to the police were legally sufficient to establish a lack of consent based upon incapacity to consent because the victim was less than 17 years old (see Penal Law §130.05[1], [2][b]; [3][a]), and thus to support the defendant’s convictions of criminal sexual act in the third degree (see Penal Law §130.40[2]) and sexual abuse in the third degree (see Penal Law §130.55). In addition, the defendant’s convictions were not against the weight of the evidence (see People v. Kancharla, 23 NY3d 294, 302-303; People v. Danielson, 9 NY3d 342, 348; People v. Bleakley, 69 NY2d 490, 495).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).RIVERA, J.P., AUSTIN, CONNOLLY and IANNACCI, JJ., concur.By Chambers, J.P.; Roman, Barros and Christopher, JJ.MATTER of Zahyre A. (Anonymous). Orange County Department of Social Services, res; Faye A. (Anonymous), ap — (Proceeding No. 1)MATTER of JaFaysia M. (Anonymous). Orange County Department of Social Services, res; Faye A. (Anonymous), ap — (Proceeding No. 2) (Docket Nos. N-3308-16, N-3309-16)In related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of disposition of the Family Court, Orange County (Victoria B. Campbell, J.), entered May 30, 2017. The order of disposition, insofar as appealed from, after a hearing, and upon the consent of the mother to a finding of neglect without admission, determined that the best interests of the children required that they be placed in the custody of the Commissioner of Social Services of Orange County.ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.On July 21, 2016, the petitioner, Orange County Department of Social Services, filed a petition alleging that the mother neglected the subject children. Upon the mother’s consent to a finding of neglect without admission, the Family Court, after a dispositional hearing, determined that the best interests of the children required that they be placed in the custody of the Commissioner of Social Services of Orange County. The mother appeals.“The paramount concern in a dispositional hearing is the best interests of the child. The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect” (Matter of Eric Z. [Guang Z.], 100 AD3d 646, 648 [internal quotation marks omitted]; see Matter of Phillips N. [Joy N.], 104 AD3d 690; Matter of Lemar H., 23 AD3d 383). The Family Court’s assessment of credibility of the witnesses is entitled to considerable deference unless clearly usupported by the record (see Matter of Ariel R. [Danielle K.], 118 AD3d 1010, 1010). Here, the Family Court properly determined that the mother’s mental illness rendered her unable to ensure that the children obtain appropriate medical care and attend school regularly. Thus, the court properly placed the children in the custody of the Commissioner of Social Services of Orange County.The mother’s remaining contentions are either based on matters dehors the record and thus not properly before this Court (see Matter of Brian S. [Tanya S.], 141 AD3d 1145; Matter of Gridley v. Syrko, 50 AD3d 1560) or not preserved for appellate review (see Matter of Tia B., 257 AD2d 366).CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.PEOPLE, etc., res, v. Zachary Parker, ap — (S.C.I. No. 1170/12)Andrea G. Hirsch, New York, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Mary Faldich of counsel), for respondent.Appeal by the defendant from an order of the County Court, Nassau County (Helene F. Gugerty, J.), dated June 15, 2016, which denied his motion pursuant to CPL 160.58 to conditionally seal the record of his convictions of criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree, and criminal possession of marihuana in the fifth degree.ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the County Court, Nassau County, for further proceedings in accordance herewith.In 2012, the defendant pleaded guilty to driving while ability impaired by drugs, as a misdemeanor, in violation of Vehicle and Traffic Law §1192.4 (hereinafter DWAI), criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree, and criminal possession of marihuana in the fifth degree. An aggregate sentence of imprisonment of 2  years was imposed upon these convictions. However, the court placed the defendant in the “shock incarceration program” (see Correction Law art 26-A; hereinafter Shock), and he served his sentence for the instant offenses in that program. The defendant was released from Shock, which included intensive alcohol and substance abuse treatment, after six months, and served a period of postrelease supervision (hereinafter PRS) of one year, during which time, it is undisputed, he continued his treatment and toxicology screening for a period of at least five months. It is also undisputed that, upon his release, the defendant graduated from college, relocated out of state to seek employment, and applied to graduate school.The defendant thereafter moved pursuant to CPL 160.58 to seal all official records and papers relating to his arrest, prosecution, and conviction of criminal possession of a controlled substance in the fifth and seventh degrees, and criminal possession of marihuana in the fifth degree. The County Court denied the motion, based solely on its conclusion that the defendant was not eligible for conditional sealing under that statute by virtue of the fact that he had also been convicted of DWAI, which was not a qualifying offense under CPL 160.58. The defendant appeals.Contrary to the County Court’s conclusion, the defendant was eligible to have the record of his convictions of the drug related offenses conditionally sealed under CPL 160.58. CPL 160.58 was enacted as part of the Drug Law Reform Act (hereinafter DLRA) of 2009 (see L 2009, ch 56, pt AAA, §3; People v. Jihan QQ., 151 AD3d 1245). It provides that a defendant convicted of any offense defined in articles 220 or 221 of the Penal Law or a specified offense defined in CPL 410.91, “who has successfully completed a judicial diversion program under [CPL article 216], or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section” (CPL 160.58[1]). The Court of Appeals has emphasized that the DLRA is remedial, and “should be read broadly unless the limitation proposed is ‘clearly expressed’” (People v. Brown, 25 NY3d 247, 251, quoting People v. Sosa, 18 NY3d 436, 441; see People v. Coleman, 24 NY3d 114, 122).We conclude, first, that the County Court erroneously interpreted CPL 160.58 as prohibiting sealing in light of the DWAI conviction. CPL 160.58 does not contain a “clearly expressed” limitation on a court’s authority to order sealing in cases in which a defendant pleads guilty to an accusatory instrument that contains an offense that does not qualify for sealing. Indeed, the fact that the statute refers to the sealing of an “offense” suggests that discrete offenses may be sealed even if an accusatory instrument to which a defendant pleaded guilty contained other offenses. Had the Legislature intended to limit the court’s authority as the County Court found, it could easily have specified that sealing was confined to cases in which a defendant was charged only with offenses defined in articles 220 and 221 of the Penal Law or a specified offense defined in CPL 410.91. Particularly in light of the expansive approach taken by the Court of Appeals in interpreting the DLRA, the omission of a limitation on a court’s authority to seal qualifying drug offenses when coupled in an accusatory instrument with nonqualifying offenses should be interpreted as intentional (see generally People v. Jackson, 87 NY2d 782, 788; cf. People v. Smith, 139 AD3d 131).We further conclude that, contrary to the People’s contention, by successfully completing court-ordered Shock incarceration and further treatment during his period of PRS, the defendant successfully completed a “judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as judicial diversion and drug treatment alternative to prison. As described in the relevant regulations: “Shock incarceration is an alternative form of correctional life stressing a highly structured and regimented daily routine which includes extensive discipline and counseling” (7 NYCRR 1800.6[a]). Originally, the selection of inmates for Shock lay solely in the discretion of the New York State Department of Corrections and Community Supervision (hereinafter DOCCS); courts and prosecutors had no authority to grant admission into the program (see Correction Law §867; People ex rel. Dickerson v. Unger, 62 AD3d 1262, 1263; People v. Taylor, 284 AD2d 573). However, as part of the DLRA of 2009, a provision was added to Penal Law §60.04 which allows courts imposing a sentence of imprisonment for a controlled substance or marihuana offense to issue an order directing that DOCCS enroll the defendant in Shock (see CPL 60.04[7][a]). The enactment of this provision essentially permits courts to direct that certain drug offenders be given the opportunity to serve a shortened but intensified sentence with a major focus on treatment and counseling.It is undisputed that a major component of the defendant’s participation in Shock was his completion of an intensive alcohol and substance abuse treatment program. Indeed, under the regulations, the daily inmate schedule at a Shock incarceration facility is to include group meetings and substance abuse counseling (see 7 NYCRR 1800.6[a]). Further, the Shock regulations require that each inmate be evaluated weekly by his or her “drug counselor,” and these evaluations are reviewed monthly by “supervisors and department heads,” who complete a “monthly review summary sheet” (7 NYCRR 1800.6[c][2], [3]). The inmate’s final review must be at least satisfactory in order to successfully complete the program (see 7 NYCRR 1800.6[c][4]).The People argue that the defendant was not eligible for sealing because Shock is not similar in duration to judicial diversion or drug treatment alternative to prison. This assertion overlooks both the intensity of Shock and the fact that the defendant thereafter served a period of PRS during which he engaged in counseling and toxicology screening. The People further contend that the level of supervision the defendant experienced was not comparable to judicial diversion or drug treatment alternative to prison because individuals participating in Shock do not make periodic court appearances. However, CPL 160.58 refers to drug treatment programs that are judicially “sanctioned,” not judicially supervised. Here, the defendant was evaluated weekly and monthly while in the Shock facility, and supervised thereafter by the Division of Parole.CPL 160.58 serves to assist drug offenders who have successfully completed court-sanctioned treatment with their re-entry efforts. Interpreting that provision broadly to effectuate its remedial purpose, we conclude that the defendant in this case, having completed court-ordered Shock incarceration and a period of PRS that included further treatment, demonstrated his eligibility for conditional sealing of his drug offenses. Indeed, it is reasonable to construe any ambiguity in the eligibility section of CPL 160.58 in favor of the applicant since a finding of eligibility is merely the first step in the process; the ultimate decision regarding whether to seal convictions is a matter of discretion vested in the reviewing judge (cf. People v. Brown, 25 NY3d at 251; People v. Sosa, 18 NY3d at 443).Since we conclude that the defendant was eligible for conditional sealing under CPL 160.58, we reverse the order denying the defendant’s motion on the ground that he was ineligible for that relief. In light of its finding of ineligibility, the County Court did not make the required discretionary finding in this case. Under the circumstances of this case, we deem it appropriate to remit the matter to the County Court, Nassau County, for a hearing “to consider and review any relevant evidence offered by either party that would aid the court in its decision whether to seal the records of the defendant’s arrests, prosecutions and convictions” (CPL 160.58[3]), and a new determination of the defendant’s motion thereafter.The People’s remaining contentions are either without merit or improperly raised for the first time on appeal.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Scheinkman, P.J.; Dillon, Miller, Hinds-Radix and Iannacci, JJ.PEOPLE, etc., res, v. Luis Rodriguez, ap — (Ind. No. 4101/14)Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, and Morgan J. Dennehy of counsel; Robert Ho on the memorandum), for respondent.Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Neil Jon Firetog, J.), imposed October 8, 2015, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.As the People correctly concede, the defendant’s waiver of the right to appeal was invalid (see People v. Bradshaw, 18 NY3d 257, 265; People v. Brown, 122 AD3d 133; People v. Stewart, 136 AD3d 624). However, the sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., DILLON, MILLER, HINDS-RADIX and IANNACCI, JJ., concur.By Dillon, J.P.; Miller, Barros and Christopher, JJ.PEOPLE, etc., res, v. Robert Gray, ap — (Ind. No. 2326-14)Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered January 7, 2016, convicting him of menacing in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.On July 4, 2014, the defendant and the complainant were in the defendant’s apartment when the defendant’s licensed revolver discharged. The complainant alleged that the defendant threatened him at gunpoint and fired the weapon. According to the defendant, the weapon discharged as he was attempting to take it away from the complainant, who was threatening to kill himself.The defendant’s contention that the County Court deprived him of his right to present a defense by precluding the testimony of a witness that the complainant expressed suicidal thoughts one year before the subject incident is without merit. ”A court’s discretion in making evidentiary rulings is circumscribed by the rules of evidence and the defendant’s constitutional right to present a defense” (People v. Taylor, 40 AD3d 782, 783; see People v. Bradley, 99 AD3d 934, 936; People v. Ocampo, 28 AD3d 684, 695). Here, the court providently exercised its discretion in precluding the proffered testimony, as it was speculative and too remote in time to suggest that the complainant was suicidal on the relevant date or otherwise responsible for the incident (see People v. Ragland, 240 AD2d 598).The defendant’s contention that the evidence was legally insufficient to prove his guilt beyond a reasonable doubt is unpreserved for appellate review (see People v. Hawkins, 11 NY3d 484, 492). 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 of menacing in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (People v. Mateo, 2 NY3d 383, 410; People v. Jenkins, 81 AD3d 662, 662). Upon reviewing the record here, we conclude that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633, 643-644).DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.By Chambers, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.Marina Soloveychik, res, v. Sea Isle Owners, Inc., ap — (Index No. 501424/14)In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated April 6, 2017. The order denied the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On January 31, 2014, the plaintiff allegedly slipped and fell on an ice condition on the sidewalk abutting the defendant’s apartment building in Brooklyn. According to the plaintiff, her parents resided in the building, and she was bringing her father home when the incident occurred. The plaintiff testified at her deposition that she parked her vehicle on the street in front of the building and that she had to step over a pile of snow to reach the sidewalk from the street. She also testified that there were patches of snow and ice and lumps of ice scattered across the sidewalk. The plaintiff assisted her father in traversing the sidewalk to enter the main entrance of the building without incident. According to her deposition testimony, she slipped and fell on an ice condition as she walked back across the sidewalk to her vehicle.Thereafter, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that it neither created the alleged ice condition nor had actual or constructive notice of it. The Supreme Court denied the motion, and the defendant appeals.Pursuant to Administrative Code of the City of New York §7-210, the defendant had a duty to maintain the sidewalk abutting its premises (see Gyokchyan v. City of New York, 106 AD3d 780, 780-781). Hence, on its motion for summary judgment, the defendant had the burden of establishing, prima facie, that it neither created the alleged ice condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Smith v. New York City Hous. Auth., 124 AD3d 625; Dhu v. New York City Hous. Auth., 119 AD3d 728; Cruz v. Rampersad, 110 AD3d 669; Denardo v. Ziatyk, 95 AD3d 929, 930).In support of its motion, the defendant submitted, inter alia, the deposition testimony of the plaintiff and the superintendent of its building. The plaintiff testified that no precipitation was falling at the time of the incident, and neither her testimony nor that of the superintendent established when it last snowed prior to the incident or what the weather conditions were in the hours and days preceding the incident. The defendant did not submit any evidence as to when the superintendent or a member of his staff last removed snow and ice from the sidewalk prior to the incident, or what the sidewalk looked like after the superintendent or a member of his staff performed that work. Additionally, the defendant did not submit any evidence as to when the sidewalk was last inspected prior to the incident. In that regard, the superintendent only testified about the building’s general sidewalk maintenance practices, including its snow and ice removal policy. Under the circumstances, the defendant failed to eliminate all triable issues of fact as to whether it created the alleged ice condition or had actual or constructive notice of it (see Rong Wen Wu v. Arniotes, 149 AD3d 786, 787; Dhu v. New York City Hous. Auth., 119 AD3d 728). Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff’s opposition papers.Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.CHAMBERS, J.P., HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.MATTER of Broadway Barbeque Corporation, et al., petitioners/plf-ap, v. New York City Department of Health and Mental Hygiene, et al., respondents/def-res — (Index No. 12658/14)Spero Andreopoulos, Astoria, NY, for petitioners/plaintiffs-appellants.Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Megan E.K. Montcalm of counsel), for respondents/defendants-respondents.In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioners/plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 29, 2015. The order and judgment granted that branch of the motion of the respondents/defendants which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the petition/complaint as time-barred and, in effect, dismissed the proceeding/action.ORDERED that the order and judgment is affirmed, with costs.In March 2010, the respondent/defendant New York City Board of Health adopted section 81.51 of the New York City Health Code, which authorizes the grading of inspection results for certain food service establishments and the posting of those grades (see NY City Health Code [24 RCNY] §81.51). This grading system was implemented in July 2010. In August 2014, the petitioners/plaintiffs (hereinafter the appellants) commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief challenging the authority of the respondents/defendants (hereinafter the respondents) to implement the grading system and seeking to invalidate that system. The Supreme Court denied the petition/complaint without prejudice to renew upon proper papers.Thereafter, the appellants filed a second petition/complaint dated May 29, 2015 (hereinafter the 2015 petition), which alleged, inter alia, that the grading system was implemented in violation of lawful procedure, affected by an error of law, and arbitrary and capricious. The 2015 petition also sought declaratory and injunctive relief. In the order and judgment appealed from entered December 29, 2015, the Supreme Court granted that branch of the respondents’ motion which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the 2015 petition as time-barred and, in effect, dismissed the proceeding/action (hereinafter proceeding). We affirm.“[W]here a quasi-legislative act by an administrative agency… is challenged on the ground that it ‘was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ (CPLR 7803[3]), a proceeding in the form prescribed by article 78 can be maintained and, as a corollary matter, the four-month Statute of Limitations that ordinarily governs such proceedings is applicable” (New York City Health & Hosps. Corp. v. McBarnette, 84 NY2d 194, 204; see Walton v. New York State Dept. of Correctional Servs., 8 NY3d 186, 194). Here, although the 2015 petition sought injunctive and declaratory relief, the gravamen of the 2015 petition was that the grading system was implemented in violation of lawful procedure, affected by an error of law, and arbitrary and capricious. Therefore, the Supreme Court correctly determined that the four-month statute of limitations set forth in CPLR 217(1) applies to this proceeding (see Matter of Greens at Half Hollow, LLC v. Suffolk County Dept. of Pub. Works, 147 AD3d 942, 944; Tornheim v. Fiala, 136 AD3d 797, 797; Thrun v. Cuomo, 112 AD3d 1038, 1040-1041; Long Is. Power Auth. Ratepayer Litig., 47 AD3d 899, 900; Matter of Peckham Materials Corp. v. Westchester County, 303 AD2d 511, 511-512).Furthermore, the Supreme Court properly granted that branch of the respondents’ motion which was pursuant to CPLR 3211(a)(5) and 7804(f) to dismiss the 2015 petition as time-barred. The appellants challenge the adoption of the grading system, which became effective in July 2010. Inasmuch as the appellants did not commence the instant proceeding until August 2014, more than four years later, their causes of action are time-barred (see CPLR 217[1]; Thrun v. Cuomo, 112 AD3d at 1041; Matter of Peckham Materials Corp. v. Westchester County, 303 AD2d at 512).The appellants’ remaining contentions either are without merit or need not be reached in light of our determination.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Balkin, J.P.; Roman, Miller and Brathwaite Nelson, JJ.MATTER of Esther M. Conroy, petitioner- res, v. Annemarie D. Conroy, ap, et al., res — (Docket Nos. V-4683-15, V-4684-15)Ronna L. DeLoe, New Rochelle, NY, attorney for the children.In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), entered January 11, 2017. The order, after a hearing, granted the paternal grandmother’s petition for custody of the subject children.ORDERED that the order is affirmed, without costs or disbursements.In October 2015, the paternal grandmother filed a petition for custody of the two subject children, who were nine and almost six years old at the time. The mother opposed the petition and sought dismissal on the ground that the paternal grandmother had not alleged the existence of extraordinary circumstances so as to give her standing to seek custody. The father did not oppose the petition. The Family Court denied the mother’s application to dismiss the petition and held a hearing to determine whether extraordinary circumstances existed. At the close of the hearing as to extraordinary circumstances, the mother again asked the court to dismiss the petition on the ground that the paternal grandmother had not demonstrated the existence of extraordinary circumstances. The court denied the mother’s application, holding that the evidence demonstrated persisting neglect by both parents and abandonment by the father.Subsequently, the Family Court conducted a hearing to determine what custodial arrangement would be in the children’s best interests. After the hearing, the court determined that the best interests of the children would be served by giving the paternal grandmother primary physical custody, with legal custody shared by the paternal grandmother, the mother, and the father. In an order entered January 11, 2017, the court granted the paternal grandmother’s custody petition. The court also provided for frequent parenting time for the mother and the father, and it directed that the parents enroll in, and successfully complete, a parenting program, as well as undergo therapy. The mother appeals.“Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition” (Matter of Bennett v. Jeffreys, 40 NY2d 543, 545; see Matter of Corey L v. Martin L, 45 NY2d 383, 391; Matter of Bailey v. Carr, 125 AD3d 853, 854). Nevertheless, upon a showing of extraordinary circumstances, a grandparent of a minor child has standing to apply for custody of the child as against a parent (see Domestic Relations Law §72[2][a]; Family Ct Act §651[b]; Matter of Suarez v. Williams, 26 NY3d 440, 446; Matter of Bennett v. Jeffreys, 40 NY2d at 546-548; Matter of Schmitt v. Troche, 155 AD3d 739, 740). Extraordinary circumstances include, among other things, surrender, abandonment, persisting neglect, and unfitness (see Matter of Suarez v. Williams, 26 NY3d at 446; Matter of Bennett v. Jeffreys, 40 NY2d at 544, 546; Matter of Schmitt v. Troche, 155 AD3d at 740). If the grandparent establishes standing by demonstrating the existence of extraordinary circumstances, the court shall then make an award of custody based on the best interests of the child (see Matter of Suarez v. Williams, 26 NY3d at 446; Matter of Bennett v. Jeffreys, 40 NY2d at 548; Matter of Schmitt v. Troche, 155 AD3d at 740).Here, the Family Court properly found that the paternal grandmother demonstrated the existence of extraordinary circumstances. The children’s parents were either unable or unwilling to provide the children with basic personal hygiene, clean clothes, adequate medical or dental care, or an appropriate place to sleep, and they also lacked insight into the children’s particular needs, which included multiple special needs with respect to one of the children (see Matter of Sofia S.S. [Goldie M.---Elizabeth C.], 145 AD3d 787, 789; Matter of Rochelle C. v. Bridget C., 140 AD3d 749, 750; Matter of North v. Yeagley, 96 AD3d 949, 950; Matter of Donohue v. Donohue, 44 AD3d 1042, 1043). In particular, the mother forgot to feed the children on several occasions, and the children often came to school hungry and dressed in dirty clothing that smelled of cat urine and feces. Moreover, the parents did not remedy the situation, despite multiple efforts by school personnel.After finding the existence of extraordinary circumstances, the Family Court next inquired into what custodial arrangement would serve the children’s best interests. The court properly determined that the children’s best interests would be served by shared legal custody among the paternal grandmother and parents, with primary residential custody to the paternal grandmother and frequent contact and visitation between the parents and the children. Although the mother’s expressed desire and commitment to provide better care to her children is commendable, inasmuch as the Family Court’s determinations have a sound and substantial basis in the record, we decline to disturb them (see Matter of Geter v. Gray, 141 AD3d 586, 587).BALKIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.By Balkin, J.P.; Leventhal, Hinds-Radix and Maltese, JJ.PEOPLE, etc., res, v. Joshua Zamfino, ap — (Ind. No. 13-00180)Richard L. Herzfeld, New York, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Robert A. Neary, J.), rendered May 7, 2014, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.ORDERED that the judgment is affirmed.The hearing court properly declined to suppress identification testimony. ”A photographic display is suggestive when some characteristic of one picture draws the viewer’s attention to it, indicating that the police have made a particular selection” (People v. Miller, 33 AD3d 728, 728-729; see People v. Ortiz, 84 AD3d 839, 840; People v. Ferguson, 55 AD3d 926, 927). Here, all of the other men depicted in the six-photograph array appeared to be close in age to the defendant and had facial features, hairstyles, facial hair, and skin tones similar to the defendant. Although the defendant’s facial scar was visible in the photograph, at least one other individual had a facial scar. Moreover, when considered in light of the similarities in the photographs, the scar did not create a substantial likelihood that the defendant would be singled out for identification (see People v. Chipp, 75 NY2d 327, 336; People v. Ortiz, 84 AD3d at 840; People v. Ferguson, 55 AD3d at 927).The defendant’s contention that the verdict was repugnant because the jury found him guilty of assault in the second degree but acquitted him of criminal possession of a weapon in the third degree is unpreserved for appellate review, as he failed to raise the issue before the discharge of the jury (see People v. Satloff, 56 NY2d 745, 746; People v. Smith, 142 AD3d 1027, 1028; People v. Moses, 36 AD3d 720, 720), and we decline to review it in the exercise of our interest of justice jurisdiction (cf. CPL 470.15[6][a]; People v. Rayam, 94 NY2d 557, 562-563).Contrary to the defendant’s contention, the fact that the jury acquitted him of criminal possession of a weapon in the third degree does not undermine the weight of the evidence supporting the jury’s verdict convicting him of assault in the second degree (see People v. Rayam, 94 NY2d at 562-563; People v. Choi, 137 AD3d 808, 809). An intermediate appellate court conducting a weight of the evidence review of a mixed verdict may consider “‘the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy’” (People v. Rayam, 94 NY2d at 562 [emphasis omitted], quoting People v. Tucker, 55 NY2d 1, 7), and need not “assume the basis for any implied inconsistencies in mixed jury verdicts” (People v. Rayam, 94 NY2d at 563; see People v. Choi, 137 AD3d at 809; People v. Pierre, 126 AD3d 817, 817). Upon reviewing the record here, we are satisfied that the verdict convicting the defendant of assault in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Contrary to the defendant’s contention, the County Court did not err in permitting the cross-examination of the defendant’s alibi witnesses regarding their failure to come forward at the defendant’s felony hearing (cf. People v. Dawson, 50 NY2d 311). The court’s brief comment regarding this cross-examination did not constitute reversible error (see generally People v. Ojeda, 118 AD3d 919, 919). Moreover, the court properly instructed the jury regarding alibi witnesses (see People v. Dawson, 50 NY2d at 322-323).“[T]he determination as to whether to reopen a case for further testimony rests within the sound discretion of the trial court” (People v. McCloud, 305 AD2d 428, 428). ”Absent a compelling reason, the order of trial prescribed by CPL 260.30 should be followed” (People v. Fama, 212 AD2d 542, 543). Here, contrary to the defendant’s contention, the County Court providently exercised its discretion in denying the defendant’s application to reopen the case (see People v. Williams, 139 AD3d 885, 886-887; People v. McCloud, 305 AD2d at 429; People v. Aldridge, 247 AD2d 545, 546).The defendant’s remaining contentions are unpreserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction.BALKIN, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.MATTER of Hereford Insurance Company, ap, v. Jamal McKoy respondents- respondents U-Haul International, Inc., proposed additional res-res, et al., proposed additional res — (Index No. 504025/14)In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Hereford Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Debra Silber, J.), dated April 14, 2016, as, in effect, denied those branches of the petition which were to temporarily stay arbitration of the uninsured motorist claim pending a framed-issue hearing, for joinder of the proposed additional respondents U-Haul International, Inc., U-Haul of Flatbush, and Repwest Insurance Company, and for a permanent stay of arbitration, and dismissed the proceeding.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the petition is reinstated, those branches of the petition which were to temporarily stay arbitration of the uninsured motorist claim pending a framed-issue hearing and for joinder of the proposed additional respondents U-Haul International, Inc., U-Haul of Flatbush, and Repwest Insurance Company are granted, and the matter is remitted to the Supreme Court, Kings County, for a framed-issue hearing to determine whether a disclaimer of coverage issued to Darryl C. Philbert was timely and valid, and a new determination thereafter of that branch of the petition which was for a permanent stay of arbitration.On September 14, 2011, the respondents Jamal McKoy, Monique R. Dickson, and Anise C. Stevens were passengers in a vehicle which was owned by Anocles Lexius and insured by the petitioner Hereford Insurance Company (hereinafter HIC). That vehicle was struck in the rear by a rental van (hereinafter the subject van) which had been rented by the proposed additional respondent Darryl C. Philbert from the proposed additional respondent U-Haul of Arizona, incorrectly sued herein as U-Haul of Flatbush (hereinafter UHAZ). McKoy, Dickson, and Stevens commenced an action against Lexius, Philbert, and UHAZ to recover damages for personal injuries they allegedly sustained as a result of the accident (hereinafter the underlying personal injury action). After an answer was served on behalf of Philbert, the proposed additional respondent Repwest Insurance Company (hereinafter Repwest), which handled claims on behalf of UHAZ, which was self-insured, sent a letter to Philbert disclaiming coverage due to his purported failure to cooperate in its investigation of the accident.Subsequently, in April 2014, McKoy, Dickson, and Stevens served a notice for an uninsured motorist arbitration upon HIC. In May 2014, HIC commenced this proceeding, inter alia, to permanently stay the arbitration or, in the alternative, to temporarily stay the arbitration for a framed-issue hearing to determine whether the subject van was insured at the time of the accident. The petition also sought to join Philbert, Repwest, UHAZ, and U-Haul International, Inc. (hereinafter UHI), as additional respondents. Repwest, UHI, and UHAZ opposed the petition, on the ground, among others, that UHAZ had disclaimed coverage for the subject accident due to Philbert’s non-cooperation.While this proceeding was pending, Repwest, UHAZ, and another corporate entity commenced a separate action against Philbert, as a defendant, and Lexius, McKoy, Dickson, and Stevens, as nominal defendants, seeking declarations that they were not required to defend and indemnify Philbert with respect to the underlying personal injury action, and that they had no duty to afford coverage for any claims arising out of the subject accident. Repwest and UHAZ moved for and were granted a default judgment in the declaratory judgment action. Repwest, UHI, and UHAZ then submitted further papers in this proceeding opposing the petition based on the order granting a default judgment in the declaratory judgment action.In the order on appeal, the Supreme Court, among other things, in effect, denied those branches of the petition which were for a temporary stay of the uninsured motorist arbitration pending a framed-issue hearing, for the joinder of Repwest, UHI, and UHAZ as additional respondents, and for a permanent stay of the uninsured motorist arbitration, and dismissed the proceeding. HIC appeals.Initially, HIC contends that since the determination in the declaratory judgment action was decided on default, the Supreme Court improperly applied the doctrine of collateral estoppel in denying that branch of the petition which sought to join Repwest, UHI, and UHAZ as additional respondents. We agree. ”The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate” (Matter of Dunn, 24 NY3d 699, 704, citing Kaufman v. Eli Lilly & Co., 65 NY2d 449, 456). ”If the issue has not been litigated, there is no identity of issues between the present action and the prior determination” (Kaufman v. Eli Lilly & Co., 65 NY2d at 456). In this case, since the determination in the declaratory judgment action regarding insurance coverage for the subject van was decided on default and, thus, was not actually litigated (see Kaufman v. Eli Lilly & Co., 65 NY2d at 456-457; Douglas Elliman, LLC v. Silver, 143 AD3d 752, 755), Repwest, UHI, and UHAZ failed to demonstrate that there was an identity of issues between the present proceeding and the determination in the declaratory judgment action.“‘The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay’” (Matter of Hertz Corp. v. Holmes, 106 AD3d 1001, 1002-1003, quoting Matter of AutoOne Ins. Co. v. Umanzor, 74 AD3d 1335, 1336; see Matter of Merchants Preferred Ins. Co. v. Waldo, 125 AD3d 864, 865; Matter of Farmers Ins./Truck Ins. Exch. v. Terzulli, 112 AD3d 628, 628). ”Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v. Waldo, 125 AD3d at 865; see Matter of Hertz Corp. v. Holmes, 106 AD3d at 1003; Matter of Metropolitan Prop. & Cas. Ins. Co. v. Singh, 98 AD3d 580, 581).Here, the documents submitted by HIC in support of the petition demonstrated the existence of sufficient evidentiary facts to establish a preliminary stay. HIC made a prima facie showing that the subject van had insurance coverage at the time of the accident through UHAZ, which was self insured, by submitting, among other things, a police accident report showing that the subject van was owned by UHAZ. HIC also submitted a copy of its own policy, including the uninsured motorist endorsement (see Matter of Mercury Ins. Group v. Ocana, 46 AD3d 561, 562).In opposition to the petition, Repwest, UHI, and UHAZ submitted evidence that coverage for the subject van had been disclaimed based upon Philbert’s failure to cooperate in the investigation of the subject accident. In order to establish a proper disclaimer based on an insured’s alleged noncooperation, an insurer must demonstrate that “it acted diligently in seeking to bring about its insured’s cooperation, that its efforts were reasonably calculated to obtain its insured’s cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of ‘wilful and avowed obstruction’” (Matter of State-Wide Ins. Co. v. Luna, 68 AD3d 882, 883, quoting Thrasher v. United States Liab. Ins. Co., 19 NY2d 159, 168; see Matter of AutoOne Ins. Co. v. Hutchinson, 71 AD3d 1011, 1013). The burden of proving lack of cooperation is a “heavy one,” and is on the insurer (Thrasher v. United States Liab. Ins. Co., 19 NY2d at 168). Here, the disclaimer letter and an affirmation from the attorney assigned by Repwest to represent Philbert in the underlying personal injury action demonstrated that Philbert had not made contact with either Repwest or the attorney as of the date of the disclaimer letter. While these submissions by Repwest, UHI, and UHAZ did not establish that the disclaimer was valid and timely as a matter of law, they were sufficient to raise a triable issue of fact (see Matter of Victoria Select Ins. Co. v. Munar, 80 AD3d 707, 707-708; Matter of Mercury Ins. Group v. Ocana, 46 AD3d at 563; Matter of New York Cent. Mut. Ins. Co. v. Davalos, 39 AD3d 654, 656; Matter of New York Cent. Mut. Fire Ins. Co. v. Hall, 7 AD3d 629, 630; Matter of Allstate Ins. Co. v. Anderson, 303 AD2d 496, 497-498). Consequently, the Supreme Court should have conducted a framed-issue hearing on the validity and timeliness of the disclaimer before rendering a determination on the petition, and should have joined Repwest, UHI, and UHAZ as additional respondents (see Matter of New York Cent. Mut. Ins. Co. v. Davalos, 39 AD3d at 656; Matter of New York Cent. Mut. Fire Ins. Co. v. Hall, 7 AD3d at 630; Matter of Allstate Ins. Co. v. Anderson, 303 AD2d at 497-498).The remaining contentions of Repwest, UHI, and UHAZ are improperly raised for the first time on appeal, and thus are not properly before this Court (see Rayham v. Multiplan, Inc., 153 AD3d 865, 867; Yong U Lee v. Huan Wen Zhang, 133 AD3d 651, 652).Accordingly, we remit this matter to the Supreme Court, Kings County, for a framed-issue hearing to determine whether insurance coverage for the subject van was validly and timely disclaimed, and for a new determination thereafter of that branch of the petition which was for a permanent stay of arbitration.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.MATTER of Stanley Mankowski, ap, v. Nassau County res — (Index No. 3709/15)Koehler & Isaacs LLP, New York, NY (Liam L. Castro of counsel), for appellant.Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, NY (William C. DeWitt of counsel), for respondents.In a proceeding pursuant to CPLR article 78 to review two determinations of a hearing officer, dated January 20, 2015, and March 26, 2015, respectively, made after a hearing, finding that the petitioner was able to return to work in a light duty capacity and determining the restrictions under which the petitioner was permitted to work, the petitioner appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered August 6, 2015, which found that the hearing officer’s determinations were supported by substantial evidence and denied the petition.ORDERED that the appeal is dismissed and the order is vacated; and it is further,ADJUDGED that the determinations dated January 20, 2015, and March 26, 2015, respectively, are confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,ORDERED that one bill of costs is awarded to the respondents.The petitioner, a correction officer, was injured in March 2013 when an inmate punched him in the neck while the petitioner was conducting a pat down of the inmate. Thereafter, the petitioner was absent from work due to the line-of-duty injury and was approved for salary benefits pursuant to General Municipal Law §207-c. The petitioner was treated by an orthopedic surgeon, and underwent spinal surgery in November 2013. On March 5, 2014, April 29, 2014, and July 11, 2014, police surgeons, who were designated by the respondents to conduct examinations assessing the petitioner’s capability of returning to work, found the petitioner to be able to work in a restricted/light-duty capacity, such as in an administrative role with no supervision of inmates.The petitioner contested the police surgeons’ reports, and a hearing was held before a hearing officer. In a determination dated January 16, 2015, the hearing officer found the petitioner to be capable of returning to work on restricted duty, directed that the petitioner submit to an examination by a police surgeon to reassess the appropriate restrictions under which he could return to work, and stated that a determination containing the hearing officer’s full factual findings would be issued separately. On January 20, 2015, the hearing officer issued a second determination containing the relevant factual findings. The next day, the petitioner submitted to an examination by a police surgeon, who issued a report dated January 21, 2015, specifying the types of duties to which the petitioner could be assigned.The petitioner’s union filed a contract grievance and commenced a proceeding in the Supreme Court, Nassau County, seeking to enjoin the enforcement of the report of the police surgeon dated January 21, 2015, on the ground that, under the applicable collective bargaining agreement, it was the responsibility of the hearing officer, not a police surgeon, to determine the restrictions under which the petitioner was to return to work. In an order dated March 18, 2015, the Supreme Court vacated the determination dated January 16, 2015, pursuant to CPLR 7511 on the ground that the hearing officer exceeded or imperfectly executed her power such that a final and definite award was not made, and remitted the matter to the hearing officer to make the required determination. In a determination on remittal dated March 26, 2015, the hearing officer adopted the factual findings of the determination dated January 20, 2015, and specified the restrictions under which the petitioner was to work.The petitioner then commenced the instant proceeding pursuant to CPLR article 78 to review the hearing officer’s determinations dated January 20, 2015, and March 26, 2015, respectively, on the ground, among others, that they were not supported by substantial evidence. In the order appealed from, the Supreme Court, inter alia, determined that the hearing officer’s determinations could be reviewed pursuant to both CPLR articles 75 and 78. The court found that the hearing officer’s determinations were supported by substantial evidence, and denied the petition.Because the petition raises a question of whether the hearing officer’s determinations were supported by substantial evidence, the Supreme Court should have transferred the proceeding to this Court (see CPLR 7804[g]). Nevertheless, because the complete record is now before this Court, we will treat the matter as one which has been transferred here and will review the hearing officer’s determinations de novo (see Matter of Delgrande v. Greenville Fire Dist., 132 AD3d 987, 988; Matter of Lowther v. County of Rockland, 122 AD3d 845, 846; Matter of Sullivan v. County of Rockland, 121 AD3d 700, 701; Matter of Konstas v. Environmental Control Bd. of City of N.Y., 104 AD3d 689, 689).Pursuant to General Municipal Law §207-c, certain municipalities are required “to pay continued salary or wages to officers who sustain a disability in the course of their employment” (Matter of Park v. Kapica, 8 NY3d 302, 310; see Matter of Farina v. County of Orange, 133 AD3d 747, 749). The municipality is entitled to conduct a medical examination of the officer and, if the physician determines that the officer is able to perform specified types of light duty, the municipality may discontinue payment of the officer’s full salary or wages if the officer refuses to return to work when a light-duty post is available and offered to the officer (see General Municipal Law §207-c[1], [3]; Matter of Park v. Kapica, 8 NY3d at 310; Matter of Farina v. County of Orange, 133 AD3d at 749). If the officer challenges the medical finding and submits evidence from his or her treating physician to support a claim of “continued total disability,” the termination of benefits payable under General Municipal Law §207-c and an order to report for duty may not be enforced until an administrative hearing has been held (Matter of Park v. Kapica, 8 NY3d at 310 [internal quotation marks omitted]; see Matter of Garvey v. Sullivan, 129 AD3d 1078, 1081-1082).Where, as here, the correction officer seeks such an administrative hearing, the hearing officer’s determination following the hearing is subject to review pursuant to CPLR article 78 (see Matter of Nassau County Sheriff’s Corr. Officers Benevolent Assn., Inc. v. Nassau County, 137 AD3d 1145; Matter of Farina v. County of Orange, 133 AD3d 747; see also Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v. City of Cohoes, 94 NY2d 686, 692; Matter of Fennelly v. Eastchester Fire Dist., 153 AD3d 1342). Judicial review of a determination of an administrative agency made after a hearing required by law is limited to consideration of whether the determination is supported by substantial evidence (see CPLR 7803[4]; Matter of Fennelly v. Eastchester Fire Dist., 153 AD3d 1342; Matter of Farina v. County of Orange, 133 AD3d at 748; Matter of Delgrande v. Greenville Fire Dist., 132 AD3d at 988; Matter of Garvey v. Sullivan, 129 AD3d at 1082; Matter of Solano v. City of Mount Vernon, 108 AD3d 676, 676-677; Matter of Miserendino v. City of Mount Vernon, 96 AD3d 946, 947). Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Fennelly v. Eastchester Fire Dist., 153 AD3d 1342; Matter of Farina v. County of Orange, 133 AD3d at 748; Matter of Garvey v. Sullivan, 129 AD3d at 1082; Matter of Miserendino v. City of Mount Vernon, 96 AD3d at 947).Here, the determinations dated January 20, 2015, and March 26, 2015, respectively, were supported by substantial evidence (see Matter of Farina v. County of Orange, 133 AD3d at 749; Matter of Solano v. City of Mount Vernon, 108 AD3d at 677). While the petitioner’s treating orthopedic surgeon testified at the hearing that the petitioner should avoid certain physical activities, including lifting, pushing, pulling, and engaging in any kind of physical altercation, the orthopedic surgeon also testified that the petitioner was capable of performing functions such as answering telephones and opening mail, as long as he was able to take frequent breaks. The police surgeons each noted in their reports the petitioner’s physical limitations and the pain medication he was taking, and each concluded that he was capable of returning to work in a restricted/light-duty capacity. The hearing officer had the duty of weighing that evidence and making a determination (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d at 182; Matter of Delgrande v. Greenville Fire Dist., 132 AD3d at 988; Matter of Solano v. City of Mount Vernon, 108 AD3d at 677; Matter of Miserendino v. City of Mount Vernon, 96 AD3d at 948), and the finding that the petitioner was able to return to work on restricted duty was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d at 182).The respondents’ remaining contention is without merit.Accordingly, the determinations must be confirmed, the petition denied, and the proceeding dismissed.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.MATTER of Richard E. Portillo, res, v. Trisha J. Maraj, respondent-ap; Donovan R. P. (Anonymous), nonparty-ap — (Proceeding No. 1)MATTER of Trisha J. Maraj, petitioner- ap, v. Richard E. Portillo, res; Donovan R. P. (Anonymous), nonparty-ap — (Proceeding No. 2) (Docket Nos. V-940-14, V-2637-14)Stefani Goldin, Syosset, NY, attorney for nonparty-appellant child.Darren M. Shapiro, Jericho, NY, for respondent.In related proceedings pursuant to Family Court Act article 6, the child appeals, and the mother separately appeals, from an order of the Family Court, Nassau County (Robert Lopresti, Ct. Atty. Ref.), dated September 30, 2016. The order, after a hearing, granted the father’s petition for sole legal and physical custody of the parties’ child and denied the mother’s petition for sole legal and physical custody of the child.ORDERED that the order is affirmed, without costs or disbursements.The parties, who were never married, have one child, born in January 2006. From the time of the child’s birth until August 2013, the parties resided together with the child in New York. In August 2013, the mother relocated to Georgia for work, and the child remained in New York with the father. In January 2014, the father filed a petition for sole legal and physical custody of the child, alleging, among other things, that it was in the best interests of the child to have custody awarded to him because the child had always resided in his care and he had consistently provided the child with a stable and secure home environment. In March 2014, the mother petitioned for sole legal and physical custody of the child, alleging, among other things, that it was in the child’s best interests to have custody awarded to her because she could provide the child with a better life in Georgia. Following a hearing, the Family Court denied the mother’s petition and granted the father’s petition, awarding him sole legal and physical custody of the child. The mother and the child separately appeal.The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Nunez v. Lasso, 144 AD3d 689, 689). In determining an initial petition for child custody, the totality of the circumstances includes, but is not limited to, “(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” (Matter of McPherson v. McPherson, 139 AD3d 953, 954 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 NY2d 167).Here, contrary to the contentions of the mother and the child, the Family Court properly applied the analysis applicable to an initial custody determination, in which the mother’s relocation to Georgia was one factor for the court to consider in determining what was in the child’s best interests (see Matter of Wood v. Rago, 135 AD3d 949, 950; Matter of Wright v. Stewart, 131 AD3d 1256, 1257; Matter of Sims v. Boykin, 130 AD3d 835, 836; cf. Matter of Saperston v. Holdaway, 93 AD3d 1271, 1272). Further, the court’s determination that the child’s best interests would be served by awarding the father sole legal and physical custody has a sound and substantial basis in the record, and will not be disturbed (see Matter of Monasterka v. Burns, 121 AD3d 903).ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Martin Kocaj, ap — (Ind. No. 83/12)Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered June 3, 2013, convicting him of arson in the second degree, assault in the second degree, assault in the third degree, reckless endangerment in the second degree (five counts), and endangering the welfare of a child (six counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that the County Court erred in rejecting his peremptory challenge to a female juror as pretextual is without merit. Upon consideration of the entire record of the jury selection proceedings, and applying the relevant factors set forth in People v. Richie (217 AD2d 84, 89), we conclude that the court properly denied the defendant’s peremptory challenge to this juror (see e.g. People v. Carrington, 105 AD3d 970; People v. Patterson, 12 AD3d 694).The defendant’s right to be present during jury selection was not violated by the County Court’s instruction that he not “turn around and try to make eye contact with the jurors” while they exited the courtroom. The defendant was present during voir dire, he had an opportunity to consult with counsel, and the challenges to the jury were given effect in his presence (see People v. Velasco, 77 NY2d 469; People v. Montgomery, 213 AD2d 563, affd 88 NY2d 926).The defendant’s contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 AD3d 1108, 1109; see People v. Evans, 16 NY3d 571, 575). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Thompson, 150 AD3d 1156, 1157). Since the defendant’s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Leverich, 139 AD3d 756, 757).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Scheinkman, P.J.; Balkin, Austin and Hinds-Radix, JJ.MATTER of Mirza S. A. (Anonymous). Administration for Childrens Services, res; Mirza A. A. (Anonymous), ap — (Docket No. N-20010-15)Nicole Barnum, New York, NY, for appellant.Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Janet L. Zaleon of counsel), for respondent.Seymour W. James, Jr., New York, NY (Dawne Mitchell, Patricia Colella, and Karen Levit of counsel), attorney for the child.In a proceeding pursuant to Family Court Act article 10, the father appeals from (1) an order of fact-finding of the Family Court, Queens County (Marybeth S. Richroath, J.), dated July 25, 2016, and (2) an order of disposition of the same court (Connie Gonzalez, J.) dated March 6, 2017. The order of fact-finding, after a fact-finding hearing, found that the father neglected the subject child. The order of disposition, after a dispositional hearing, released the child to the custody of the nonrespondent mother under the supervision of the Administration for Children’s Services for a period of 12 months.ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,ORDERED that the appeal from so much of the order of disposition as released the child to the custody of the nonrespondent mother under the supervision of the Administration for Children’s Services for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.The Administration for Children’s Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by engaging in acts of domestic violence in the child’s presence. After a fact-finding hearing, the Family Court found that the father neglected the child. Subsequently, the court issued an order of disposition, releasing the child to the custody of the nonrespondent mother under the supervision of ACS for a period of 12 months. The father appeals.The appeal from so much of the order of disposition as released the child to the mother’s custody under the supervision of ACS for a period of 12 months must be dismissed as academic, as that portion of the order has expired (see Matter of Justin P. [Damien P.], 148 AD3d 903, 903; Matter of Ethan B. [Frederick B.], 130 AD3d 816, 816). However, the appeal from the portion of the order of disposition which brings up for review the finding that the father neglected the child is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the father’s status in future proceedings (see Matter of Justin P. [Damien P.], 148 AD3d at 904; Matter of Ethan B. [Frederick B.], 130 AD3d at 817).To establish neglect, the petitioner must demonstrate by a preponderance of the evidence, “first, that [the] child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent… to exercise a minimum degree of care in providing the child with the proper supervision or guardianship” (Nicholson v. Scoppetta, 3 NY3d 357, 368; see Family Ct Act §§1012[f][i]; 1046[b][i]). Here, the Family Court’s finding that the father neglected the child is supported by a preponderance of the evidence (see Matter of Jaden J. [Ernest C.], 106 AD3d 822; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345; Matter of Elijah J. [Phillip J.], 77 AD3d 835).At the hearing, the Family Court concluded that the child would suffer emotional trauma if compelled to testify in front of the father (see Matter of Michael U. [Marcus U.], 110 AD3d 821; Matter of Elisha M.W. [Ronald W.], 96 AD3d 863; Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961). The court thus permitted the child to testify outside the father’s presence. Nevertheless, to protect the father’s rights, the court arranged for the father to view the testimony via video linkup, granted a recess after the completion of ACS’s direct case to permit the father and his attorney time to consult before cross-examining the child, and permitted a further recess after the completion of that cross-examination for further consultation. The court’s conclusion that the child would suffer trauma if compelled to testify in the father’s presence was reasonable. Moreover, in its balancing of the respective rights and interests of the parties, the court did not improvidently exercise its discretion. Finally, because the father’s attorney was present during the child’s testimony and cross-examined him on the father’s behalf, neither the father’s due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child’s testimony (see Matter of Q.-L. H., 27 AD3d 738, 739; see also Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961; Matter of Sylvia J., 23 AD3d 560).SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS-RADIX, JJ., concur.By Dillon, J.P.; Chambers, Maltese and Barros, JJ.MATTER of Galit Naftali, res, v. David Naftali, ap — (Docket No. O-11619-12)In a family offense proceeding pursuant to Family Court Act article 8, the father appeals from an order of protection of the Family Court, Queens County (Anne-Marie Jolly, J.), dated December 22, 2016. The order of protection, after a fact-finding hearing, and upon a “decision and order after fact-finding” dated December 22, 2016, granting the mother’s application to extend a prior order of protection issued against the father, directed the father, inter alia, to stay away from the mother and the parties’ child until and including December 21, 2018.ORDERED that the order of protection is affirmed, without costs or disbursements.In this family offense proceeding, the mother made an application to extend an order of protection against the father and in favor of the mother and the parties’ child. After a fact-finding hearing, the Family Court granted the application and directed the father, inter alia, to stay away from the mother and the parties’ child until and including December 21, 2018. The father appeals.Contrary to the father’s contention, the Family Court, which had the benefit of seeing and hearing the witnesses at the fact-finding hearing, properly found that, under the circumstancesof this case, there was “good cause” to extend the order of protection (Family Ct Act §842; see Matter of Molloy v. Molloy, 137 AD3d 47).DILLON, J.P., CHAMBERS, MALTESE and BARROS, JJ., concur.By Dillon, J.P.; Austin, Sgroi and Barros, JJ.Corbel Construction Company, res, v. Arch Specialty Insurance Company, ap — (Index No. 5901/15)In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Alvarez v. 210 Flatbush, LLC, commenced in the Supreme Court, Kings County, under Index No. 506406/14, the defendant appeals from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated February 8, 2016, which granted the plaintiff’s motion for summary judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in the underlying action, and denied the defendant’s cross motion for summary judgment declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action.ORDERED that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in the underlying action is denied, the defendant’s cross motion for summary judgment declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the defendant is not obligated to defend or indemnify the plaintiff in the underlying action entitled Alvarez v. 210 Flatbush, LLC, commenced in the Supreme Court, Kings County, under Index No. 506406/14.On April 4, 2014, Remigio Alvarez allegedly was injured while working for S.K. Piping & Heating Corp., doing business as S.K. NY Plumbing & Heating (hereinafter S.K. Piping), at a construction site located at 210 Flatbush Avenue in Brooklyn. S.K. Piping was a subcontractor of Corbel Construction Company (hereinafter Corbel). Alvarez commenced an action against Corbel and others to recover damages for personal injuries (hereinafter the underlying action).Subsequently, Corbel commenced this action, inter alia, for a judgment declaring that, pursuant to a general liability insurance policy issued to it by Arch Specialty Insurance Company (hereinafter Arch), Arch is obligated to defend and indemnify it in the underlying action. Corbel thereafter moved for summary judgment declaring that Arch is obligated to defend and indemnify Corbel, and Arch cross-moved for summary judgment declaring that it is not obligated to defend or indemnify Corbel. The Supreme Court granted Corbel’s motion and denied Arch’s cross motion. Arch appeals, arguing that its cross motion should have been granted, since it demonstrated the applicability of an exclusion in Corbel’s policy, and Corbel failed to raise a triable issue of fact regarding the applicability of an exception to the exclusion.“In determining a dispute over insurance coverage, [courts] first look to the language of the policy” (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 NY2d 208, 221). Although the insurer has the burden of proving the applicability of an exclusion (see Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304, 311), it is the insured’s burden to establish the existence of coverage (see Lavine v. Indemnity Ins. Co., 260 NY 399, 410). Thus, where “the existence of coverage depends entirely on the applicability of [an] exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied” (Borg-Warner Corp. v. Insurance Co. of N. Am., 174 AD2d 24, 31).In support of its cross motion, Arch established its prima facie entitlement to judgment as a matter of law by demonstrating the applicability of an exclusion in Corbel’s policy (see Platek v. Town of Hamburg, 24 NY3d 688, 694; Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325). In opposition to Arch’s prima facie showing, Corbel failed to raise a triable issue of fact regarding the applicability of an exception to the exclusion (see Conlon v. Allstate Veh. & Prop. Ins. Co., 152 AD3d 488, 491; Copacabana Realty, LLC v. Fireman’s Fund Ins. Co., 130 AD3d 771, 772; Broome County v. Travelers Indem. Co., 125 AD3d 1241, 1244-1245; State Ins. Fund v. Hermitage Ins. Co., 256 AD2d 329, 330). Accordingly, the Supreme Court should have granted Arch’s cross motion for summary judgment declaring that it is not obligated to defend or indemnify Corbel in the underlying action, and should have denied Corbel’s motion for summary judgment declaring that Arch is so obligated.Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Arch is not obligated to defend or indemnify Corbel in the underlying action (see Lanza v. Wagner, 11 NY2d 317; Hanson v. Turner Constr. Co., 70 AD3d 641, 643).DILLON, J.P., AUSTIN, SGROI and BARROS, JJ., concur.By Rivera, J.P.; Roman, Duffy and Connolly, JJ.MATTER of Mortimer Nurse, as administrator of the estate of Rupert A. N. (Anonymous). Mortimer Nurse petitioners-respondents; Winston Valley Dacres ap; Eric Nelson, court evaluator, nonparty-res — (Index No. 100261/13)In a proceeding pursuant to Mental Hygiene Law article 81, inter alia, to appoint the petitioners as coguardians of the person and property of Rupert A. N., Winston Valley Dacres and Sonia Dacres appeal from (1) an order of the Supreme Court, Kings County (Michael L. Pesce, J.), dated June 23, 2015, which, after a hearing, granted the petitioners’ motion to set aside a deed dated July 19, 2013, as invalid on the grounds of incompetence and undue influence, and (2) a judgment of the same court, also dated June 23, 2015, which, inter alia, declared the July 19, 2013, deed null and void.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).In a deed dated July 19, 2013 (hereinafter the deed), Rupert A. N. conveyed a 50 percent ownership interest in residential property to his stepson, the appellant Winston Valley Dacres. Thereafter, on December 20, 2013, two of Rupert A. N.’s biological children, the petitioners, Mortimer Nurse and Hyacinth Nurse, commenced a proceeding pursuant to Mental Hygiene Law article 81 seeking, inter alia, to be appointed coguardians of the person and property of Rupert A. N. After a hearing at which it was established that Rupert A. N. suffered from dementia, the Supreme Court deemed Rupert A. N. an incapacitated person and appointed the petitioners as coguardians. Thereafter, the petitioners moved to set aside the deed on the grounds of incompetence and undue influence. Following a hearing held on January 9, 2015, the court, by order dated June 23, 2015, determined that the petitioners had proven by clear and convincing evidence that Rupert A. N. was incompetent at the time the deed was executed, and that the deed was the result of undue influence. Accordingly, the court determined that the deed was null and void. A judgment of the same date, inter alia, declared the deed null and void.Contrary to the appellants’ contentions, the Supreme Court did not err in rejecting an affirmation of engagement from their counsel (see 22 NYCRR 125.1; see generally Wahid v. Pour, 89 AD3d 1015, 1015), nor did the court improvidently exercise its discretion in denying a request for an adjournment of the January 9, 2015, hearing (see Matter of Steven B., 6 NY3d 888, 889; Matter of Ca’leb R.D. [Mary D.S.], 121 AD3d 890, 892; Diamond v. Diamante, 57 AD3d 826, 827; Matter of Sicurella v. Embro, 31 AD3d 651, 651). Further, the denial of an adjournment did not deprive the appellants of due process. The record demonstrates that the appellants had due notice and opportunity to be heard (see generally Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 314).“In reviewing a determination made after a nonjury trial, the power of the Appellate Division 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 in a close case that the trial judge had the advantage of seeing the witnesses” (Campbell v. Campbell, 107 AD3d 929, 930 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499).“As a general rule, a party’s competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability” (Buckley v. Ritchie Knop, Inc., 40 AD3d 794, 795; see Crawn v. Sayah, 31 AD3d 367; Feiden v. Feiden, 151 AD2d 889, 890). Persons suffering from diseases, such as dementia, are not presumed incompetent and may still execute a valid deed (see Matter of Nealon, 57 AD3d 1325, 1327; Matter of Lee, 294 AD2d 366, 367; Feiden v. Feiden, 151 AD2d at 890). Instead, it must be demonstrated that the individual was incompetent at the specific time of the challenged transaction, i.e., that he or she was “‘so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction’” (Feiden v. Feiden, 151 AD2d at 890, quoting Aldrich v. Bailey, 132 NY 85, 89; see Matter of Nealon, 57 AD3d at 1327; Buckley v. Ritchie Knop, Inc., 40 AD3d at 795; Crawn v. Sayah, 31 AD3d at 369).Here, the petitioners presented, inter alia, expert witness testimony which established that at the time of the execution of the deed Rupert A. N. suffered from dementia and major vascular neurocognitive disorder, which rendered him wholly incompetent and incapable of understanding the consequences of his actions. The expert witness testified, to a reasonable degree of medical certainty, that based on Rupert A. N.’s diagnosis, on July 19, 2013, Rupert A. N. could “certainly not appreciate” the consequences of his actions. In response, the appellants failed to present evidence sufficient to refute the conclusions of the petitioners’ medical expert. The evidence supports the Supreme Court’s conclusion that when the deed was executed on July 19, 2013, Rupert A. N. suffered from dementia and vascular disease which rendered him wholly and absolutely incompetent to comprehend and understand the nature of the transaction. Accordingly, the court properly determined that the deed was invalid on the ground of incompetence.For an instrument to be invalidated on the basis of undue influence, there must be evidence that the influence exerted “amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained [a person] to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist” (Matter of Walther, 6 NY2d 49, 53 [internal quotation marks omitted]). The burden of proving undue influence generally rests with the party asserting its existence (see Hearst v. Hearst, 50 AD3d 959, 962; Matter of Connelly, 193 AD2d 602, 602). Where, however, the existence of a relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence (see Matter of Albert, 137 AD3d 1266, 1268; Matter of Boatwright, 114 AD3d 856, 858; Matter of Connelly, 193 AD2d at 603). ”In order to demonstrate the existence of a relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence” (Matter of Albert, 137 AD3d at 1268; see Matter of Bonczyk v. Williams, 119 AD3d 1124, 1126; Matter of Graeve, 113 AD3d 983, 984; Matter of Nealon, 104 AD3d 1088, 1089, affd 22 NY3d 1045).Here, the record demonstrates that the appellants provided 24-hour care to Rupert A. N., who, as a result of his physical and mental ailments, was rendered wholly reliant upon his caregivers. Under these circumstances, the existence of a relationship was established (see Allen v. La Vaud, 213 NY 322; Matter of Boatwright, 114 AD3d at 859; Peters v. Nicotera, 248 AD2d 969, 969; Matter of Connelly, 193 AD2d at 603). The burden therefore shifted to the appellants, who, in turn, failed to demonstrate that the transaction was fair and free from undue influence. The Supreme Court found the appellants’ evidence to be contradictory and incredible. Such credibility determinations are accorded great weight (see Matter of Boatwright, 114 AD3d at 859), and there is no basis in this record to disturb it. Accordingly, the court properly determined that the deed also was invalid on the ground of undue influence.RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.By Chambers, J.P.; Roman, Barros and Christopher, JJ.PEOPLE, etc., res, v. Teodoro Garcia-Mendoza, ap — (Ind. No. 2902-14)Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Timothy D. Sini, District Attorney, Riverhead, NY (Alfred J. Croce of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Barbara Kahn, J.), imposed January 22, 2016, upon his conviction of criminal sexual act in the first degree and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bryant, 28 NY3d 1094; People v. Sanders, 25 NY3d 337). The defendant’s valid appeal waiver precludes review of his excessive sentence claim (see People v. Edwin L., 142 AD3d 718; People v. Conway, 140 AD3d 1185).CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Carol A. Hopkins, ap, v. St. Agnes Roman Catholic Church at Rockville Centre, in County of Nassau, State of New York, res — (Index No. 13659/13)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered October 11, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell while descending the exterior staircase of a church owned by the defendant. The plaintiff alleged that the accident resulted from a difference in riser height between steps on the staircase. The defendant moved for summary judgment dismissing the complaint on the ground that the alleged dangerous condition was trivial and, therefore, not actionable as a matter of law. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.“Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury” (Pitt v. New York City Tr. Auth., 146 AD3d 826, 827, citing Trincere v. County of Suffolk, 90 NY2d 976, 977). ”A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 79). ”In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, ‘including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury’” (Pitt v. New York City Tr. Auth., 146 AD3d at 828, quoting Trincere v. County of Suffolk, 90 NY2d at 978 [internal quotation marks omitted]).Here, the defendant met its prima facie burden for summary judgment by establishing that the alleged defect was trivial as a matter of law (see Sulca v. Barry Hers Realty, Inc., 29 AD3d 779, 779; cf. Schwartz v. Reisman, 135 AD3d 739, 739-740; Swerdlow v. WSK Props. Corp., 5 AD3d 587, 588). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Christopher, JJ.Vladimir Pankratov, ap, v. 2935 OP, LLC, res — (Index No. 501129/14)In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated October 7, 2016. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On January 25, 2014, the plaintiff allegedly slipped and fell on an exterior walkway which was part of premises located at 2935 Ocean Parkway in Brooklyn which the defendant allegedly owned. The plaintiff commenced this action against the defendant to recover damages for personal injuries. After joinder of issue, the defendant moved for summary judgment dismissing the complaint on the grounds that the plaintiff was unable to identify the cause of his fall and that the storm in progress rule applied. The Supreme Court granted the defendant’s motion on the ground that the plaintiff was unable to identify the cause of his fall. The plaintiff appeals and we affirm, albeit on a ground different from that relied upon by the Supreme Court.In support of its motion, the defendant submitted excerpts of the plaintiff’s deposition transcript which demonstrated, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation (see Razza v. LP Petroleum Corp., 153 AD3d 740, 741; Amster v. Kromer, 150 AD3d 804, 804; Hoovis v. Grand City 99 Cents Store, Inc., 146 AD3d 866, 866; Hahn v. Go Go Bus Tours, Inc., 144 AD3d 748, 749; Giordano v. Giordano, 140 AD3d 699, 700). In opposition, however, the plaintiff raised a triable issue of fact in this regard by submitting a complete copy of his deposition transcript. When the entirety of that transcript is reviewed, it is clear that the plaintiff identified transparent ice as the cause of his fall. Contrary to the defendant’s contention, such testimony correlates to the plaintiff’s averments regarding the cause of his fall which were set forth in his subsequent affidavit.However, contrary to the plaintiff’s contentions on appeal, the defendant also demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the storm in progress rule applied. A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition (see Talamas v. Metropolitan Transp. Auth., 120 AD3d 1333, 1334). ”This burden may be established by presenting evidence that there was a storm in progress when the injured plaintiff allegedly slipped and fell” (Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 839-840; see Meyers v. Big Six Towers, Inc., 85 AD3d 877; Sfakianos v. Big Six Towers, Inc., 46 AD3d 665). ”Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v. Skenderi, 51 AD3d 642, 642; see Solazzo v. New York City Tr. Auth., 6 NY3d 734; Dumela-Felix v. FGP W. St., LLC, 135 AD3d 809, 810; McCurdy v. KYMA Holdings, LLC, 109 AD3d 799, 799-800; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d at 840; Weller v. Paul, 91 AD3d 945, 947).Here, the evidence submitted by the defendant in support of its motion for summary judgment, in particular certified climatological data, the excerpts of the plaintiff’s deposition transcript, and an affidavit and report of the defendant’s expert meteorologist, demonstrated, prima facie, that a storm was in progress at the time of the accident (see Talamas v. Metropolitan Transp. Auth., 120 AD3d at 1334-1335; Meyers v. Big Six Towers, Inc., 85 AD3d at 877; Skouras v. New York City Tr. Auth., 48 AD3d 547; DeStefano v. City of New York, 41 AD3d 528; Dowden v. Long Is. R.R., 305 AD2d 631, 631; cf. Lalla v. State of New York, 128 AD3d 908). Contrary to the plaintiff’s contention, his opposition papers failed to raise a triable issue of fact as to whether the accident was caused by ice that existed prior to the storm, as opposed to precipitation from the storm in progress, and whether the defendant had actual or constructive notice of the alleged preexisting condition (see Smith v. Christ’s First Presbyt. Church of Hempstead, 93 AD3d at 840; Dowden v. Long Island R.R., 305 AD2d 631). In particular, the opinions contained in an affidavit of the plaintiff’s meteorological expert as to when and how the alleged ice patch was formed were based on speculation and conjecture (see Butler v. Roman Catholic Diocese of Rockville Ctr., 123 AD3d 868, 869).Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.RIVERA, J.P., COHEN, MILLER and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Sgroi, Duffy and Iannacci, JJ.PEOPLE, etc., res, v. Darrell Dula, ap — (Ind. No. 5683/16)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel; Ruby D. Andrade on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joseph E. Gubbay, J.), rendered October 19, 2016, convicting him of criminal sale of marihuana in the fourth 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).RIVERA, J.P., SGROI, DUFFY and IANNACCI, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.William Moody, res, v. Kelly Drye & Warren, LLP, ap — (Index No. 510900/14)In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated February 8, 2017, which denied its motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.The plaintiff allegedly sustained injuries during the course of his employment as a maintenance worker for a nonparty, which provided property management services for the subject building. The plaintiff’s duties included removing the tenants’ garbage, which was left in the freight elevator area of each floor of the building. At the time of the accident, the defendant, Kelley Drye & Warren, LLP, incorrectly sued herein as Kelly Drye & Warren, LLP, leased floors in the 48-story building, including the 28th floor where the accident occurred. According to the plaintiff’s deposition testimony, one of the garbage bags on the 28th floor was very heavy, and he called one of his coworkers for assistance. When the plaintiff lifted the bag with this coworker, the bag still felt heavy. After taking a couple of steps toward the freight elevator, he heard a pop in his back and fell to the floor. The plaintiff commenced this personal injury action against the defendant. The Supreme Court denied the defendant’s motion for summary judgment dismissing the complaint, and the defendant appeals.The defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the subject garbage bag was not over a weight accepted or contractually agreed upon by the defendant and the plaintiff’s employer at the time of the alleged incident, and that the plaintiff’s injury resulted from a risk inherent in his assigned work as a maintenance worker (see Sepulveda-Vega v. Suffolk Bancorp., 119 AD3d 850; Wagner v. Wody, 98 AD3d 965, 966; Marin v. San Martin Rest., 287 AD2d 441; Anderson v. Bush Indus., 280 AD2d 949, 950). In opposition, the plaintiff failed to raise a triable issue of fact.Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Roman, J.P.; Lasalle, Connolly and Christopher, JJ.India King, etc. ap, v. Mercedes M. Perez, res — (Index No. 9963/14)Sacco & Fillas, LLP, Astoria, NY (Adam Nichols of counsel), for appellants.Roe & Associates, Garden City, NY (Jacqueline R. Garren of counsel), for respondent.In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered February 21, 2017. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.On August 19, 2014, at approximately 5:40 p.m., the infant plaintiff, a pedestrian, was crossing Greenwich Street in Hempstead, 100 feet north of the intersection with Harold Avenue, when she came into contact with a vehicle owned and operated by the defendant. The infant plaintiff ran across the two northbound lanes of traffic on Greenwich Street into the southbound lane of traffic, where she collided with the defendant’s vehicle. The defendant testified at her deposition that the impact to her vehicle occurred between the driver’s side-view mirror and the headlight, above the tire. An eyewitness to the accident testified at her deposition that the infant plaintiff “wasn’t looking” and ran into the defendant’s vehicle. The infant plaintiff could not recall the accident.In October 2014, the infant plaintiff, by her mother and natural guardian, and her mother individually, commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant’s motion, and the plaintiffs appeal.“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner-Harrington, 124 AD3d 709, 709; see Leak v. Hybrid Cars, Ltd., 132 AD3d 958, 959). Here, the defendant established her prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the infant plaintiff ran across two lanes of traffic, and, without looking to her right for oncoming traffic, proceeded into the defendant’s lane of traffic where she made contact with the defendant’s vehicle. Additionally, the defendant’s submissions demonstrated that the infant plaintiff’s point of impact was to the side of the defendant’s vehicle, somewhere between the driver’s side-view mirror and the headlight. This evidence demonstrated, prima facie, that the defendant was not at fault in the happening of the accident (see Rogers v. City of New York, 52 AD3d 589, 590; Carrasco v. Monteforte, 266 AD2d 330, 331; Moskowitz v. Israel, 209 AD2d 676; cf. Brandt v. Zahner, 110 AD3d 752, 752-753).In opposition, the infant plaintiff, who did not recall the accident, failed to raise a triable issue of fact as to whether any negligence on the part of the defendant contributed to the accident (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.ROMAN, J.P., LASALLE, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Roman, Hinds-Radix and Christopher, JJ.MATTER of Jeremiah G. F. (Anonymous). Edwin Gould Services for Children and Families, res; Gideon F. (Anonymous), ap — (Docket No. B-33576-13)Rhea G. Friedman, New York, NY, for appellant.John R. Eyerman, New York, NY, for respondent.Ralph R. Carrieri, Mineola, NY, attorney for the child.In a proceeding pursuant to Social Services Law §384-b, the father appeals from an order of fact-finding and disposition of the Family Court, Kings County (Margaret Morgan, J.), dated July 27, 2016. The order of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, and upon the father’s failure to appear at the hearings, found that the father abandoned the subject child, terminated his parental rights, and transferred guardianship and custody of the child to the Commissioner of the Administration for Children’s Services of the City of New York and to the petitioner, Edwin Gould Services for Children and Families, for the purpose of adoption.ORDERED that the appeal from so much of the order of fact-finding and disposition as found that the father abandoned the child, terminated his parental rights, and freed the child for adoption is dismissed, without costs or disbursements, as no appeal lies from those portions of the order which were entered on the father’s default (see Matter of Vanessa M., 263 AD2d 542, 543); and it is further,ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.In December 2013, the petitioner commenced this proceeding to terminate the father’s parental rights to the subject child on the ground of abandonment. On July 18, 2016, the father failed to appear in court for the hearing. The father’s counsel, who appeared, asked to be relieved and requested an adjournment. He informed the court that the father wanted him to be relieved. The Family Court denied both applications and proceeded with the fact-finding and dispositional hearings. The father’s counsel did not participate in the hearings in the father’s absence. After the fact-finding and dispositional hearings, the Family Court found that the father abandoned the child, terminated his parental rights, and freed the child for adoption. The father appeals.Because the father failed to appear at the fact-finding and dispositional hearings, and his counsel did not participate in the hearings, he may not challenge on this appeal those portions of the order of fact-finding and disposition which found that he abandoned the child, terminated his parental rights, and freed the child for adoption (see Matter of Serenity C. W. [Antoinette W.], 158 AD3d 716; Matter of Willie Ray B. [Deanna W.B.], 77 AD3d 657, 657-658; Matter of Jaiyeola-Akintunde J., 8 AD3d 281).Contrary to the father’s contention, the Family Court providently exercised its discretion in denying his counsel’s request for an adjournment. ”The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant factors” (Matter of Sacks v. Abraham, 114 AD3d 799, 800; see Matter of Angie N.W. [Melvin A.W.], 107 AD3d 907, 908; Matter of Sicurella v. Embro, 31 AD3d 651, 651). Here, in light of the numerous prior adjournments and delays in this proceeding, as well as the father’s prior refusal to appear, the Family Court providently exercised its discretion in denying the request for an adjournment (see Matter of Daniel K.L. [Shaquanna L.], 138 AD3d 743, 745; Matter of Sicurella v. Embro, 31 AD3d at 651).The Family Court also providently exercised its discretion in denying the request of the father’s counsel to be relieved (see Matter of Blake T.L. [Robert L.], 141 AD3d 525, 526).RIVERA, J.P., ROMAN, HINDS-RADIX and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.US Bank National Association, etc., res, v. Ada Conroy, etc. appellants def — (Index No. 1882/12)Charles Fine, Farmingdale, NY (Kerry Lynch of counsel), for appellants.Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, Suzanne Novak, and Ryan Sirianni of counsel), for respondent.In an action to foreclose a mortgage, the defendants Ada Conroy, Michael T. Conroy, and John P. Conroy appeal from an order and judgment (one paper) of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered April 1, 2015, which, upon, in effect, the default of those defendants in answering the complaint and upon an order of reference of the same court entered April 10, 2014, inter alia, granted the plaintiff’s motion for a judgment of foreclosure and sale and is in favor of the plaintiff and against them directing the sale of the subject property.Motion by the plaintiff, inter alia, to dismiss the appeal on the ground that dismissal of a prior appeal for failure to perfect precludes consideration of the issues raised on this appeal pursuant to Bray v. Cox (38 NY2d 350). By decision and order on motion of this Court dated March 8, 2016, that branch of the motion which is to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it isORDERED that the branch of the motion which is to dismiss the appeal is granted; and it is further,ORDERED that the appeal is dismissed, with costs.In this action to foreclose a mortgage, the defendants Ada Conroy, Michael T. Conroy, and John P. Conroy (hereinafter collectively the defendants) previously appealed from an order entered April 11, 2014, which denied their cross motion, inter alia, to dismiss the complaint on the ground of lack of standing and to vacate their default in answering the complaint. That appeal was dismissed by decision and order on motion of this Court dated June 10, 2015, for failure to perfect (see NYCRR 670.8[e]). The defendants seek to raise the issues decided in the April 11, 2014, order on the present appeal. As a general rule, this Court does not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for failure to perfect, although this Court has the inherent jurisdiction to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 NY2d 750; Bray v. Cox, 38 NY2d 350). We decline to exercise our discretion in this case.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.U.S. Bank, National Association, etc., res, v. Doris Cardenas, appellant def — (Index No. 703082/14)In an action to foreclose a mortgage, the defendant Doris Cardenas appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), entered January 26, 2016. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Doris Cardenas and for an order of reference.ORDERED that the order is affirmed insofar as appealed from, with costs.In November 2006, the defendant Doris Cardenas (hereinafter the defendant) executed a note in the sum of $445,200 in favor of “First Franklin, A Division of National City Bank” (hereinafter First Franklin Bank). The note was secured by a mortgage on residential property in South Richmond Hill, Queens. The defendant defaulted on the loan by failing to make the monthly installment payment due April 1, 2013. The mortgage was later assigned to the plaintiff. In May 2014, the plaintiff commenced this action to foreclose the mortgage. The defendant served an answer in which she asserted, among other things, the affirmative defense of lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1001 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Genuth, 148 AD3d 687). However, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d at 726).Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the defendant’s default. In addition, the plaintiff established, prima facie, its standing as the holder of the note at the time the action was commenced by submitting an affidavit of its attorneys’ employee, who stated that the plaintiff’s attorneys were in possession of the original note endorsed in blank since October 24, 2013, a date which was prior to the commencement of the action (see U.S. Bank N.A., v. Ellis, 154 AD3d 710; U.S. Bank N.A. v. Cruz, 147 AD3d 1103, 1104; PennyMac Corp. v. Chavez, 144 AD3d 1006, 1007). In opposition, the defendant failed to raise a triable issue of fact.Accordingly, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Roman, Sgroi and Cohen, JJ.MATTER of Janet F. Silverman, ap, v. Town of Huntington, res — (Index No. 27762/13)Janet F. Silverman, Huntington, NY, appellant pro se.Cindy Elan-Mangano, Town Attorney, Huntington, NY (Thelma Neira of counsel), for respondent.In a proceeding pursuant to CPLR article 78, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated December 15, 2014. The judgment denied the petition, which sought to review a determination of the Board of Assessment Review of the Town of Huntington dated September 19, 2013, declining to reduce the assessed value of a parcel of real property, and dismissed the proceeding.ORDERED that the judgment is affirmed, with costs.The petitioner, who owns a parcel of real property in the Town of Huntington, commenced this proceeding pursuant to CPLR article 78 to review a determination of the Board of Assessment Review of the Town of Huntington (hereinafter the Board) dated September 19, 2013, which declined to reduce the assessed value of the property for the 2013/2014 tax year. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.Where, as here, a property owner alleges an unequal assessment, he or she is required to prove that the subject property is assessed at a higher percentage of full market value than either (1) the average of all other property on the assessment roll or (2) the average of residential property on the assessment roll (see RPTL 729[4]; Matter of Greenfield v. Town of Babylon Dept. of Assessment, 76 AD3d 1071, 1074; Matter of Pace v. Assessor of Town of Islip, 252 AD2d 88, 90). To make such a showing, the homeowner must first prove the full market value of his or her own property, which may be established by such methods as proof of a recent purchase price for the property, a professional appraisal, or proof of the sales prices or appraised values of comparable properties (see Matter of Greenfield v. Town of Babylon Dept. of Assessment, 76 AD3d at 1074-1075; Matter of Pace v. Assessor of Town of Islip, 252 AD2d at 90).Here, the evidence presented to the Board by the petitioner did not establish the full market value of her property. As such, the petitioner failed to show that her property was assessed at a higher percentage of full market value than either the average of all other property on the assessment roll or the average of residential property on the assessment roll. Accordingly, the Board’s determination declining to reduce the assessment was not affected by an error of law and was not arbitrary and capricious (see Matter of Greenfield v. Town of Babylon Dept. of Assessment, 76 AD3d at 1075).We note that the Town, in its brief on appeal, has not made any arguments with respect to the procedure employed by the petitioner in this case.MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.By Mastro, J.P.; Balkin, Connolly and Christopher, JJ.MATTER of Blanca Marlen Cruz, ap, v. Transdev Services, Inc. res — (Index No. 601936/16)Harris Beach, PLLC, Uniondale, NY (William J. Garry of counsel), for respondents.In a proceeding pursuant to General Municipal Law §50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), dated May 10, 2016, which denied the petition and, in effect, dismissed the proceeding.ORDERED that the order is affirmed, with costs.On January 23, 2015, the petitioner allegedly sustained personal injuries when she fell while riding on a bus owned and operated by the respondents, Transdev Services, Inc., and the County of Nassau. On March 23, 2016, the petitioner commenced this proceeding for leave to serve a late notice of claim upon the respondents. The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.A party seeking to sue a public corporation must serve a notice of claim on the public corporation within 90 days after the claim arises (see General Municipal Law §50-e[1][a]; Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455, 460). However, a court, in its discretion, may extend the time for a petitioner to serve a notice of claim (see General Municipal Law §50-e[5]). ”In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim” (Matter of Weaver v. City of New York, 138 AD3d 873, 874; see General Municipal Law §50-e[5]; Williams v. Nassau County Med. Ctr., 6 NY3d 531, 535). ”While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” (Matter of Iacone v. Town of Hempstead, 82 AD3d 888, 888-889 [citations omitted]; see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147). ”The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” (Matter of Vasquez v. City of Newburgh, 35 AD3d 621, 623; see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 465).The petitioner failed to establish that the respondents received timely, actual notice of the essential facts constituting the claim by reason of a police accident report filled out by an officer who responded to the scene of the petitioner’s accident. ”Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” (Caselli v. City of New York, 105 AD2d 251, 255). The fact that the Nassau County Police Department had actual knowledge of the accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the respondents (see Matter of Klass v. City of New York, 103 AD3d 800, 801; Hardayal v. City of New York, 281 AD2d 593; cf. Matter of Jaffier v. City of New York, 148 AD3d 1021, 1023).On the issue of prejudice, “the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d at 466). ”Once this initial showing has been made, the public corporation must respond with a particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed” (id. at 467). Here, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the respondents were not substantially prejudiced by the nearly 11-month delay from the expiration of the 90-day statutory period until the commencement of this proceeding in March 2016. Therefore, the burden never shifted to the respondents (see Matter of Fethallah v. New York City Police Dept., 150 AD3d 998, 1001).Finally, the petitioner did not provide a reasonable excuse for failing to timely serve a notice of claim (see Matter of Morris v. City of New York, 132 AD3d 997, 998).Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Cohen, Maltese and Iannacci, JJ.Yi Jing Tan, etc. ap, v. Gary Liang, et al., res — (Index No. 702679/12)Yinghao Yang, New York, NY, for appellants.Wang Law Office, PLLC, Flushing, NY (Jean Wang of counsel), for respondents.In an action, inter alia, to recover damages for breach of fiduciary duty and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Queens County (Duane A. Hart, J.), dated December 7, 2015. The order, insofar as appealed from, sua sponte, directed dismissal of the complaint pursuant to 22 NYCRR 202.27.ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as, sua sponte, directed dismissal of the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, and the matter is remitted to the Supreme Court, Queens County, for an inquest; and it is further,ORDERED that one bill of costs is awarded to the plaintiffs.In 2012, the plaintiffs commenced this action, alleging, inter alia, breach of fiduciary duty and unjust enrichment, and seeking to void certain stock transfers and real estate transfers. The plaintiffs were awarded a default judgment, and an inquest on damages was directed. The inquest was scheduled for November 18, 2015, and the parties appeared for the inquest on that day. The Supreme Court adjourned the matter to the next day, November 19, 2015, over the plaintiffs’ objection and despite a request of the plaintiffs’ counsel for an adjournment to a different day because she was unavailable on November 19. On November 19, 2015, the plaintiffs were represented by a per diem attorney, who was unprepared to proceed with the inquest. The court, sua sponte, directed dismissal of the complaint pursuant to 22 NYCRR 202.27. The plaintiffs appeal.A sua sponte order is appealable if leave to appeal is granted (see CPLR 5701[c]). Moreover, although the order appealed from was entered upon the plaintiffs’ purported default, the issues of the plaintiffs’ lack of readiness to proceed, and whether it was excusable, were “the subject of contest below” (Matter of Andrew J.U.M. [Jelaine E.M.], 154 AD3d 758, 759 [internal quotation marks omitted]; see James v. Powell, 19 NY2d 249, 256 n 3) and, therefore, are subject to review on appeal.Pursuant to 22 NYCRR 202.27(b), a court has the discretion to direct dismissal of a complaint where the plaintiff fails to appear or is not ready to proceed. Here, the Supreme Court based its decision to dismiss the complaint upon the plaintiffs’ lack of readiness to proceed on November 19, 2015, a date to which the court adjourned the matter despite its awareness that the plaintiffs’ counsel would not be available. Under the circumstances presented, the court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint (see Bank of N.Y. v. Castillo, 120 AD3d 598, 599).RIVERA, J.P., COHEN, MALTESE and IANNACCI, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.Jose Marulanda, appellant-res, v. Vance Associates, LLC, defendant third-party plaintiff- respondent-ap; U.S. Team, Inc., third-party def-res — (Index No. 20869/11)In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered March 9, 2015, as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1), and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment on the third-party cause of action for contractual indemnification.ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs to the plaintiff payable by the defendant third-party plaintiff, and one bill of costs to the defendant third-party plaintiff payable by the third-party defendant, the plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law §240(1) is granted, and the motion of the defendant third-party plaintiff for summary judgment on the third-party cause of action for contractual indemnification is granted.The plaintiff, a construction worker employed by the third-party defendant (hereinafter the general contractor), allegedly sustained personal injuries when he fell from a scaffold while engaged in demolition work at a building owned by the defendant third-party plaintiff (hereinafter the defendant). The plaintiff subsequently commenced this action, alleging, among other things, that the defendant violated Labor Law §240(1). The defendant commenced a third-party action against the general contractor, seeking, inter alia, contractual indemnification. Subsequently, the defendant moved for summary judgment on the third-party cause of action for contractual indemnification against the general contractor, and the plaintiff separately moved for summary judgment on the issue of liability on the Labor Law §240(1) cause of action. The Supreme Court denied both motions. The plaintiff appeals, and the general contractor cross-appeals.The Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law §240(1) cause of action. Labor Law §240(1) requires property owners and contractors to furnish, or cause to be furnished, safety devices, such as scaffolds, which are “so constructed, placed and operated as to give proper protection” to workers. ”To establish liability pursuant to Labor Law §240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries” (Viera v. WFJ Realty Corp., 140 AD3d 737, 738). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold that lacked safety rails on the sides, and that he was not provided with a safety device to prevent him from falling (see Vasquez-Roldan v. Two Little Red Hens, Ltd., 129 AD3d 828; Garzon v. Viola, 124 AD3d 715, 716; Silva v. FC Beekman Assoc., LLC, 92 AD3d 754, 755; Moran v. 200 Varick St. Assoc., LLC, 80 AD3d 581, 582). In opposition, the defendant failed to raise a triable issue of fact.Additionally, the Supreme Court should have granted the defendant’s motion for summary judgment on the third-party cause of action for contractual indemnification against the general contractor. The defendant established its prima facie entitlement to judgment as a matter of law by submitting a copy of a “Release and Hold Harmless Agreement,” together with evidence showing that it was free from any negligence in connection with the accident (see Brown v. Two Exch. Plaza Partners, 76 NY2d 172; Reborchick v. Broadway Mall Props., Inc., 10 AD3d 713, 714). In opposition, the general contractor failed to raise a triable issue of fact. The general contractor’s reliance on General Obligations Law §5-322.1 is misplaced, as that statute does not bar indemnification under the circumstances presented (compare Brown v. Two Exch. Plaza Partners, 76 NY2d 172, and Cabrera v. Board of Educ. of City of N.Y., 33 AD3d 641, 643, with Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 786). Here, the defendant is liable to the plaintiff under Labor Law §240(1) based solely upon its status as the owner of the premises. There is no evidence that the defendant was negligent, or that it directed, controlled, or supervised the manner in which the plaintiff performed his work (see Shea v. Bloomberg, L.P., 124 AD3d 621).Accordingly, the Supreme Court should have granted the plaintiff’s motion, as well as the defendant’s motion.CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Dillon, J.P.; Sgroi, Miller and Brathwaite Nelson, JJ.MATTER of Alan S. M. C. (Anonymous), ap — (Proceeding No. 1)MATTER of Diego A. M. C. (Anonymous), ap — (Proceeding No. 2) (Docket Nos. G-3144-18/18A, G-3145-18/18A)In related proceedings pursuant to Family Court Act article 6, the child Alan S. M. C. appeals from an order of the Family Court, Queens County (Robert I. Caloras, J.), dated March 2, 2018, and the child Diego A. M. C. separately appeals from a second order of the same court, also dated March 2, 2018. The orders, insofar as appealed from, upon reargument, adhered to an original determination in an order of the same court dated February 26, 2018, dismissing guardianship petitions, and denied the children’s separate motions for the issuance of an order, inter alia, making specific findings so as to enable each of them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J).ORDERED that the orders dated March 2, 2018, are reversed insofar as appealed from, on the law and the facts, without costs or disbursements, upon reargument, the determination in the order dated February 26, 2018, dismissing the guardianship petitions, is vacated, the petitions are reinstated and granted, the mother is appointed as the guardian of the children, the motions of the children for the issuance of an order, inter alia, making specific findings so as to enable them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC §1101(a)(27)(J) are granted, it is declared that the children are dependent on a juvenile court, and it is found that the children are unmarried and under 21 years of age, that reunification with their respective fathers is not viable due to parental abandonment, and that it would not be in their best interests to return to Mexico, their previous country of nationality and last habitual residence.In February 2018, the subject children each filed a petition pursuant to Family Court Act article 6 to appoint the mother as their guardian, for the purpose of obtaining an order, inter alia, making specific findings that they are unmarried and under 21 years of age, that reunification with the father of each child is not viable due to parental abandonment, and that it would not be in their best interests to be returned to Mexico, their previous country of nationality and last habitual residence, so as to enable them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC §1101(a)(27)(J). The children also separately moved for the issuance of an order making the requisite declaration and specific findings so as to enable each of them to petition for SIJS. In an order dated February 26, 2018, the Family Court dismissed the guardianship petitions on the ground that the mother “does not have legal status in this country,” and thus, did not constitute a New York domiciliary, as required to be appointed guardian.Thereafter, the children separately moved, among other things, for leave to reargue with respect to the order dated February 26, 2018. In two orders, both dated March 2, 2018 (one as to each child), the Family Court, inter alia, upon reargument, adhered to its original determination in the order dated February 26, 2018, dismissing the petitions, and denied the children’s motions for the issuance of an order, inter alia, making specific findings so as to enable them to petition for SIJS. The children appeal from the orders dated March 2, 2018.Under the circumstances of this case, the Family Court improperly dismissed the guardianship petitions. Contrary to the court’s determination, the mother was not required to demonstrate that she has “legal status in this country” or had taken steps to obtain such status to qualify as a guardian. ”[D]omicile means living in [a] locality with intent to make it a fixed and permanent home” (Chen v. Guo Liang Lu, 144 AD3d 735, 737 [internal quotation marks omitted; emphasis added]; see SCPA 103[15]). An individual’s lack of lawful status in the United States is “immaterial to the issue of his [or her] domicile and, therefore, his [or her] eligibility to receive letters [of guardianship]” (Matter of Lafontant, 161 Misc 2d 840, 841 [Sur Ct, Rockland County]; see also Plyler v. Doe, 457 US 202, 227 n 22; Jacoubovitch v. Jacoubovitch, 279 App Div 1027; Taubenfeld v. Taubenfeld, 276 App Div 873, 874). Here, notwithstanding the mother’s immigration status, the record demonstrates her intent to permanently reside in New York State. Thus, the mother cannot be deemed a “non-domiciliary alien” who is ineligible to receive letters of guardianship (SCPA 707[1][c]). Further, upon our independent factual review, we find that the best interests of the children would be served by the appointment of the mother as their guardian (see Matter of Axel S.D.C. v. Elena A.C., 139 AD3d 1050, 1051; Matter of Maura A.R.-R. [Santos F.R.---Fidel R.], 114 AD3d 687, 689).Furthermore, the Family Court should have granted the children’s motions for the issuance of an order making the requisite declaration and specific findings so as to enable them to petition for SIJS. Pursuant to 8 USC §1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC §1101[a][27][J][i]; Matter of Marvin E.M. de P. [Milagro C.C.---Mario Enrique M.G.], 121 AD3d 892, 893; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d 619, 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d 793, 795), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC §1101[a][27][J][ii]; 8 CFR 204.11[c][6]; Matter of Marvin E.M. de P. [Milagro C.C.---Mario Enrique M.G.], 121 AD3d at 893; Matter of Maria P.E.A. v. Sergio A.G.G., 111 AD3d at 620; Matter of Trudy-Ann W. v. Joan W., 73 AD3d at 795).Here, the children are under 21 years of age and unmarried, and since we have appointed the mother as the children’s guardian, the children are dependent on a juvenile court within the meaning of 8 USC §1101(a)(27)(J)(i) (see Matter of Silvia N.P.L. v. Estate of Jorge M.N.P., 141 AD3d 656, 657; Matter of Axel S.D.C. v. Elena A.C., 139 AD3d at 1052). Further, based upon our independent factual review, we conclude that the record supports a finding that reunification of the children with their respective fathers is not a viable option due to parental abandonment (see Matter of Diaz v. Munoz, 118 AD3d 989, 991). The record also supports a finding that it would not be in the best interests of the children to return to Mexico (see Matter of Palwinder K. v. Kuldeep K., 148 AD3d 1149, 1151; Matter of Wilson A.T.Z. [Jose M.T.G.---Manuela Z.M.], 147 AD3d 962, 964).Accordingly, the Family Court should have granted the guardianship petitions and the children’s motions for the issuance of an order making the requisite declaration and specific findings so as to enable them to petition for SIJS. Inasmuch as the record is sufficient for this Court to make its own findings of fact and conclusions of law, we declare that the children are dependent on the Family Court, and we find that the children are unmarried and under 21 years of age, that reunification with one or both of their parents is not viable due to parental abandonment, and that it would not be in their best interests to return to Mexico (see Matter of Axel S.D.C. v. Elena A.C., 139 AD3d at 1052).DILLON, J.P., SGROI, MILLER and BRATHWAITE NELSON, JJ., concur.